Why the Immigration Bill Died

A week after Senators gleefully forged a compromise on the immigration bill, I said it was dead. I'm not clairvoyant, but I was ahead of the curve because I've seen this dynamic before. There's a physics to legislation, a rhythm that's mysterious but perceptible. When the left and right get their juices up over something--the tobacco settlement of the mid-90s or the Clinton health care plan--then things only spin out of control.

I covered the tobacco settlement which began with much higher hopes than this deal ever did and that was years before the blogging revolution enabled critics of a bill to mobilize so easily. State Attorneys general had crafted an historic compromise with Big Tobacco: an end to most lawsuits in exchange for extreme self regulation and payments to fund antitobacco programs. The deal was considered remarkable, a hugse step forward for public health. But the public health groups wanted more and so did Congressional Democrats who wanted the tobacco companies to pay billions more and agree to even more restrictions and who wanted to leave open the door to much more litigation. For the next few months I spent a lot of time with the architects of the deal, Dickie Scruggs, the famed trial lawyer, and Mike Moore, then Mississippi Attorney General. Congress needed to sign off on the deal and John McCain, once more, tried to forge a middle ground--the right was mostly on board, but it had its critics--but the deal went down to defeat. Eventually the states crafted a more limited deal with the tobacco companies. The Hillary health care plan was mostly defeated by opposition from the right, but the left had its objections too.

This is fundamental physics: Almost all bills lose strength as time goes on, rather than pick up strength. (NAFTA in the early 90s was one of the few exceptions where it gained strength over time, a testiment to the political prowess of a young Clinton staffer named Rahm Emanuel who effectively ran the NAFTA operation.) When a bill has enemies on the left and right, it loses strength that much more quickly Immigration had nowhere to go but down and the early criticism from both sides--mostly on the right but also on the left--doomed the bill.

I thought the Bush-Kennedy-McCain plan was more right than wrong because it offered some system for bringing millions of people out of the shadows and because it would replace the current chaos with some order. A lot of it seemed wrong but, to me anyway, it also seemed fixable over time. But bill proponents like me missed something fundamental and obvious here. There's a huge consensus for securing the borders and no consensus for what to do with persons already here. That sounds simple but it's an inescapable truth that eluded everyone here.

Of course, securing the borders without a comprehensive plan to ease pressure on the borders is probably a fool's errand but that's where we are now. So we'll put a lot more guards on the border, build some (undoubtedly permeable) fence and see what happens. Maybe that will create the political space where we can get to a plan in a few years under President Obama or Romney or whoever.