Six years ago, when John McCain, the Arizona senator, last worked on an immigration bill, his partner was Ted Kennedy, of Massachusetts. Kennedy, especially in his final decade in the Senate, was known for working closely with ideological opponents to pass major pieces of legislation. On a recent morning, McCain sat in his dimly lit office, across the street from the Senate, and said how much he missed Kennedy. The Massachusetts senator died in August, 2009, at the age of seventy-seven, after a protracted battle with brain cancer. McCain, who is known for his irascible disposition and his sarcastic ribbing of colleagues, was in a wistful mood. When asked if there was anyone like Kennedy in the Senate today, he replied, “No. I can’t think of anybody.” He added, “We had a lovely relationship for a number of years there. He changed, too.” In his forty-six-year career, Kennedy somehow had moved past Chappaquiddick and his time as a hard-drinking bachelor to become one of the institution’s best legislators. “He grew from the playboy to what I always call the Last Lion.”
McCain is attempting his own political comeback, and Kennedy’s redemption was instructive. Beginning with his Presidential run against Barack Obama, in 2008, McCain had aligned himself with a wing of the Republican Party he once fought, and retreated from issues he once championed, including immigration reform. “Let me show you something,” McCain said. He got up and removed a framed cover of National Review from a wall of political memorabilia. It was dated July, 2007, the height of the previous immigration debate. It showed him leaning in close to Kennedy, apparently about to share a confidence. Opponents of the bill had decried it as “amnesty for illegals,” and the magazine accused the two men of hiding the true nature of the legislation. “LET’S SAY IT’S NOT AN AMNESTY,” the headline said. In the bottom corner of the cover, Kennedy had scrawled, “Let’s at least deny amnesty to National Review! Best, Ted.” McCain laughed as he read it.
“I’ll never forget the last time I saw him,” he said. In March, 2009, Kennedy had returned to the Senate for an important vote. Afterward, as a few of his aides escorted him to his car, he spotted McCain. “He called me. ‘Oh, Jawn! Oh, Jawn!’ ” McCain said, imitating Kennedy. “I came over and he gave me a hug.”
McCain also was summoning the kind of politician he once was. In 2000, when he ran against George W. Bush for the Presidential nomination, he argued against tax cuts for the rich and for campaign-finance reform, two deeply unpopular issues among conservatives. After he lost, he took the campaign-finance fight to the Senate and alienated his Republican colleagues there. But in his 2008 Presidential campaign he impulsively chose Sarah Palin as his running mate, a decision that helped give rise to the Party’s rabidly anti-Obama, Tea Party wing. McCain seemed to be increasingly comfortable there. He aligned himself with Senate Republicans who opposed every facet of Obama’s agenda, including ideas that grew directly out of Republican policies—such as the Administration’s health-care-reform bill and climate-change legislation.
But McCain is seventy-six, and some of his colleagues believe that he may not run again after his term expires, in 2016. This year, he has done his best to embody the idea of bipartisanship. He has been talking privately with Obama about a new “grand bargain” on the budget, and he recently agreed to help the President move toward closing the U.S. detention center at Guantánamo Bay. He has been publicly criticizing Tea Party senators such as Ted Cruz and Rand Paul, who he believes have been disrespectful to the Senate’s traditions. And he has become the champion of legislative progress at a time when there is reason to doubt that it is possible.
The 2007 Comprehensive Immigration Reform Act failed partly because it lacked a broad coalition. On the right, many Republicans were scared off by anti-immigration populists. On the left, despite overwhelming support from Democratic-leaning Hispanic groups, the labor movement lobbied against the bill, convinced that it would depress wages for its members. This year, McCain is the Republican leader of the Gang of Eight, a bipartisan group of senators who wrote the immigration bill that is being debated on the floor of the Senate this month. He and many other Republicans believe that the Party’s rigidly restrictive position on illegal immigration contributed to Mitt Romney’s dismal showing among Latinos in 2012. If the bill makes its way through Congress—by no means a certainty—and is signed into law by Obama, it would mark the rare occasion when Washington’s partisans managed, on their own initiative, to set aside their differences and solve a major national problem.
McCain said that he was disappointed that during Obama’s first term the White House didn’t ask him to work with the Administration on immigration reform. In June of 2009, the new President convened a meeting at the White House that raised hopes for passing comprehensive immigration reform in his first term. McCain was there. “We had a big ‘Rah rah, let’s do immigration reform!’ meeting,” he recalled. “Then—nothing. Zero. Zilch. Nada. There was nothing. I was never called again.” McCain accepted some of the fault. His disdain for Obama after the election was no secret. “I was one of those in the fight against Obamacare. There were some very bitter feelings and very bitter fights that were going on here. My hands aren’t totally clean in this, either.”
The 2012 election changed the politics of immigration reform. Republicans looked at the polling results: “a steady decline from Bush to me to Mitt,” McCain said. “Everybody agrees that probably the biggest mistake Mitt Romney made, outside of the forty-seven-per-cent issue”—a reference to Romney’s remark that forty-seven per cent of Obama voters were “dependent upon government”—“was when he said, quote, ‘self-deport.’ ” It was a phrase that Romney used to explain his immigration policy during a debate in the 2012 Republican primaries. “I didn’t know whether to laugh or cry when I heard that, because you can’t have eleven million people self-deport. That just wasn’t in touch with reality.” The disastrous election result focussed the Party’s attention. “There’s nothing to be learned from the second kick of a mule. Well, this was the third kick of a mule.”
McCain implied that he’s not just interested in helping his party but in some way is trying to save the Senate. If so, he and the Gang have found a counterintuitive method of doing it. The group has its origins in an unlikely episode of Republican and Democratic coöperation: the successful effort, after the 2012 election, that preserved the filibuster, the parliamentary maneuver that has made a sixty-vote majority necessary to accomplish almost anything in the upper chamber, and that has contributed to the inaction in Washington. McCain’s party, which has not held a Senate majority since Obama was elected, has used the filibuster with unprecedented frequency to thwart the President’s appointments and legislative agenda. Many critics of congressional stalemate, both inside and outside the institution, believe that the filibuster is undemocratic; last December, a group of recently arrived Democratic senators pushed to make most business in the Senate move along with a simple majority. McCain and other older members recoiled at the notion of a rule change, and a bipartisan group of seven senior senators met secretly to scuttle the idea, which was being put forward reluctantly by Harry Reid, the Majority Leader.
“These young, newer guys on the Democratic side were pressuring the hell out of Harry,” McCain said. He met with six senior senators every morning for several weeks to devise a strategy to stop filibuster reform. Democrats in the group, most of whom remember life as the minority party, were uncomfortable with changing the rules. McCain’s group helped Reid get a change passed that effectively maintained the status quo: “We came up with a way to forestall the fifty-one-vote movement, and that was a very successful effort.” Outside Washington, the Senate seems as partisan and dysfunctional as the House, but McCain and most of his colleagues cherish the unique rules that they believe still distinguish it from the lower chamber. “Even though it wasn’t publicized, it was really vital to how we do business around here,” he said of the group’s success in protecting the filibuster. “We were going to turn into the House of Representatives!” McCain was arguing, in effect, that if the Senate was going to continue to demand the need for a super-majority, it also had to show that it could pass significant legislation. And, like it or not, that meant working with Obama on one of the defining issues of his Presidency.
McCain’s Democratic partner in pushing immigration reform this year is Senator Charles Schumer, of New York. Although they generally agree on immigration, it was not an obvious pairing. Schumer, an aggressive pol from Brooklyn who won his first political campaign thirty-eight years ago, told me recently, in his office in Manhattan, “I didn’t get along with McCain. We didn’t know each other very well. We’ve had some fights on the floor. He once made a pejorative comment about Long Island and I blasted it and he got mad at that.”
In November, 2011, McCain was discussing a defense bill on the floor of the Senate, and he mentioned the four German saboteurs who landed in Amagansett in 1942 and were tried in a military court, an important episode in the debate over the legal status of detainees classified as enemy combatants. “Last I checked, Long Island was part—albeit sometimes regrettably—part of the United States of America,” McCain declared. Schumer tweeted an indignant retort: “@SenJohnMcCain—All of America saw how heroic Long Islanders were on 9/11. #LongIsland deserves an apology.” McCain went back to the floor. “I’m sorry there’s at least one of my colleagues that can’t take a joke,” he said, “and so I apologize if I offended him and hope that someday he will have a sense of humor.” Schumer did not consider the remark a true apology: “NYers can take a joke. But if @SenJohnMcCain wants to mock parts of America, stick to Arizona.”
Republicans think of Schumer as a liberal ideologue, and are quick to note that he was in charge of the Democratic Senatorial Campaign Committee in 2006, when Democrats gained six seats, and again in 2008, when they won eight more. Schumer, though, sees himself principally as a dealmaker, and he is often critical of the left. “The outside of me is partisan,” Schumer said. “I’m the guy who took back the Senate. That was my job.”
Lindsey Graham, of South Carolina, a lean and mischievous lawmaker with a high-pitched drawl, is McCain’s closest colleague in the Senate, and he often plays the role of peacemaker between McCain and the senators McCain has offended. Graham worked with Schumer on immigration in 2010, though little came of the effort. A few weeks after the 2012 election, Graham told Schumer, “We want to get the old band back together.” He told him he had to include McCain, even though, as he put it, “Chuck, he hates your guts.” He asked McCain to give it a try. “I’ll buy you dinner if I’m wrong,” he told him.
The relationship thawed as McCain and Schumer found themselves working together as part of the group that kept Reid from changing the filibuster rules. “McCain and I sat next to each other every morning at eight o’clock and went over things,” Schumer said. The meetings took place over “bad D.C. danish.” McCain, Schumer said, “came over to me at the end. He said, ‘You know? You’re a much different person than I thought you were.’ ” McCain agreed that the meetings built trust between him and Schumer. “The reason why I enjoyed working with Ted Kennedy is because Ted was always good to his word,” he said. “And so is Chuck.”
In December, McCain and Schumer started building the group to work on immigration, recruiting other senators while navigating the complicated politics of their respective caucuses. For the Democratic half of the Gang, Schumer picked Bob Menendez, of New Jersey, who is the son of Cuban immigrants, and the only Hispanic among the Senate’s Democrats; Dick Durbin, of Illinois, a co-author of the DREAM Act, a bill that would offer a path to permanent residency to undocumented immigrants, often dubbed DREAMers, who were brought to the U.S. as children and fulfilled some obligation, such as serving in the military or attending college; and Michael Bennet, of Colorado, a politically moderate state that has become increasingly Democratic partly because of its growing Hispanic population.
“I knew we needed Menendez,” Schumer said, “because he was the Hispanic. Dick Durbin deserved to be a part of it because of his passionate and long-term leadership with the DREAM Act, and he was also the liberal.” Durbin and Schumer live together—a somewhat common practice among politicians who are in Washington only a few days a week—in a sparsely furnished two-bedroom house near the Capitol that is owned by a third roommate, Representative George Miller, of California. (It’s known on the Hill as Animal House, though accounts of life inside suggest that the atmosphere is more akin to that of a retirement home.) They are also competitors for the Senate leadership. Durbin and Schumer are, respectively, the second- and third-ranking Democrats in the Senate, and each would like Reid’s job when he steps down. Though Schumer is below Durbin in rank, he was rewarded with more power and responsibility, seemingly at Durbin’s expense, after winning the seats for Democrats in 2006 and 2008. Schumer said, “We’ve stayed friends, but obviously there were tensions, which I think this”—the Gang of Eight negotiations—“has helped make subside, because we’ve worked so well together as a team.”
Durbin conceals his ambition more artfully than Schumer does. He has a reputation among his colleagues for crafting smooth sound bites, and he described their relationship diplomatically: “We do a lot more things together than separately. I think we’ve found a good working relationship. We’re two different kinds of people. A Brooklyn-born senator and a Midwestern-born senator just kind of come with different chemistry.”
As word got around that the group was forming, Democrats began appealing to Schumer for membership. “Menendez and Durbin were musts,” he told me, “and Bennet had been asking for months and months and months” to be part of any immigration-reform effort.
The Republican group was trickier to assemble. Mitch McConnell, the Senate Minority Leader, instructed McCain to include John Cornyn, of Texas, and Chuck Grassley, of Iowa, two conservatives who are skeptical of comprehensive reform. McCain thought the directive suggested that McConnell was trying to stifle the initiative. McCain ignored him and excluded Grassley and Cornyn from the group.
McCain, Graham, Schumer, and the other Democrats had a simple rule for admission to the Gang. Everyone had to agree that the members favored a comprehensive approach to immigration—all the major issues had to be settled in one bill—and they had to support a pathway to citizenship for undocumented immigrants. Schumer took it upon himself to find a Tea Party conservative. “I thought there was a chance to get some hard-right person who would be pro-immigration reform,” he said. In early meetings, Mike Lee, of Utah, a conservative who at a nominating convention in 2010 had beaten the eighteen-year-veteran senator Bob Bennett, played that role. Lee was the kind of young purist whom McCain disliked intensely. After a few meetings, it became clear that Lee would not agree to a pathway, and he did not attend further discussions.
“We were not going to settle,” said Schumer, who grew up among second- and third-generation Irish, Italian, and Jewish immigrants. “The image of the European societies haunted me. They have guest workers who come there and they’re allowed to work and travel, but they never feel part of society and it breeds an inward alienation that is terrible for those societies. The beauty of America is we have the lady with the torch, who I look out at from my window in my apartment in Brooklyn.”
The House and the Senate gyms are among the few places in Washington where Republicans and Democrats still socialize, and stories abound of historic bipartisan alliances being forged after a conversation on neighboring elliptical machines. Jeff Flake, a libertarian Republican from Arizona, was elected to the Senate in November, and previously served twelve years in the House. He got to know Schumer and Durbin, also former House members, at the House gym, which is bigger than the Senate gym and often attracts former representatives even after they’ve moved on to the upper chamber. Schumer knew that Flake had worked on immigration in the House. McCain was reluctant to share the spotlight with another Arizonan, but he relented, and Flake joined the group. “I didn’t expect to be in a gang,” said the mild-mannered Flake, whose blue eyes and stiff blond hair give him the look of Hollywood’s idea of a senator. “I thought I left gangs behind after the mean streets of Snowflake, Arizona, where I grew up.”
There was one senator the Gang members all wanted: forty-two-year-old Marco Rubio, of Florida, a favorite of the Tea Party, who was elected in 2010 and was already positioning himself to run for President in 2016. A Democratic aide involved in the negotiations said that the strategy was “to set this up so we can create room for Rubio to come to the table.” Nobody really had a relationship with him, but Durbin, who rises at five each morning to work out, had a way to get to him.
During an early-morning workout in the Senate gym, Durbin started discussing the Gang with Rubio. Everyone agreed that Rubio, who is the son of Cuban immigrants, would bring extra wattage to the group, but there was some skepticism about his intentions. Durbin said, “They questioned whether or not, with his credentials, he would be part of an effort that would lead to a path to citizenship. They knew he was obviously strong on border security.” McCain was especially resistant. He would now have to compete for leadership on the Republican side with the young upstart. But Durbin, who had discussed immigration policy with Rubio when Rubio was writing his own DREAM Act, shuttled between conversations with the Gang in Senate offices and conversations with Rubio in the gym.
In late December, before giving an interview to the Wall Street Journal outlining some principles for immigration reform, Rubio shared his ideas with the Schumer-McCain group. “Our principle is that we’re going to tie a pathway to citizenship to border security and enforcement,” he told the senators, according to a Rubio aide. “If you think that the Gang can put something together that’s consistent with these principles, then I’ll work with you. Otherwise, I’m not going to waste your time.” Schumer was delighted to have a Tea Party conservative who could sell an immigration bill to the right. “We knew it was a big deal,” he said.
The Democrats initially did not want to tie the pathway to border security. “They viewed them as independent things,” the Rubio aide said. “But they, right off the bat, conceded that. From his”—Rubio’s—“point of view, the concession that we gave was we would create a pathway to citizenship.”
On January 25th, Obama met at the White House with Senator Menendez and other members of the Congressional Hispanic Caucus. Such meetings had not always gone well in the past. Immigration reform, the policy that Menendez and many other Hispanic Democrats cared most about, always seemed to be pushed aside to make way for some other priority. The caucus had waited four years as Obama pursued major legislation to address the economic crisis, financial regulation, health care, global warming, and other issues.
During Obama’s 2012 campaign, he repeatedly said that immigration reform would be one of his first legislative priorities. In his most pointed comments on the subject, he told the Des Moines Register, last October, “I will just be very blunt. Should I win a second term, a big reason I will win a second term is because the Republican nominee and the Republican Party have so alienated the fastest-growing demographic group in the country, the Latino community. And this is a relatively new phenomenon. George Bush and Karl Rove were smart enough to understand the changing nature of America. And so I am fairly confident that they’re going to have a deep interest in getting that done. And I want to get it done because it’s the right thing to do and I’ve cared about this ever since I ran back in 2008.”
Democrats knew that they had to take on the issue in Obama’s second term. As one senator told me, the Party had run out of excuses. “The idea that we could then go back now and say, ‘We tried, but it was the other guys, they’re obstacles, vote for us again’—that hall pass is gone.” Schumer made the same point: “The mirror image of the Republican side saying they lost the Hispanic vote has been the Democratic group’s understanding it’s about time we made a law instead of a perfect bill that will never become law.”
In Obama’s second Inaugural Address, on January 21st, he said, “Our journey is not complete until we find a better way to welcome the striving, hopeful immigrants who still see America as a land of opportunity; until bright young students and engineers are enlisted in our workforce rather than expelled from our country.” And the President was about to take another important step. On January 29th, he was to fly to Las Vegas; Nevada had become solidly Democratic because of its growing Hispanic population, and he chose the city as the place to announce the details of his own immigration plan. Obama had let Congress write the health-care legislation in 2009, and the process dragged on for months. This time, his policy staff, led by Cecilia Muñoz, a liberal champion of the issue for many years, had written its own detailed bill.
Obama started the January 25th meeting with Menendez and the other Hispanic caucus members with what he thought would be welcome news. “ ‘I want to make immigration reform one of the top-tier agenda items this year,’ ” Obama said, according to Menendez. “He talked about how he wants to drive this.”
Then Menendez spoke up, asking the President not to present his full plan in Las Vegas—and, moreover, to say as little as possible about the issue. “We appreciate your leadership and we’re going to need your leadership at certain points,” he told Obama. “But right now, if you put out your bill, they”—Republicans—“will feel like they’re being cornered.” Obama was taken aback. “He basically said, ‘After you guys pushed me so hard in not so subtle tones, being critical at times about lacking leadership, now you’re asking me to hold off?’ And so we took the browbeating for a little while and then I went back and said, ‘I understand why you’re upset and how you might feel this way.’ ” Menendez explained that the Gang of Eight had made significant progress during the previous few weeks formulating a set of principles for an immigration bill. The senators had planned to announce the framework on Thursday, two days after Obama’s scheduled speech in Las Vegas. “I think the Republicans have come to understand, if they want to be a national party, that they are going to have to deal with this issue,” Menendez said he told Obama. “It’s really got to be a negotiating process.”
Obama “was not happy, to put it mildly,” Menendez said. “But he said that he would think about it.” According to an aide to Menendez, when the Gang learned that he had received no guarantee that the President would alter his plans for Las Vegas, “Our folks freaked out.” The Republicans were even more anxious. They believed that if Obama announced his ideas first it would look as if they were doing the White House’s bidding. The Democrats worried that Republicans who didn’t want to be seen as supporting “the Obama bill” would pull the Gang’s proposed bill to the right. Durbin told me, “The Republican side of the table wanted to get our principles out first, so it didn’t look like we were reacting.” They found themselves in a race with the White House. Pressed by Rubio and McCain, the Gang decided to preëmpt Obama’s announcement on Tuesday by holding its own press conference, on Monday.
Durbin and Schumer worried that preëmption wouldn’t be enough, and on Sunday they held a conference call with Obama to explain the situation. Durbin said, “We were begging him not to: ‘That puts us in a very difficult position in negotiating with Republicans and keeping the Democrats.’ ” He added, “If this became ‘Obama’s immigration-reform bill,’ that would’ve been fatal. He had to be a moving force but a low-profile force.” The President remained noncommittal, and they went ahead with the press conference on Monday. In the end, Obama didn’t release his full plan in Las Vegas, instead putting forward a set of “key principles.”
Once Obama became convinced that the Gang was making progress, he started to accept his less public role in the negotiations. But, in February, details of the White House bill were leaked to USA Today. Members of the Gang wondered if the leak signalled that the White House was unhappy with their pace, and that Obama wanted to take over the process. The leaked bill was far more liberal than what Republicans were contemplating. Rubio immediately issued a statement declaring the President’s proposal “dead on arrival.” Schumer urged the White House to talk to the Republicans in the Gang.
Flake happened to be in Cuba at the time, as part of a congressional delegation. He has been pushing for years to end the travel ban on the country, and he was meeting with Raúl Castro when he got a message that the President was calling. Flake told me that it was “probably not the best thing to be calling into Cuba—not exactly a secure line,” so they spoke a few days later. Obama told Flake that he understood that he had to approach the negotiations with a light touch. He agreed that the leak was unfortunate, and insisted that the White House had nothing to do with it. (Democrats say that the document was widely circulated and was likely leaked by someone in one of the agencies involved in the drafting process.)
“He seemed sincere that he was not looking to bully us or push hard or say you have to do this or that,” Flake said. “Maybe I’m just naïve, but I got the sense that he really did not intend for that to come out.” Obama told him that “he wants to see legislation passed, and he wanted to play the role that would best bring that about.” The President made similar calls to McCain, Rubio, and Graham. “To the President’s credit, he called me and McCain and he said, ‘I want a bill. Tell me what I need to do,’ ” Graham said. Obama assured them that he would let the Gang write its own legislation.
However, a senior White House official insisted that Obama’s role in overseeing details of the bill has been more significant than is generally known. “No decisions are being made without talking to us about it,” the official said of the Gang of Eight negotiations with the White House. “This does not fly if we’re not O.K. with it, because everyone knows this is going to pass with some Republicans but with a majority of Democrats, and it’s going to require even more Democrats in the House.” The official added that Schumer and Durbin regularly ask the White House to sign off on policy options that they’re considering.
But the official also said that Obama has learned a lesson about Presidential leadership in an era of deep polarization: speaking out in favor of his policies sometimes makes them less likely to pass. “We’re not worried about short-term political credit. We’ll get plenty of it if it gets signed,” the official said, adding that the White House was willing to let Republicans like Graham and Rubio, who are regularly attacked by conservatives, have the political space they needed. He also said, “We’re the hammer on the back end. If the Republicans try to scuttle it, we’re the ones who can communicate to the Latino community who scuttled it.”
Schumer studied Kennedy’s 2007 negotiations, and he thought he understood one reason that the bill failed. “I love Ted Kennedy,” Schumer said. “He was my mentor and idol, but people got the feeling he wasn’t tough on future waves of illegal immigration.” Schumer said that Democrats are too cautious in their rhetoric. “When Ted Kennedy would say ‘undocumented workers,’ basic America—not the liberal side, but Middle America and conservatives—would say, ‘He really doesn’t think they’re illegal.’ I made a decision: I would have to keep saying ‘illegal immigrants.’ ” Schumer pounded the table for emphasis. “Hispanic groups went to me and complained: ‘Please don’t do that!’ I said, ‘Look, first, what they did was illegal.’ I’m not saying they’re bad people. I would do the same thing if my mother and children were starving in Oaxaca province.”
As in 2007, the legislation this year addressed three major issues. First, Schumer and his colleagues had to prove that the border was secure and that immigration laws were being enforced. There also had to be a tough but fair way for the eleven million undocumented immigrants living in the U.S. to attain citizenship. Finally, the federal laws for foreign workers had to be rewritten and updated to take into account the huge labor shortages that attracted so many undocumented workers in the first place.
The security concerns were among the bill’s toughest challenges. Obama did not want to include a so-called “trigger,” which would make the pathway to citizenship for undocumented immigrants currently living in America dependent on certifying that the border is secure. But the Republican members of the Gang demanded it. The trigger and the security measures included in the bill are still not enough for many conservatives. “There are some people that, if you and I built the Berlin Wall and had machine guns every fifty yards, then that border would not be secure,” McCain said.
The Gang finally agreed that, if the government could not successfully apprehend ninety per cent of people who crossed illegally along the border’s most porous sections, a special border commission would be created. As many conservatives now point out, the policy is not a real trigger, or at least is not one that would prevent the pathway to citizenship from being implemented, as many conservatives demand. “It’s just a goal,” a Schumer aide admitted. “Because even if we don’t achieve it, and the border commission comes into existence, it doesn’t delay the path to citizenship.”
Still, the Gang resolved the issue and moved on to an even more volatile piece of business: a temporary-worker program. Many U.S. companies rely on foreign workers, and, without a legal measure controlling the influx, illegal immigration will continue. That is what happened after 1986, when President Reagan signed a law granting amnesty to some undocumented immigrants. Flake told me, “Because it didn’t include a robust temporary-worker plan to account for labor needs, we were basically forced to turn a blind eye and watch people cross the border.” The new worker program is the keystone of the Gang’s strategy.
The A.F.L.-C.I.O. has long argued that a legal-guest-worker program would take jobs away from Americans by offering lower wages. Union opposition to the program helped defeat immigration legislation in 2007. “Labor definitely torpedoed the bill,” Menendez said. Business has responded that American citizens mostly don’t want the jobs that foreign workers take: building houses, mowing lawns, cleaning hotel rooms. In December, Schumer and Graham met privately with the leaders of the A.F.L.-C.I.O. and the Chamber of Commerce and told them to write that provision themselves. “We basically said to them, if you guys reach an agreement amongst yourselves, we won’t question it, but the Gang will just slide your version of it into the bill,” the Schumer aide explained. The Gang would honor it, because the Democrats wouldn’t second-guess something that the unions accepted, and the Republicans wouldn’t second-guess something that the Chamber of Commerce was comfortable with.
This kind of horse-trading with big business is not unusual. The key to the success of Obama’s health-care-reform bill was lucrative deals for the insurance and the pharmaceutical industries. The climate-change bill passed the House of Representatives after gaining the support of a wide array of energy interests, though it failed in the Senate. In 2010, when Representative Barney Frank was negotiating the financial-regulation bill, he promised to include an amendment worth $1.5 billion to the Independent Community Bankers of America, a trade group of thousands of small banks, in exchange for the group’s support.
Schumer believed that Republican senators would overcome the grass-roots and talk-radio fervor against immigration reform only if they were lobbied by crucial business constituents. The Schumer aide said that, for the G.O.P., three key groups were “the Chamber, which is the traditional business community; the tech community, which is a force unto itself and which the Republicans are trying to court in earnest these days, especially on the House side, as a fund-raising base; and agricultural interests and growers.” Business support and strong security measures might be enough to win over ten or fifteen Republican senators, helping them when they faced their donors and their voters. “They might be for it because the ag industry wants it and the tech industry wants it,” the aide said. “But being able to talk up how significant our border improvements are is what will give them the answer to justify a vote after the fact.”
On February 21st, Richard Trumka, the head of the A.F.L.-C.I.O., and Tom Donohue, the head of the Chamber of Commerce, returned empty-handed to Schumer and McCain. They had negotiated a statement of principles but couldn’t come up with a legislative plan. As Easter approached, Flake said, “The wheels almost came off.” The White House was acutely aware that in 2009 the slow pace of health-care negotiations had almost killed the bill. At one Oval Office meeting, with all four Democratic members of the Gang, Obama said, “It’s not an infinite window.” Menendez told me, “The essence was ‘I’m not going to let health care happen to me again.’ ”
Senator Patrick Leahy, of Vermont, the head of the Judiciary Committee, also was applying pressure. He had not been enthusiastic about the Gang’s assuming control of the immigration issue, which is the province of his committee. He regularly took shots at the group, sometimes alluding to Schumer’s well-known love of publicity. “Forget the press conferences and talking about how great you are and how wonderful you are, and just do the hard work,” Leahy told me. “The Gang of Eight, they’ve been having a lot of press conferences, and they deserve credit for the work they were doing, but they kept saying, ‘Well, we’re not quite ready yet.’ And I just said, ‘Well, we’re gonna have a couple more hearings and then I’m bringing the bill up, so you better be ready.’ ”
To secure the vital deal on the temporary-worker program, the Gang decided on what it called the “four-corners strategy.” It demanded that Trumka and Donohue participate in final negotiations on the issue. “We kept them at the table,” the Schumer aide said. “Instead of being a bilateral talk, it became a four-sided talk.”
The senators’ immigration-policy staffers also attended the Gang’s meetings, and, over time, two stood out: Leon Fresco, a Schumer aide, and Enrique Gonzalez, a Rubio aide. Both are Cuban-American lawyers from Miami who know the intricacies of immigration law. On one occasion, Fresco interrupted Schumer and corrected him on a technical point. According to McCain, Schumer, who is known for being colloquial with his staff, retorted, “Shut up, Leon!” McCain remarked that Schumer and Fresco seemed to have a relationship akin to the characters played by John Goodman and Steve Buscemi in the cult movie “The Big Lebowski.” (The domineering Goodman character repeatedly tells the timid Buscemi character, “Shut the fuck up, Donny!”) McCain, who is a stickler for observing the institution’s hierarchy, soon began greeting Fresco with a hearty “Shut up, Leon!” Menendez noted that McCain’s temper was more restrained than usual. “John’s been better than I’m used to,” Menendez said. “There have been fewer volcanic moments.”
Fresco and Gonzalez helped to unlock the deal with labor and the Chamber of Commerce. The two biggest sticking points were wages for foreign workers (the unions wanted them to be higher) and the objections of the Building and Construction Trades union, which argues that plenty of Americans are looking for this kind of work. Rubio sided with the Chamber against the construction workers. “There are American workers who, for lack of a better term, can’t cut it,” a Rubio aide told me. “There shouldn’t be a presumption that every American worker is a star performer. There are people who just can’t get it, can’t do it, don’t want to do it. And so you can’t obviously discuss that publicly.” In the end, the wage issue was settled to the A.F.L.-C.I.O.’s satisfaction, and the Building and Construction Trades union won a cap on the number of visas for foreign construction workers.
On March 29th, Good Friday, Fresco called Schumer and said that the two sides had reached an agreement. It was 10 P.M., but Schumer wanted to call Trumka and Donohue to make sure that they wouldn’t back out. He checked with a few of his Catholic staffers to see if it was all right to call on Good Friday. They told him it was. Schumer called Trumka and Donohue separately, then conferenced them into the same call. They agreed to support the temporary-worker provision. “That was the first moment that I said, we can actually get this done,” Schumer recalled. In the morning, he called Denis McDonough, Obama’s chief of staff, who was starting to have doubts about the Gang, and gave him the news. “You guys are kicking ass,” McDonough said.
An equally delicate set of negotiations, by Senators Bennet, Rubio, Dianne Feinstein, of California, and Orrin Hatch, of Utah, brought the agriculture industry on board. “In Arizona, we want workers to pick lettuce three months a year,” McCain said. “In the Southeast, where they process chickens, they want ’em twelve months a year. In the Northeast, because of dairy, for some reason—I guess it’s .001 per cent of the economy—but, still, the dairy farmers need a certain kind of program as well. So you’ve got a disparate agricultural-jobs issue.”
Schumer watched the negotiations from afar and weighed in as needed. “I told both Dianne and Michael Bennet, ‘You cannot have Southeast agriculture unhappy, because some of our key votes in the Senate are gonna be Tennessee, Georgia, North Carolina.’ And they went back and came up with a deal.”
As for high tech, several staffers involved with the bill started to notice that every time the Gang satisfied the industry its lobbyists returned with new demands. “They keep coming back for more,” Graham told me. But he didn’t mean it in a bad way. “This is America. I don’t know how you say that in Latin. That should be on some building somewhere: You have the right to come back for more when you don’t get what you want. The country where you can ask for almost anything!”
The Gang knew that, in addition to winning the support of labor unions, the Chamber of Commerce, agribusiness, and the tech industry, it had to neutralize the Republican Party’s base. In 2007, McCain reminded me, he and Graham had been attacked by a radio talk-show host as “Amnesty John and Lindsey Gomez.” Fox News’s coverage had been overwhelmingly negative, and few Republicans attempted to defend the bill. This time, Marco Rubio became the Gang’s official ambassador to the right, spending countless hours discussing the legislation with conservative news outlets. “Marco has been really the linchpin on the Republican side,” Flake said.
The Democrats in the Gang are so grateful to Rubio for this effort that their praise of him borders on the obsequious. “He has been invaluable,” Durbin told me. “He’s willing to go on the most conservative talk shows, television and radio, Rush Limbaugh and the rest. They respect him, they like him, they think he may have a future in the Party.” And, he added, “He brings up the names of some of these conservative people I’ve never heard of who everybody in their caucus knows.” One of them was Mark Levin, a conservative radio host based in New York, who reaches more than seven million listeners a week and recently compared the Gang of Eight to a “politburo.” “I couldn’t pick him out of a lineup,” Durbin said. “Who is Mark Levin?”
Menendez told me that Rubio’s role was to “work over the conservative universe, particularly the conservative opinion-maker universe,” in order to “neutralize them” and, in some cases, “proselytize them.” Schumer said, “He’s the real deal. He is smart, he is substantive. He knows when to compromise and when to hold. And he’s personable.” An aide to Menendez said that, if the Gang were a group of high-school students, Rubio would be the cool jock and the captain of the football team, with whom everyone wanted to hang out. Schumer often found himself mediating disputes between Rubio and McCain, who felt that Rubio’s public statements sometimes positioned him positively with conservatives at the expense of the Gang. McCain would call Schumer and fume, “Look what Rubio’s doing!”
McCain was the only one of the Gang to offer qualified support. “I think the work he’s done with conservative radio has been really good. From time to time, his inexperience here shows up. But it’s not a huge deal. Once in a while, you read, ‘Rubio’s gonna do this, or do that!’ Wait a minute, Marco! Let’s all be together.” As for the substance, “Policy-wise, he’s been good, O.K.? But I wouldn’t say any different than the rest of us.” Rubio’s real benefit to the group, he said, has been in clarifying the need for immigration reform. “Look, I’m very proud of myself, O.K.? But he articulates it better than anybody I know.”
Fox News has notably changed its tone since the election. A Democratic policy staffer who worked on the issue in 2007 and has helped write the current bill said, “NumbersUSA and FAIR”—two groups that want to dramatically limit immigration—“managed to convince Fox News back then to be their twenty-four-hour news channel of the anti-immigrant point of view. Fox has now totally bought in to the idea that we just need to figure something out.” Rush Limbaugh, who fiercely opposes the bill, has come to sound resigned. “I don’t know if there’s any stopping this,” he said on January 28th, the day the Gang held the press conference announcing its framework for the legislation. “It’s up to me and Fox News, and I don’t think Fox News is that invested in this.”
McCain told me, “Rupert Murdoch is a strong supporter of immigration reform, and Roger Ailes is, too.” Murdoch is the chairman and C.E.O. of News Corp., which owns Fox, and Ailes is Fox News’s president. McCain said that he, Graham, Rubio, and others also have talked privately to top hosts at Fox, including Bill O’Reilly, Sean Hannity, and Neil Cavuto, who are now relatively sympathetic to the Gang’s proposed bill. Hannity voiced support for a pathway to citizenship for undocumented immigrants, which he previously dismissed as “amnesty,” on the day after the 2012 election. “God bless Fox,” Graham said. “Last time, it was ‘amnesty’ every fifteen seconds.” He said that the change was important for his reëlection, because “eighty per cent of people in my primary get their news from Fox.” He added that the network has “allowed critics to come forward, but it’s been so much better.”
In 2007, the Heritage Foundation released a study arguing that granting citizenship to currently undocumented immigrants would be an enormous financial burden on the American taxpayer. It estimated that each low-skilled-immigrant household would receive twenty thousand dollars in net government benefits, which, it said in a radio ad, is “like buying them a brand-new Mustang convertible each year.” When Heritage released an updated version of the report, this May, the Gang of Eight was prepared with a full media campaign, but the counterattack was unnecessary. The Washington Post reported that a co-author of the Heritage paper had written a Harvard dissertation on the subject of I.Q. and immigration. He had argued that the United States should base its immigration policy on immigrant I.Q., and that such a policy would advise against letting more Hispanics into America.
McCain could hardly contain himself as he recited the story of how the Heritage report backfired. “Ka-boom!” he yelled. “That was a gift from God.” Heritage’s longtime president, Edwin J. Feulner, recently retired and was replaced by Jim DeMint, a former Republican senator and a leader of the Tea Party movement. McCain argued that Heritage, one of the most important institutions in the history of American conservatism, had marginalized itself. He shook his head. “But, yeah, those low-I.Q. Hispanics, I’ll tell ya, that was really revealing to me, I had no idea!” McCain, who is of Irish heritage, added, “We’ve always known that about the Irish.”
The grass roots of the Republican Party have been far less influential in this year’s debate than the Party’s donor class and business interests, which are generally in favor of reform. The Wall Street Journal ’s editorial page favors a reform bill along the lines of what the Gang has written, and a coalition of dozens of conservative economists, several of whom have worked in top positions in recent Republican Administrations, has written a public letter in support of legislation. In a recent report diagnosing the Party’s 2012 failures, the Republican National Committee said, “We must embrace and champion comprehensive immigration reform.”
Of all the members of the Gang, Lindsey Graham may have the most to lose. In November, when he told McCain that he wanted to form a group to work on immigration reform, McCain was surprised.
“You’re up for election,” McCain told him.
“I’m a little pregnant on this,” Graham responded. “Everything that could be said about me and immigration has been said.”
Back in South Carolina, where President Obama and his policies are intensely unpopular, Graham compensates for his pro-immigration stance by crucifying Obama on most other issues. He speaks a great deal about a “coverup” by people at the White House over the terrorist attack in Benghazi, Libya, last September that killed the U.S. Ambassador and three other American officials. “I think they politically manipulated the evidence to tell a political story rather than the truth right before the election,” Graham told me. “But, having said that, let’s do immigration reform.”
Graham blames Obama for killing the 2007 immigration bill, because Senator Obama voted for a labor-backed amendment that helped derail the legislation. “He was awful,” Graham said. “I hated his guts. I thought he was so disingenuous.” But he quickly added, “This time around, he’s been very, very good.” He noted Obama’s low profile. “He gets it. He’s trying to pass a bill. I think it’s true leadership.”
McCain laughed when I asked about Graham’s embracing Obama on immigration and attacking him on everything else. “Bob Dole once said that Ted Kennedy was the only guy he ever knew in the Senate that would go to the floor of the Senate and excoriate you, and then come in the cloakroom and convince you that he wasn’t talking about you,” McCain said. “And that’s the way Lindsey is.”
Schumer said, “Lindsey is one of the most brilliant politicians I’ve met. . . . He’s very good at in some places being conciliatory and in some places being real hard-lined. With him, it’s not Dr. Jekyll and Mr. Hyde. It’s part of the same political personality.”
Graham explained his relationship with Obama by saying, “I’m not married, but I think marriages work this way. That’s the way life is. You kick their ass one day and you’ll work with them the next. If you can’t do two things at once, don’t get into politics.”
After the bill was negotiated and drafted, it was ready to go before the Judiciary Committee, a process known as “markup.” Graham’s ability to do two seemingly contradictory things at once was essential to getting it onto the Senate floor. The markup, in May, when the bill was reviewed and amended in public, was the last obstacle between the Gang of Eight’s private negotiations and the debate before the full Senate. A bill that had been created through private deals among eight senators, a small group of staffers, and lobbyists now had to survive an onslaught of some three hundred amendments brought before the eighteen senators on the Judiciary Committee, four of whom were part of the Gang: Graham, Flake, Durbin, and Schumer.
The Gang of Eight met privately and reviewed each amendment, concentrating on the ones that they agreed would damage the fragile consensus. In a Senate that in recent years has operated almost exclusively along partisan lines, the Gang’s markup strategy was notable. The Judiciary Committee includes conservative Republicans who strenuously opposed the bill: Ted Cruz, of Texas; Jeff Sessions, of Alabama; Chuck Grassley, of Iowa; and Mike Lee, of Utah. Flake and Graham had to vote against border-security measures that they supported. Durbin had to disown a visa-reform bill that he drafted with Grassley, a fact that Grassley repeatedly cited. “I was sticking with the team and voting against things that I had supported in the past,” Durbin told me.
Graham, who said that he could easily see an opponent turning one of his votes into a thirty-second attack ad next year, described the process in terms of preserving his honor. “In the private sector, when you reach an agreement, you defend the agreement,” he said. He and Flake had “to fend off amendments that would have torn the agreement apart—that would have made it impossible for the Democrats to stay on board. We had to vote against a lot of things that we would personally have supported.”
Given the current political climate, I told him that it didn’t sound like such an easy thing to do. “Well, what’s really not easy is to go into Afghanistan and Iraq and get your ass shot off for your country,” he said. “I put everything in perspective. It’s easier to take the hard vote than it is to break your word.” The unity of the Gang fractured at one point when Rubio, who often tried to find ways to set himself apart from the seven other senators, announced his support for an amendment requiring biometric tracking for visa holders which the Gang had agreed to oppose as a group. Rubio later took the issue to the floor of the Senate.
The Republican amendments that Graham and Flake had to fight were nothing compared with one being prepared by Leahy, the committee’s chairman. Vermont legalized marriage for same-sex couples in 2009, and Leahy had drafted an amendment that would extend to married same-sex couples the same right that heterosexual couples enjoy: the right to sponsor a spouse for immigration to the U.S. The logic of the amendment was sound. “In Vermont, we have same-sex marriage legally, and twelve states will have it by the summer,” Leahy told me. “I can’t look at one Vermont couple and say, ‘O.K., we can take care of you,’ but another couple, ‘We have to discriminate against you.’ ”
Graham made it clear that if a same-sex-marriage amendment were added to the immigration bill he would walk away from the deal. “If you want to have an argument about same-sex marriage, let’s do it, but if you want to pass immigration reform let’s focus on immigration reform,” he said. “I can take and absorb a lot. That was not fair. That wasn’t right to make me and others do that. What if the House had put pro-life stuff in the bill? Or if they said all illegal immigrants have to have sonograms when they have abortions? There’s no stopping this.”
Schumer and Durbin, who support gay marriage, spent weeks trying to figure out whether Leahy really would offer the amendment. Durbin had been lobbying legislators back in Illinois to pass marriage equality, while in Washington he was deciding whether to vote against Leahy’s amendment. “I’m thinking to myself, How will I ever explain this?” he said. “It’s as tough as it gets in this business. It really is. . . . I grew up witnessing and living through the civil-rights movement. This notion of civil rights is one of the reasons I’m here. . . . It was the ultimate dilemma. Are you going to vote this matter of principle if it means losing immigration reform?”
Durbin said that the Leahy amendment had been “a topic of every conversation for the last three weeks” between him and Schumer. They argued that Leahy could wait until the bill was debated before the full Senate, rather than derail it before it even got there. Nobody seemed to have any leverage with Leahy or know what he was really going to do. “He wouldn’t commit himself,” Durbin said. “He always held out the possibility he was going to call the amendment. We would gather information based on what he told others.” Leahy believed that his colleagues were leaking to the press that Obama was telling him not to offer it. But the President told Leahy, “It’s your judgment. I’m not going to try to tell you what to do.”
As everyone waited for Leahy’s decision, Schumer was attempting to persuade at least one more Republican to publicly support the bill. The tech industry was not satisfied with the Gang’s legislation. The concern is H-1B visas, which allow companies like Google and Facebook to bring highly skilled engineers from abroad to work for them temporarily in America. The industry wants the maximum number of H-1B visas with the fewest regulations. Durbin, who is close to organized labor, has argued for years in favor of the visas but with more stringent rules, including tougher provisions to insure that the companies try to find qualified Americans first. During the markup, Orrin Hatch, who has sometimes been sympathetic to immigration reform, stepped forward as high tech’s champion, offering a series of amendments at the industry’s behest.
Schumer, who knew that Kennedy and Hatch had been close allies, thought he saw an opportunity, but he was warned to tread carefully. “There’s a lot of people who were telling Schumer, ‘Watch out for Hatch,’ ” a Democratic senator said. “I love Orrin, but he can be a piece of work. We all used to tell this to Ted Kennedy: ‘Your best friend sells you out. He’s always with you when you don’t need him. He’s never with you when you need him.’ ” Despite Hatch’s habit of demanding concessions in bills and then failing to support the final legislation, Schumer cut a deal: Hatch would vote for the bill in committee if his amendments were accepted. Even if Hatch later abandons the bill on the floor, as some predict he will, Schumer believed that the H-1B amendments would get the tech industry excited about the deal.
Durbin didn’t like the idea. “When they told me that we had to sit down and renegotiate a major section of the bill to get [Hatch’s] vote, I was skeptical,” he said. Graham, who is not as sympathetic to the tech industry’s demands as other Republicans, thought the deal was worthwhile. “Hatch made the bill much better for the high-tech community and that’s why they came on board,” he told me. Rubio supported the Hatch amendment, and the tech community showed its gratitude. FWD.us, the political group backed by Facebook’s Mark Zuckerberg, defended Rubio from conservative attacks by buying ads on talk radio. The spots didn’t mention H-1B visas, but they assured listeners that Rubio’s plan was tough. It would “deport any illegal immigrant guilty of a serious crime. For the rest, no amnesty, period.”
On the afternoon of May 21st, the final day of the bill’s markup, nobody in the Gang knew what Leahy would do with his amendment. According to several Democratic senators involved, none of the Democrats wanted the amendment in the bill, but nobody wanted to take the blame for excluding it. Schumer and the other Democrats hoped that Graham could be the fall guy. “They wanted me to talk,” Graham said. “They said, ‘You need to explain. Leahy needs to hear from you.’ ” Graham made a simple case. “You got me on immigration,” he told his colleagues on the committee as the amendment was debated. “You don’t have me on marriage.”
When Leahy still didn’t budge, Schumer and Durbin, and several Democrats on the Judiciary Committee, announced that they would have to vote against the amendment. After they were finished, Leahy announced that he wouldn’t put the amendment up for a vote, thus saving the bill. Schumer was furious. Leahy had dragged out the drama for weeks and forced him to publicly declare that he would vote against an issue dear to the gay-rights community. Other relationships within the Gang were also frayed. McCain and Graham were irritated with Rubio for grandstanding and declaring his support for the biometric amendment that Graham had to vote against.
Nevertheless, the bill cleared the committee by a vote of thirteen to five. Hatch made good on his promise and voted yes. A group of Spanish-speaking DREAMers watched from the sidelines of the committee room. As Leahy’s gavel came down, they stood up and cheered: “Sí se puede! Sí se puede! ”
Perhaps McCain was right that, under the right political circumstance, the Senate can still solve significant problems. The Gang members will try to guard the bill in coming weeks, as they did when it was before Leahy’s committee. And last week they picked up a new Republican ally: Kelly Ayotte, of New Hampshire. If the bill makes it through the floor debates more or less intact, Obama’s bitter rival from 2008 will have helped him finally fulfill his promise of bringing bipartisanship to Washington.
The White House is cautiously optimistic about the prospects for immigration reform, even in the House, where it faces the most arduous journey of all. Last week, as the Senate voted, eighty-four to fifteen, to start debate on the Gang’s bill, Democrats wondered how many Republicans they needed to attract. Liberals like Durbin think that Schumer has already pushed his Democratic colleagues as far to the right as they can go. Meanwhile, Leahy has introduced the same-sex-marriage amendment.
Schumer told me that he wanted a super-majority. “There’s some talk we don’t need seventy votes,” he said. “We need seventy.” There are fifty-four Democratic votes in the chamber, and Schumer argued that support for a comprehensive bill would collapse in the House unless more Senate Republicans supported the bill. “If you get sixty-one, you get only seven Republican votes, then the House will say we don’t need a path to citizenship. They’ll say, ‘We’ll do high tech, we’ll do ag, we’ll let the people work, but no path to citizenship.’ And the Hispanic community will say no and there will be no bill. You need momentum, particularly on the Republican side.”
The White House agrees. “The best way to get things through the House is to pass them through the Senate first with a bipartisan stamp of approval,” the senior Obama official said, noting that the House Speaker, John Boehner, has been unusually accommodating. “I think by the end of the year, we could have a bill,” Boehner told ABC News last week. The White House official went on, “It could prove that Washington isn’t one hundred per cent broken. If a Gang of Eight-style bill is signed into law by the President, it will probably be one of the top five legislative accomplishments in the last twenty years. It’s a huge piece of business. The lesson is that, if both parties see something in their political interest, they’re very good at getting it done.” ♦
