Schumer ‘exploring’ passing immigration unilaterally if talks unravel

Senate Majority Leader Charles Schumer (D-N.Y.) is exploring if Democrats could bypass the filibuster on immigration reform as part of a backup plan if bipartisan talks unravel.

Schumer told the Congressional Hispanic Caucus (CHC) earlier this year “that he and Senate Democrats are actively exploring what is possible to do on immigration via reconciliation,” a person familiar with the meeting confirmed to The Hill.

Reconciliation, an arcane budget process, allows tax and spending bills to pass by a simple majority instead of overcoming the 60-vote legislative filibuster. To pass anything under the fast-track process, Democrats need to be able to unite their entire 50-member caucus in the Senate.

They’ve previously used it earlier this year to pass coronavirus relief and are likely to pass most, if not all, of President Biden’s $4 trillion spending plan without GOP support, giving them a potential vehicle for immigration changes.

Any attempt to pass immigration reform through the budget process would need to be approved by the Senate parliamentarian, who provides guidance on what can and can’t be included. A ruling against including changes to immigration laws wouldn’t be the first priority nixed by the parliamentarian; Senate Democrats stripped a $15 per hour minimum wage proposal out of their coronavirus bill after the top official warned it didn’t comply with rules.

But Democrats discussing if they can use reconciliation believe their argument is strengthened by Congress passing legislation under the budget process in 2005 that included immigration changes. They also point to quotes from Republicans in 2005 supportive of using reconciliation to recapture employment-based visas.

“The Judiciary Committee decided to sweep all of the unused H-1B visas for the last few years and to use that as a means to satisfy the reconciliation instructions. … It will keep jobs here in America rather than export them to places like India and China,” Sen. John Cornyn (R-Texas) said at the time.

Schumer’s comments to the CHC, which took place in February and were reported by The New York Times on Tuesday, come as a bipartisan group of senators — led by Schumer’s No. 2, Sen. Dick Durbin (D-Ill.) — are negotiating behind the scenes to try to come up with an immigration deal that could defeat a 60-vote filibuster.

The source familiar with the Schumer-CHC meeting stressed that exploring if reconciliation can be used would be a potential backup plan for if those bipartisan talks falter.

Durbin, who also chairs the Senate Judiciary Committee, is leading a group that includes 10 Republicans — the number needed to defeat a filibuster — to try to reach a deal that would include agricultural workers and immigrants brought into the country illegally as children, often referred to as Dreamers.

In order to win over enough GOP support, he’s said that Democrats will have to include border-related provisions.

Durbin acknowledged during an interview last month that trying to pass immigration reform through reconciliation had been discussed but that his goal was to get enough GOP support.

“It has been considered an alternative. I’m hoping that we can prove that we can do it under the regular order of businesses in a bipartisan fashion. That is my goal,” he told Punchbowl News.

Biden proposed a comprehensive immigration reform bill earlier this year that would provide a pathway to citizenship for 11 million undocumented immigrants. But that bill hasn’t yet passed the House, as Democratic leadership tries to shore up their vote, and is considered a non-starter in the Senate.

White House press secretary Jen Psaki also hit the brakes last month amid reports that Biden told members of the Congressional Hispanic Caucus that he supported using reconciliation to move immigration through the Senate.

“The conversation should not be about a reconciliation process,” she said. “It should be about moving forward in a bipartisan manner.”

But trying to use reconciliation to pass pieces of immigration reform has gained momentum in recent weeks.

Sen. Bob Menendez (D-N.J.), who is spearheading Biden’s comprehensive plan in the Senate, backed the effort after the CHC’s meeting with the president late last month.

“We’d like to come to a bipartisan agreement as we did with the Gang of Eight, several years ago. I was part of that gang. But in the absence of that, then we will seek every avenue to get as expansive a reform as we can, including reconciliation,” Menendez said.

House Speaker Nancy Pelosi (D-Calif.) said last month that Democrats “think we can make a case” for why it complies with reconciliation rules. And Sen. Patty Murray (Wash.), the No. 3 Senate Democrat, endorsed the idea last week, warning the party shouldn’t miss the window of controlling both the White House and Congress.

“It’s clear to me we can’t miss the opportunity to act in this critical moment. We need to look at every legislative path possible to get comprehensive immigration reform done — including through reconciliation,” she said.