By David-James Gonzales
In the spring of 2006, during the months of March, April, and May, millions of protestors took to the streets across the nation in response to immigration reform legislation H.R. 4437, the Border Protection, Antiterrorism, and Illegal Immigration Control Act of 2005. This legislation—which was passed by the House of Representatives Dec. 16 2005—sought to further criminalize undocumented immigrants in the United States by making unauthorized entry an “aggravated felony.” The legislation also made provisions to erect a 700 mile long fence along the U.S.-Mexico border. The demonstrations that resulted in objection were some of the most significant instances of public opposition to federal legislative policy since the civil rights movement of the 1960s. The 2006 immigration protests, however, are but a more recent manifestation of the contentious immigration debate that has evolved in the United States since the era of the Chinese Exclusion Act of 1882. This debate has increased in frequency and intensity over the last 30 years, as evidenced by protests surrounding the following issues: the Simpson-Mazzoli bill of the 1980s; California’s proposition 187 passed in 1994; and more recently, Arizona’s tough new immigration law Senate Bill 1070, the so-called Support Law Enforcement and Safe Neighborhoods Act.
The protests that have surrounded the immigration debate over the last thirty years provide ample evidence of an apparent disconnect between public opinion and immigration reform policy in the United States. As evidenced by groups like the “Minuteman Project,” opposition to immigration reform goes both ways. While some groups favor increased border enforcement and decreased immigration, others favor more humane immigration policies that take into account the rights of families to avoid separation, and the acknowledgement of the presence and need for immigrant labor in the United States. While public displays of support or opposition to immigration legislation do not represent the opinion of the entire body politic, what they do provide is an indication of the ambivalence on this vexing issue that exists among the populace as a whole. This ambivalence leads one to question: what is the driving force behind immigration reform legislation in Washington? Is the drafting of legislation primarily driven by legislator’s perception and reading of public opinion, or are there other influences that play larger roles in stimulating immigration policy revision? This question is most certainly not tied exclusively to the topic of immigration reform, but rather, may be asked in regards to any “hot topic” issue that is currently being debated in the halls of Congress or the media at large. Few issues, however, strike as strong of a chord or touch as deeply to the core of the American public as the topic of immigration. It has been often stated that America is “a nation of immigrants” which blends all cultures and races through its “melting pot” effect into one nationality and people. I find it imperative, therefore, to investigate whether the voices in this “nation of immigrants” are the driving forces behind federal immigration policy.
This question has several plausible answers and prompts additional inquiries such as, what drives public opinion, and what additional factors other than public opinion influence legislation in Washington? These questions are particularly important because it should be understood that public opinion does not develop organically without the influence of external factors. Therefore, if public opinion is manipulated and thereby pre-determined, who or what is initiating the public discourse? This paper studies the connection between public opinion and federal immigration legislation by reviewing the legislative histories of two of the most significant pieces of legislation to arise over the last thirty years: the Immigration Reform and Control Act of 1986 (IRCA) and the Border Protection, Antiterrorism, and Illegal Immigration Control Act of 2005 (H.R. 4437). These two pieces of legislation promote interesting comparisons and insights into the immigration debate: how it originates, what influences are most influential in generating and shaping legislation, the role public opinion plays in this complex process, and why the legislation itself ultimately passes or fails. Further, analyzing these two pieces of legislation together brings to light trends that have developed over the last thirty years in regards to public opinion and federal policy as they pertain to immigration in the United States.
Public Opinion and Immigration
Public opinion is defined as, “the aggregate of views people hold regarding matters that affect or interest the community.” Since public opinion is made up of the views held by a group of people, it is clear that it will be constructed from a number of factors influencing individuals and the community. Factors that influence public opinion on immigration include, but are not limited to: the influence of media; the persistence of racial and ethnic stereotypes; economic outlook; political ideology; the influence of organized interest groups; geographic region and proximity; and demographic factors including race, gender, age, education, and income level. This paper examines public opinion in relation to immigration policy over an approximate thirty year time span—from the mid 1970s until 2006—paying special attention to opinion before and after the passage of IRCA in 1986 and the failure of H.R. 4437 at the close of the 109th Congress in 2006.
Mass media is, for most Americans, the primary source of information on just about everything. Because of the near impossibility to escape its reach at home, work, school, and in social settings, the power and influence of the media has increased exponentially over the last thirty to forty years in its control of the information the public receives, and thereby, how the public forms its opinions. For example, the agenda setting theory holds that the public will consider issues covered more frequently in the media as more important than issues that are not. Naturally, as media coverage increases during events like the 2006 immigration reform protests—or due to a raid on a local restaurant, dairy farm, or construction site—public opinion will begin to view the issue of immigration as salient, and additionally, the way the information is disseminated may affect ones opinion on the issue. Due to the coverage of national news in even the most remote rural communities, the influence of the media on public opinion can make the issue of immigration seem just as important in non-border states as it does for those states residing along the border. The frequency of the coverage as well as the extent to which the public interprets the coverage as alarming are both important factors to consider. In an examination of the messages and images presented on covers of ten of the most widely distributed national magazines between the years 1965 and 1999, Leo Chavez found that the issue of Mexican immigration was presented in an overwhelmingly alarming fashion. For an issue as contentious as immigration, the use of such sensational images—whether intentional or not—is certain to have a negative effect on public opinion regardless of geographic proximity to the border. Likewise, word selection and particularly the use of metaphors, also play a significant role in how the media shapes mass opinion and can subsequently affect immigration policy. In an extensive analysis of the public discourse between 1994 and 1999, Otto Santa Ana argues that the use of certain metaphors like “invasion,” “disease,” and “apocalypse” in editorial articles printed in the Los Angeles Times, had a tremendously negative influence upon how the public perceived Mexican immigration, affirmative action, and bilingual education in California propositions 187, 209, and 227. Perhaps aided by the harmful way the media represented the propositions, and the people associated with them, each proposition passed successfully; two of them, propositions 187 and 227, by overwhelming margins of 58.9% and 60% respectively. It is difficult to determine what percentage of the population accepts claims of impartial and professional journalism made by major media outlets, however, the fact that these powerful media conglomerates are able to determine what images, stories, and points of view are presented to the public, provide enough evidence of their ability to shape public opinion.
Like the media, ethnic stereotypes, especially when combined with an overall pessimistic outlook on the state of the nation’s economy, tend to have a strong influence upon how the public views immigration. Immigrants are frequently associated with ethnic minorities, and consequently, encounter similar kinds of prejudice and negative stereotyping. Immigrants are often stereotyped as being dirty, lazy, unintelligent, and refusing to assimilate. Further, like ethnic minorities, immigrants are commonly associated with being a drain on public resources like education, health care, and welfare, thus raising taxes for “hard working” Americans. During times of economic hardship and decline, deeply-rooted ethnic stereotypes seem to gain new acceptance and prevalence in society leading to negative views toward immigration policy. A study of public opinion polls from 1984 to 1997 found that 60 percent of Americans believe that many immigrants wind up on welfare, raise taxes, and overall cause problems for the United States. These findings were recently confirmed in regards to undocumented immigrants. According to a New York Times, CBS News Poll conducted between April 28 and May 2, 2010, 75 percent of those polled said, “illegal immigrants were a drain on the economy because they did not all pay taxes but used public services like hospitals and schools.” Such sentiment is often not based upon fact but hearsay, emotion, and prejudice. Further, negative opinion toward immigrants–documented or not—frequently ignores the fact, that a majority pay taxes and contribute to the overall health of the economy. For instance, in 2005, the Social Security Administration estimated that a “significant portion” of 6 to 7 billion dollars worth of Social Security tax revenue collected within the decade, had come from undocumented immigrants who, generally speaking had no legitimate way to make claims of the social insurance system. Immigrants provide a needed supplemental source of labor which American companies depend on and are more than willing to utilize. This causes some to blame immigrants for flooding the labor market, competing for jobs, and lowering wages. As alluded to earlier, economic concerns are likely to play a significant role in shaping public opinion on immigration. Labor market competition with immigrants is more likely to be felt by less educated and low-skilled laborers who are subsequently, more likely to express opposition towards expansive immigration policies. Conversely, those that are better educated, more financially secure, or those that are optimistic in their view about their own finances and the economy as a whole, are more likely to view immigration in a positive manner.
Additional factors likely to influence public opinion on immigration include: geographic region and proximity; political ideology or party affiliation; and other demographic characteristics not yet discussed like age, gender, race, and social status. These factors are harder to measure because other more salient issues—like the influence of the media, racial prejudice, and economic circumstances and outlook—have a stronger more direct influence over opinion. Therefore, conflicting data exists as to how each of these factors contributes to positive or negative views toward immigration. In regards to geographic region and proximity, opposing schools of thought like, contact theory and inter-minority conflict theory, debate over whether familiarity among ethnic minorities and whites breeds contempt or tolerance. This debate can be closely associated to another over which communities, urban or rural, are more accepting towards immigrants and immigration policy. Indeed, these conflicts within communities are clearly visible in states with large proportions of both ethnic minorities and immigrants as in California, Arizona, New Mexico, and Texas. In these states, and for the nation at large, what may be more important than proximity or locality is the quality of social interaction among races, ethnicities, and immigrants.
Immigration first entered the national spotlight in 1848 as part of the political platform of the anti-slavery, “Free Soil Party.” Since the mid-nineteenth century the issue of immigration has been viewed primarily as a political issue that pits groups of “citizens versus non-citizens, English speakers versus foreign language speakers, and whites versus non-whites.” As an issue that tends to divide people into opposing groups, a clear connection can be associated between the influence of political ideology and party affiliation on public opinion toward immigration policy. Indeed, a substantial proportion of the public define themselves politically and ideologically as liberal, conservative, or moderate; each group representing ones position on public policy issues across the political spectrum that are also tied into a “coherent belief system.” Initially, from the mid-nineteenth century to the mid-twentieth century, Republicans and Democrats both touted a very conservative and restrictionist view toward immigration. Since the 1960s however, the two parties have moved farther apart and become known for their ideological positions in either promoting or restricting immigration. Since many voters attach themselves to political parties based on how they identify themselves ideologically, one would think political party affiliation would be a clear indicator of one’s position on immigration policy. On the contrary, what researchers have found is that once ideology is taken into account, political party affiliation is not a clear indicator of opinion towards immigration policy. More so than partisanship, ideology may cross party lines or drive divisions within them. A very likely scenario could include a conservative Democrat voting against expansive immigration policy due to fears of economic competition, costs to tax payers, or racial prejudice. At the same time, a pro-business, conservative Republican may be in favor of expansive immigration policy due to the potential benefits to the business sector. Recent studies show this ambiguity as pointed out by Illias, Fennely, and Federico, “In a 2006 PEW Research Center/Pew Hispanic Center study, 46% of conservative Republicans preferred a temporary worker plan over options allowing unauthorized immigrants to stay in the United States permanently or to deport them. A slightly higher percentage of liberal Democrats (49%) strongly favored allowing unauthorized immigrants to reside in the United States permanently, but support for the three policies was more evenly divided among liberal/moderate Republicans and conservative/moderate Democrats.” Here again, my intent is to establish the influence political ideology and partisanship have on public opinion in regards to immigration policy. Like other factors however, political association is but one of many determinants of public opinion, therefore, it must be considered along with the factors already discussed.
The initial portion of this paper has been devoted to establishing the idea that there is no single factor that can accurately predict public opinion in relation to federal immigration policy. Undeniably, public opinion on immigration policy is a complex, multi-faceted issue that is shaped by numerous factors, not limited to those discussed in this paper. Considerable time has been spent establishing this premise, because it is important to consider, in regards to immigration policy, the possibility that due to the dynamics involved, public opinion may not be predictable or consistent enough for politicians to measure and respond to. Further, with so many controls involved in shaping and directing opinion, it is also possible that public sentiment is pre-determined by elite discourse. As such, it is impossible to argue that public opinion—in relation to immigration—forms independent of external factors. These factors will remain an important consideration throughout the remainder of this paper as we look into case studies on federal immigration policy in order to establish the connection between public opinion and the complex evolution of immigration legislation. As it is now clear that opinion is shaped by any number of factors and interests, then the question remains: if not public opinion, then who or what is determining the shape of federal immigration policy revision in Washington?
The Immigration Reform and Control ACT of 1986
Due to the multitude of powerful and influential private, political, ideological, and social interests involved, forging consensus on the contentious issue of immigration reform has never come easy in the United States. Perhaps no legislation is as exemplary of this statement, or would serve as a better case study to measure the influence of public opinion on immigration policy in Washington, as the years that involved the genesis, evolution, and eventual passage of the Immigration Reform and Control Act of 1986 (IRCA). Although IRCA was passed by both Houses of Congress late in the fall of 1986 and signed into law by President Ronald Reagan on November 6th of the same year, the struggle to pass what became the most comprehensive immigration policy in a generation actually began twenty years earlier with the end of the Mexican Labor Program, also known as the “bracero” program, in 1964. Prior to the termination of the bracero program, illegal immigration along the U.S.-Mexico border was not considered a serious problem. However, after President Johnson terminated the program—which was largely due to pressure from labor organizations like the AFL-CIO which complained that Mexican migrant farm workers were taking jobs from Americans and depressing wages —undocumented immigration began to rise rapidly and consistently throughout the remainder of the sixties and seventies. Prior to 1964, the number of apprehensions of undocumented immigrants along the U.S.-Mexico border had yet to exceed 90,000; by 1977 however, the total had ballooned to more than one million annually. The incredible rise in undocumented immigration across the southern border, coupled with unprecedented amounts of refugees from Cuban and South East Asia, raised alarm with both politicians and the public in general. In 1971, early attempts were made to curb illegal immigration through the implementation of various kinds of employer sanctions. The Rodino bill of 1971, backed by a strong coalition of labor interests along with LULAC and the NAACP, passed the House twice only to be blocked in the Senate by Senator Eastland (D-Miss), a politician well known to represent the interests of southern and western agricultural businesses. Throughout the remainder of the 1970s, the formation and increased presence in Washington of Hispanic interest groups, like the Mexican-American Legal Defense and Education Fund (MALDEF), the Congressional Hispanic Caucus, and the National Council of La Raza (NCLR), increased opposition to employer sanction bills on the grounds that they would lead to discriminatory hiring practices and other civil rights infringements. While Hispanic and agricultural interest groups were successful in blocking employer sanctions, public opinion was very much in favor of such legislative policies as evidenced by a 1977 Gallup Poll showing that 72% of those polled favored penalties for businesses and employers that hired illegal aliens.
As Congress failed to act on these increasing concerns, the Carter administration was feeling pressure from the public to do something quickly or risk an unfavorable backlash. In August of 1977, President Jimmy Carter released a comprehensive plan for addressing illegal immigration in which the following important provisions were outlined: one, stiff civil fines and criminal prosecution for employers with repeat offences of hiring undocumented immigrants; two, the social security card was to be used as the official document to verify ones eligibility for employment; three, an increase in the patrol and security of the southern border with Mexico; and four, an amnesty program granting permanent residence for all undocumented immigrants in the U.S. prior to 1970. While the provisions on employer sanctions would seem to have been in line with public opinion, Carter’s plan for granting amnesty to an estimated 3 to 6 million undocumented immigrants was highly controversial among interest groups, media and the public at large. Carter’s failure to gather significant bipartisan support from politicians and constituency groups prior to the release of his plan doomed it to almost immediate failure. Employer sanctions were denounced on both sides by business and civil rights lobbyists, as were provisions of amnesty which were seen as too generous by conservatives and too restrictive by liberals.
After the debacle of the “Carter Plan,” and due to unrelenting pressure from the public and media, in 1978 Congress formed the Select Commission on Immigration and Refugee Policy (SCRIP) in order to attempt to move toward bi-partisan immigration reform that would “transcend partisanship and special interests.” The SCRIP commission was made up of sixteen members including four members of the public, four Carter administration cabinet officials, and eight Congressmen. In March of 1981 the commission released its findings, the purpose of which, according to its chairman Father Hesburgh of Notre Dame University was, “to keep the front door open while closing the back door.” The most important assertions and provisions of SCRIP’s report entitled, U.S. Immigration and the National Interest were: one, “lawful immigration was a positive force in American life,” and that immigrants were “economically beneficial,” “less likely to draw upon social benefits,” “just as likely to create, as well as take jobs,” and “contribute to economic growth and productivity.” Two, Illegal Immigration was a serious problem that had to be resolved before legal immigration could be expanded; three, a recommendation that a program be implemented immediately to legalize the undocumented immigrants already in the country; and four, the creation of a non-discriminatory immigration policy with adherence to racial and civil rights. In their recommendations, SCRIP made its views on controversial issues very clear; the first being, that immigration was a “benefit” to the country and that immigrants from South East Asian and Latin American countries were making “valuable contributions” and were “assimilating easily.” These statements from SCRIP were in complete contrast to prevailing public sentiment. A 1982 AIPO, Roper Center poll presented respondents with a list of nations, racial, and ethnic categories. Respondents were asked to consider whether each group had been a “good thing” or “bad thing” in light of what each group had both “contributed to” and “gotten from this country.” Strikingly, the top five groups listed as having the most positive impact on the country were racial or ethnic whites from European nations, each of them being overwhelmingly viewed as a “good thing” by as much as 66 percent of respondents. On the other hand, the bottom six groups were all from Latin American or South East Asian countries. These immigrants were overwhelmingly viewed as a “bad thing” by as much as 59 percent of respondents. The second controversial issue SCRIP supported was the idea of employer sanctions to curb illegal immigration. In this case, SCRIP was right in line with public opinion. According to a June 18, 1980 Roper Poll, 91 percent of respondents, “wanted the federal government to make an all-out effort against illegal entry into the U.S.” Further, in November of the same year, a Gallup Poll asked, “Do you think it should or should not be against the law to employ a person who has come to the United States without proper papers?” Sixty-six percent of those polled, felt that it should be illegal to employ an undocumented immigrant. On the third issue of creating a process towards legalization for undocumented immigrants already in the country—a process many considered amnesty—52 percent polled in the same November 1980 Gallup Poll were against granting amnesty while 37 percent supported it. These comparisons suggest that although SCRIP was hailed by politicians as bi-partisan, it was not completely in line with public opinion. Further, SCRIP had little if any affect on public opinion after the report was released. These things aside, perhaps the most important contribution of SCRIP, was that it sparked an “arms race” of sorts between the Reagan administration and Congress to do something on the explosive issue of immigration reform. Many politicians had avoided the issue altogether after the failures of the early seventies, however, with the decade now behind them and a recent landslide victory for Reagan and his “conservative revolution” threatening the seats of the democratic majority in the House, it seemed like the winds in Washington were changing. For immigration reform, SCRIP was a key juncture that paved the way for the next decade, one which would preside over the most expansive immigration reforms in thirty years.
Early in 1982, two members of SCRIP, Senator Alan Simpson (R-WI) and Congressman Romano Mazzoli (D-KY), co-authored the Immigration Reform and Control Act of 1982. As the basis of their legislation the authors used two of SCRIP’s main suggestions, the use of employer sanctions, and a program of legalization for undocumented immigrants currently residing in the United States. One significant departure from the SCRIP commission however, was a 450,000 person cap on the immediate relatives of those eligible for legalization. The purpose of the legislation, as defined by its authors, was to end the flow of illegal immigration with employer sanctions while, “showing generosity to those already here.” Although the legislation faced an uphill battle being introduced into both houses of Congress during an election year, public opinion polls suggested the legislation was well over due. In March of 1982 a Roper Survey found that 66 percent of respondents wanted immigration cut back. Further, a May 1982 Merit Survey Poll found that 84 percent of those polled were concerned with the number of illegal aliens in the U.S. Certainly, some portion of the public’s concern over immigration had to do with the recent legislation itself and the media attention it was receiving. However, public opinion was clearly expressing restrictionist sentiments, as it had been for the preceding decade, while at the same time legislators in Washington were willing to grant amnesty to millions of undocumented immigrants. While some in the media hailed the legislation for its generous provisions, others saw a clear connection that such a move would only serve to encourage future waves of undocumented immigrants hoping for a similar welcome. The republican majority in the senate passed the initial version of Simpson-Mazzoli with flying colors, 80-19, notwithstanding the partisanship being expressed in the media or by the public. The democratic majority in the House on the other hand, with its unresolved inner party divisions that had been simmering since the mid seventies, was at the heart of the battle that would be played out over the next four and a half years. Divided between the interests of growers, labor, and Hispanic and civil rights groups, the House conducted all out “guerilla warfare” on its version of the bill. By the time the 97th Congress drew to a close, the house version of Simpson-Mazzoli reached the floor with some 300 amendments, which most certainly ensured the bill had no chance of clearing the chamber before session’s end. While Congress had failed once again to make significant progress toward meaningful immigration reform, the United States Supreme Court, perhaps uniting with public sentiment in making the statement that immigration reform was long past overdue, had handed down its decision in the case of Plyler v. Doe. As what could be construed as a rebuke to the federal legislature for inaction on this salient issue, the court in essence extended 14th Amendment equal protection rights to undocumented school children.
When the 98th Congress assembled early in 1983, Simpson and Mazzoli decided to pick up the bills where they had left off in prior sessions. Both bills where again presented to their respective chambers and accordingly as it had done the first time, the senate version (S. 529) passed with little opposition, 76-18. This time however, the senate added provisions that favored its business and conservative friendly interests: the first being, that INS agents would need to obtain a search warrant before raiding an open field; and the second, that permanent residence would be extended to those in the U.S. as of 1 January 1977, and temporary residence for those as of 1 January 1980. In House committee debates, growers received a 300,000 temporary worker program to appease their demands for labor, while civil rights groups were given anti-discrimination protections for legal aliens, and an expansion on amnesty provisions that would raise the cutoff date to 1 January 1982. While Congress was busy “wheeling and dealing” to pass some form of acceptable legislation to satisfy interest groups and partisan affiliations, public opinion, for the most part, had remained unchanged from the prior year. In an October 1983 Gallup Poll, 79 percent of respondents continued to favor penalties for employers and businesses hiring undocumented workers, while 52 percent opposed permanent residency programs. Consequently, at the time the House seemed to be making progress in moving the bill forward, Speaker Tip O’Neill, unhappy with the lack of unity in his party, and worried over reports that President Reagan would veto employer sanction legislation in an attempt to win over Hispanics in the upcoming 1984 presidential election, effectively killed the legislation when he made the announcement that Simpson-Mazzoli would not be allowed to proceed to the floor for debate. Although Speaker O’Neill would eventually succumb to harsh criticism from the media, which accused him of obstructing immigration reform in favor of partisan politics, the damage had been done and IRCA was pushed aside for another year. So we see that in 1983, as public opinion remained fairly constant in its opposition to expansive immigration policy, both houses of Congress moved to add provisions that would ensure the continued flow of labor across the border, while granting some pathway of legalization for those already here. Further, by the end of the year, partisan affiliations and constituency interest groups had once again taken precedence over another chance at passing immigration reform.
As Congress reconvened in 1984, key House members began to support policy innovation that would reconcile the differences which had prevented IRCA’s passage. At this time, public opinion on the legalization of undocumented immigrants remained constant in relation to the prior two years. A June 1984 Gallup Survey showed 55 percent of those questioned opposed amnesty, whereas 35 percent supported it. Another survey in the same month conducted by Newsweek, showed almost identical figures with 34 percent of those polled supporting amnesty and 55 percent favoring deportation. An interesting dynamic became evident in this same June 1984 Gallup survey, when opinion polls began to show that Americans carried mixed feelings about their immigrant counterparts. Sixty-one percent of the respondents in the June Gallup survey said they believed immigrants took jobs from U.S. workers, nonetheless, 81% admitted that immigrants worked hard and took jobs that most Americans didn’t want. And again in the June Gallup Survey, 61 percent of those questioned said immigrants improved culture while at the same time, 59 percent said immigrants wound up on welfare and raised taxes. Such ambiguity may have been a reflection that the public was becoming weary of the immigration debate, as it had been at the forefront of news headlines, public discussion, and Congressional debates for the past six years. On the other hand, these seemingly contradictory opinions may have simply been a representation of the historical ambivalence Americans have shown towards newcomers. Surely these figures did not go unnoticed as the House prepared to vote on Simpson-Mazzoli in the summer of 1984. However, just how much consideration Congress was giving public sentiment can be questioned. It seems that at this juncture, more so than mass opinion, the legislature continued to respond to more predictable and influential groups. Such interests, in contrast to mass opinion, favored more expansive immigration reform in terms of guest worker programs and amnesty provisions, rather than strict employer sanctions and less generous forms of legalization.
In June of 1984, the House passed the Simpson-Mazzoli bill for the first time by a margin of five votes, 216-211. As the vote indicated, the House was still evenly divided on issues of legalization, employer sanctions, and a temporary worker program. Despite compromises which expanded amnesty, increased the temporary worker program, and ensured anti-discrimination protections, the legislation would not prove strong enough to make it past the Senate and House conferees which were unable to reconcile the bill with demands from the Reagan administration. Although another attempt at immigration reform had failed, the battle to pass IRCA in 1984 truly set the stage for its eventual passage in 1986. The ability of the House to finally pass a bill showed that they were now on board with the Senate and the Reagan administration in at least acknowledging that immigration reform was necessary and imminent. Indeed, the question of whether immigration reform would be passed was no longer a matter of if, but how, and when.
The answer to when immigration reform would be passed would not come in 1985, however, to comprehend how it was passed in 1986 requires an understanding of the principal powers and interests upon which its passage hinged. As we have seen in assessing public opinion data from the late seventies up to the mid eighties, public sentiment had consistently favored reductions in the number of immigrants allowed into the country with high levels of support for employer sanctions. Further, in regards to amnesty or legalization provisions, public opinion was consistent in its opposition to such policy, even showing preferences towards deportation. From the onset however, it seemed policy was not going to follow public opinion in these restrictionist sentiments. Indeed, both SCRIP and IRCA were unequivocal in advocating for some form of legalization for undocumented immigrants already in the country. While employer sanctions were meant to be the counterweight to legalization and were intended to reduce the flow of immigrants across the border, as IRCA progressed, such provisions were weakened to the point that their effect after implementation was negligible. And as employer sanctions and legalization were the primary sources of IRCA’s failure in the house from 1982 to 1983, the development of a guest worker program—despite SCRIP’s explicit statement that it would lead to abuses and exploitation—its appearance in IRCA took center stage in the debate between 1984 and 1986. The final compromise that resurrected IRCA in the fall of 1986, leading to President Reagan signing it into law on November 6th of the same year, was the guest worker policy and how it had evolved to benefit the interests of agriculture. Ironically, while it was the interests of southern and western agribusiness that prompted Senator Eastland (D-Miss) to block Congressman Rodino’s (D-NY) employer sanctions bills during the early seventies, with the passage of IRCA, about a decade later, we see this conflict renewed and brought full-circle with agricultural interests again ending up on top. Thus, while it can be argued that public opinion—fed no doubt by the media frenzy surrounding the issue—played a central role in applying pressure on politicians to initiate and press forward with immigration reform, the resulting policy shows significant evidence for the preeminence politicians gave to special interest groups in developing and passing the Immigration Reform and Control Act of 1986.
H.R. 4437: “The Sensenbrenner Bill” of 2005-2006
Like IRCA in 1986, the build up to the Sensenbrenner bill began years before it was presented to the House in 2005. In fact, the genesis of H.R. 4437, and its sister legislation in the senate S. 2611, can be seen as evidence for the failures of previous immigration reform, perhaps the most significant and controversial of which was IRCA. According to a New York Times article published in January of 2004, “…between 1986 and 1998 Congress increased the Border Patrol’s budget six-fold. Over that time the number of undocumented immigrants in the U.S. had doubled to eight million.” This New York Times article was published shortly after President Bush had brought immigration reform back into the national spotlight by announcing a temporary worker program for undocumented immigrants already in the U.S. After the terrorist attacks of September 11th 2001, immigration reform—which had previously been one of President Bush’s major platform issues while campaigning for the presidency in 2000—had been placed on the backburner, while the nation dealt with the aftermath of post 9/11 concerns over the economy, war in the Middle East, and potential terrorist attacks. The president’s new plan included the conditions that an immigrant must have a job by a sponsoring employer in order to apply for temporary worker status, and that workers would have to renew their permits or leave the country upon completion of their employment, or risk deportation. While Bush’s guest worker program was intended to be a “call to action” for Congress to do something about the estimated 8-12 million undocumented immigrants in the U.S., the actual effect of his proposal drove a sharp divide within the Republican Party, which controlled both houses of Congress.
For the most part, the conservative wing of the president’s party conducted an out-right revolt against the plan. As 2004 was an election year, politics had a heavy hand in how the reform was received. Many conservatives denounced the program in order to appeal to the core of their constituencies in an attempt to distance themselves from controversy surrounding the war in Iraq and a sluggish economy. Further, many in and out of the Republican Party accused the president himself of playing politics, trying to appeal to Hispanic voters in his upcoming bid for re-election. Politics aside, Congress was also divided along interests similar to those that alienated politicians in the 70s and 80s as they attempted to pass comprehensive immigration reform. These interests, such as labor, business, and immigrant/civil rights, made it difficult for either party to unite around a single piece of legislation in the coming years. The owners of large corporations, like hotels and nursing homes, looked forward to Bush’s guest worker program: they saw it as an opportunity to gain legitimate access to large pools of cheap unskilled labor that could make up for the shortages they were experiencing. Organized labor on the other hand, worried about job competition, wage depression, and job loss for Americans. They saw the president’s plan as a threat to the occupational security of blue-collar workers, and demanded a wage floor and protections to prevent unscrupulous employer practices. Lastly, immigrant and civil rights groups received the plan with mixed feelings. To some, the plan would simply perpetuate the exploitation and marginalization of groups that had long been taken advantage of, while to others, the guest worker program was welcomed as a potential pathway to legalization.
If all of this sounds familiar, it should. Many of the problems legislators and constituency groups had with the president’s proposal were but extensions of the debates that have surrounded immigration reform for decades, if not generations. One contrast between the climate that led to the Sensenbrenner bill versus that which led to IRCA, is the degree to which public opinion was involved in creating a movement towards immigration reform. With IRCA, public opinion and the media had been pressing legislators for more than a decade to do something about rampant illegal immigration and the waves of refugees being received from Cuba and South East Asia. In contrast, prior to the release of President Bush’s guest worker program the issue of immigration was not on the minds of most Americans. In a November 2003 to February 2004 Gallup Opinion Poll, respondents were asked to select from a list what they considered to be “the most important problem” facing the nation. The top three issues selected were the economy, the war in Iraq/terrorism, and unemployment (18%, 18%, and 12% respectively). While immigration was included in the survey, only three percent of those polled selected it as the “most important problem,” placing it twelfth on the list overall. It was not until the spring of 2006—after the Sensenbrenner bill had passed the House in December; after the protests triggered across the nation in response to H.R. 4437 and S. 2611 had received national prime-time media coverage, and after President Bush and Congress had publicly debated the issue of immigration reform for more than 2 years—that immigration rose to significant levels of national salience. In fact, according to a 2007 study, which measured levels of public salience on the issue of immigration from July 2004 to May 2006, researchers found that the issue of immigration rose by 10 percent, in measure of public salience, after the passage of the Sensenbrenner bill and peaking just after the protests in April and May. So in contrast to IRCA, it seems public opinion was not the driving force that initiated the movement towards the immigration reform that produced H.R. 4437 or S. 2611. In this case, the genesis of the House and Senate bills seem to be more a matter of politics, initiated by efforts to appeal to interest and constituency groups during what politicians anticipated would be a challenging campaign year.
About a month after President Bush had released his guest worker proposal, Congress was busy drafting alternative bills to address immigration, foreign farm workers, and the undocumented labor issue. One bill coming from the right-wing of the Republican Party was H.R. 4437, the Border Protection, Antiterrorism, and Illegal Immigration Control Act of 2005, whose main sponsor was Jim Sensenbrenner of Wisconsin. The main provisions of the bill were the following: “illegal presence” in the United States would become a felony instead of a misdemeanor punishable by 1 year imprisonment; all employers would be required to verify the legal status of their workers through either electronic or phone procedures with civil penalties for hiring illegal aliens increased; “knowingly” hiring ten or more illegal aliens would be considered a smuggling offense punishable by up to 5 years imprisonment; “alien smuggling,” or aiding, soliciting, counseling, and abetting illegal entry into the country would be an “aggravated felony” punishable by 3 years imprisonment; and police officers could be “deputized” to enforce immigration policy. The House also, later approved an amendment to the bill that would build 700 miles of fencing along the US-Mexico border. Around the same time H.R. 4437 was being debated in the House, the Senate was busy working on its own version of immigration reform, S. 2611, the Comprehensive Immigration Reform Act of 2006. Per its name, the Senate bill was a comprehensive, “three-pronged” approach similar to IRCA that sought to use a combination of border enforcement and employer sanctions, legalization, and a guest worker program. The two bills were polar opposites in their approach to solving the issue of illegal immigration and represented the sharp divisions that existed in Congress. Sensenbrenner’s bill focused entirely on enforcement with no concessions to business, e.g. a guest worker program, or immigration and civil rights groups, which desired a process towards legalization. S. 2611, while an attempt at more comprehensive reform by including legalization, guest worker, and employer sanction provisions that would appeal to business, labor, and civil rights interests; was like H.R. 4437 in that it had an unbalanced amount of support from republicans, as evidenced by the bill’s six co-sponsors, five of whom were republican. In the end, neither bill could receive enough support to clear the House and Senate conference committees, and thus, the legislation died with the end of the 109th Congress.
That public opinion had very little to do with generating immigration reform between late 2003 and the middle of 2006 does not mean it did not play a significant role in the outcome of H.R. 4437 and its parallel legislation S. 2611. On the contrary, it seems public opinion and partisanship played critical roles in determining how politicians would vote on the two bills.
The major difference between the Congress that generated and debated the Sensenbrenner bill and S. 2611 (109th), from that which passed IRCA (97th and 98th), was not so much the distribution of Republicans and Democrats in Congress, as it was the approach used to generate and pass the legislation. Although Republicans held the majority in both houses of the 109th Congress, the ratio of Republican to Democrat representation in the Senate (55/45) was not much different from the 97th (53/47) and 98th (55/45) Congresses, which also had Republican Senate majorities. In regards to representation, the differences between the three Congresses lay in the House, with the 97th and 98th Congresses holding Democrat majorities of 244/191 and 272/163, respectively; and the 109th Congress having a Republican majority at 225/207. Interestingly, among the three Congresses, the only party to hold a statistically significant majority in comparison to the other two was the Democrats of the 98th Congress. However, even though Democrats had a significant majority in the House, the Republicans of the 98th Congress still maintained control of the Senate, and therefore, had to work with Democrats across the aisle to pass IRCA in 1986. One would think that having control of both houses, as the 109th Congress did from 2004 to 2006, would have made it easier for Republicans to impose their will upon Democrats. While this was certainly true in the House of the 109th Congress, which passed the Sensenbrenner bill by a vote of 239 to 182 (note the ratio of Republicans to Democrats in the House at this time was 225/207), the Senate did not hold a large enough majority to avoid a filibuster by Democrats which could be used to prevent the passage of H.R. 4437. These points taken together increase the likelihood that partisan divisions kept the 109th Congress from reconciling H.R. 4437 with S. 26ll to pass comprehensive immigration reform as called upon by President Bush in early 2004.
Before closing with a discussion of public opinion and its effect upon the partisan politics that played out in the 109th Congress, it is important to remember the background associated with the passage of IRCA in 1986. The two principle sponsors of IRCA, Alan Simpson (R-WI) and Romano Mazzoli (D-KY), were part of the bipartisan SCRIP commission formed by the 97th Congress and the Carter administration in 1978. As a result of the findings of this commission, and the bipartisan relationships and framework it laid down in establishing immigration policy, it seems the 97th and 98th Congresses were better prepared to approach the issue of immigration reform. This is not to say that the 97th and 98th Congresses did not have tremendous tensions and pressures from partisan constituencies and interest groups; as has been discussed in this paper, they most certainly did. Nor am I implying that the policy passed in 1986 was successful in solving the nation’s immigration problems, as it most certainly did not. However, it is certainly arguable that by incorporating findings from SCRIP, holding joint House and Senate hearings prior to drafting a bill, and having the bill co-sponsored by two members of Congress from each side of the aisle that had previously served on immigration subcommittees, IRCA had a much better chance at passage. The lack of bipartisan support was unquestionably one of the principle factors that prevented comprehensive immigration reform from 2004 to 2006, and is perhaps, still a major factor today.
Shortly after the immigration protests in April of 2006, a Gallup Poll showed that immigration was now considered the second “most important problem” facing the nation. Only the war in Iraq was more important in the minds of those surveyed. And while the 109th Congress was attempting to reconcile H.R. 4437 with S. 2611, the public was beginning to weigh in on their preferences for immigration reform. An April 2006 Los Angeles Times/Bloomberg Survey measured public preferences on each bill. The survey found that 63 percent of those polled favored the Senate’s approach of comprehensive reform, over the 30 percent that favored the House’s enforcement only approach. In the same survey, when respondents were asked specifically about their feelings in regards to a guest worker program, 54 percent agreed with President Bush and the Senate, favoring such a plan, while 21 percent did not. Interestingly, among those surveyed, 54 percent of Republicans supported a guest worker program while 24 percent were opposed. In regards to Independents, 60 percent were in favor while 22 percent opposed; and among Democrats, 48 percent favored the plan while 18% percent opposed. When asked about legislation that proposed a pathway to legalization for undocumented immigrants now living in the U.S., 2 out of 3 supported such a plan, while 1 in 5 opposed. Showing similar bipartisan support for a pathway to legalization as was found in the guest worker program; 67 percent of republicans, 71 percent of Independents, and 59 percent of Democrats all supported legalization. Lastly, when asked about the issue of fencing and criminalization, 42 percent of those surveyed by LA Times/Bloomberg supported a plan similar to that of the House over 35 percent that opposed. What are we to gather from all of this data? For one, the majority of those polled clearly favored a plan similar to that being presented in the Senate in the form S. 2611 over the House’s H.R. 4437. Secondly, an evaluation of the data reveals bipartisan support on behalf of the public, in preferring S. 2611 to H.R. 4437. With much of the public supporting the Senate’s approach to reform over that of the House, one wonders why the bills were never reconciled. In an attempt to answer such a question without being too simplistic, I refer back to the composition of the 109th Congress and the events that triggered the frenzy for immigration reform in 2004.
While the Republican Party held majorities in both houses of the 109th Congress, it, like the Democratic Party during the seventies and eighties, was divided between its conservative and moderate caucuses. The more conservative-wing, led by Jim Sensenbrenner and his H.R. 4437, favored a restrictionist policy that focused almost exclusively on enforcement. The Senate’s more comprehensive approach, S. 2611, represented the moderate-wing of the Republican Party that sought, at least in some way, to seek bipartisan support from Democrats and Independents. Despite the Senate’s attempt at bipartisanship, it seems S. 2611 may have come a bit too late in order to avoid the polarized environment that had developed during the 2004 campaign season. It is very likely the partisan divide sparked in 2004, continued into the 109th Congress as the war in Iraq took center stage as the nation’s top issue and became the primary cause for President Bush’s declining approval ratings. During the same week the House passed H.R. 4437, an ABC/Washington Post Survey found 47 percent of respondents approved of the job President Bush was doing, while 52 percent disapproved. The same survey in May of 2006, after the immigration reform protests of April 10th and May 1st, found 33 percent approved of President Bush while 65 percent disapproved. These numbers are intriguing considering—at least according to the April 2006 LA Times/Bloomberg Poll—that a majority of the public favored immigration reform similar to that which President Bush proposed in January of 2004 and had advocated since. However, such a drastic decline in President Bush’s approval ratings over a relatively short time span may indicate why some G.O.P. members were hesitant to cast their lot with the president on this issue.
Studies on public opinion, roll call voting, and immigration reform during the 109th Congress confirm that indeed, partisanship was a significant factor in determining how members of Congress voted for immigration reform. In regards to the House, it was found that constituency opinion and desires for re-election strongly motivated Congressmen to vote along party lines. This meant that representatives of traditionally Republican districts in the west; south; and those which carried higher proportions of blue-collar workers disproportionally voted yes on H.R. 4437. It goes without saying that whether one was Republican, and more particularly a junior member of Congress, also made it more likely for a yes vote on the House bill. However, one variable of particular salience, were districts which had proportionally large concentrations of Hispanic voters. The representatives for these districts overwhelmingly voted against H.R. 4437, regardless of party affiliation. Feeling pressure from the public; the media; and a public call to action by the President, after returning from Easter recess the Senate passed S. 2611, 62-36. Note that while Republicans held a representative majority in the Senate of 55-45, cloture was invoked in order to end debate and force a vote, thus showing the partisan divide that existed even in the more bipartisan Senate. One gathers from these findings that after the huge unfavorable public response to H.R. 4437, as represented by the 2006 immigration reform protests, politicians were increasing polarized along party lines preventing any chance at bipartisanship efforts to reconcile the two bills.
In analyzing public opinion in relation to immigration reform over an approximate thirty year time span, some thought provoking trends are revealed. First, while it is difficult to determine the factors which most directly affect public opinion, it is certain that the media and elite discourse have a significant impact on the way the public perceives the issue of immigration. In the 1970s and 1980s, public opinion was alarmingly restrictionist in tone; undoubtedly responding to concerns over the economy, and the role immigration had on its recovery. It should be remembered that while Congress was debating immigration policy, tens of thousands of refugees were entering the country each year; and illegal immigration, despite increasing attempts to strengthen border enforcement, was out of control. Unquestionably, these issues were being circulated throughout the country by a press and national media that were coming of age during a time when technology was increasing the speed and reach of global communication by exponential factors. In the case of H.R. 4437 and the 109th Congress, the media seems to play an even more influential role, as public salience in relation to immigration did not show noticeable levels of concern or awareness until after the 2006 immigration protests. Hence, in this instance, rather than generating legislative action, public opinion was reacting to the discourse coming out of Washington as it was received through increasing amounts media coverage. Second, the role to which public opinion generates, influences, and eventually determines immigration reform, is likewise both certain and ambiguous. As seen in the case of the 109th Congress, politicians are very much aware of constituency opinion—especially as it relates to their ability to keep their seats—and at times will vote in a representative fashion. However, as I just mentioned, it seems more likely that rather than public opinion, partisan politics initiated the immigration discourse and the legislation that followed, during the 109th Congress. In the case of IRCA, there was a strong correlation between increasingly persistent and negative public opinion, which resulted in the efforts of Congressman Rodino; the Carter Administration; the formation of the SCRIP commission; and the momentum that propelled the four year evolution of IRCA itself. However, it is also certain, that public opinion was not the only factor, nor the primary factor that determined the final provisions that found their way into IRCA as it became law in 1986. Third, since it has been established that public opinion is not isolated from external influences—like the media; racial and ethnic stereotypes; economic outlook; political ideology; interest groups; and geographic and demographic characteristics—it should be conceded that forces other than public opinion are directing immigration policy in Washington. However, determining what these forces are, and categorizing them hierarchically to establish which has the greatest ability to manipulate immigration policy, is perhaps the most perplexing question of those addressed in this paper and requires further investigation to produce a more concrete conclusion.
Lastly, as we look to the future of immigration reform over the next thirty years, an interesting dynamic to behold will be the tone of public opinion, as the demographic composition of this “nation of immigrants” continues to resemble the Hispanic and Asian populations that its policies have tried so desperately, while at the same time unsuccessfully, to keep out. In comparison to IRCA’s generation, will public opinion continue along the more welcoming trend exhibited by the polls surrounding immigration reform of the 109th Congress? Or, will there be a resurgence of restrictionist sentiment in a futile effort to prevent what has already, and is continuing to happen?
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