The Convoluted Politics of the Senate Border ‘Bill’

Sorting out what looks like the White House’s — and the media’s — con game

By Andrew R. Arthur on January 31, 2024

As I’ve explained at length of late, Senate negotiators have been working for nearly two months on a series of border reforms in exchange for $61 billion the White House is seeking for Ukraine war funding. The inconvenient fact that there is no bill language yet — and apparently no real agreement — hasn’t stopped either the White House or the president’s allies in the media from spinning the whole thing to the president’s political advantage. Since you — the voters — are the likely mark in what sure looks like a political confidence game, let me try to sort it out.

Reading the Tea Leaves — or the Entrails. People have long attempted to see the future by examining various auguries to determine what’s to come. One effort popular in Victorian England is what’s known as “tasseography” (or “tasseomancy”, if you prefer), defined as “the art of identifying symbols and interpreting messages found in the shapes and configurations of tea leaves”.

That’s different only in style from an ancient Roman practice in which a priest (known as a “haruspex”) “was tasked with carrying out divination by looking at the entrails of sacrificed animals, often a sheep’s liver”.

Both references are apt in the context of determining what — if anything — Senate negotiators will do because to make that determination, you must first sort through the waste products of the 24-hour news cycle to find usable nuggets that will point in the direction of what’s being discussed.

That's what I attempted to do last week, when I explained that none of the proposals in that Senate effort as reported would do anything to address the current disaster at the Southwest border.

Those proposals — at least at that time — involved some sort of 5,000 per day cap on illegal entries (1.825 million per annum) after which the president could (or would be forced to) turn everyone else away; “amnesty to a ‘documented Dreamer’ class” of children of nonimmigrants; retention of Biden’s flawed (and facially illegal) parole programs, which have already been used to usher in around 1.5 million unauthorized aliens; quicker work permits for “asylum seekers” (an undefined term); and funding to care for released migrants.

But then, on January 26, Bill Melugin from Fox News tweeted:

Notably absent is any “documented Dreamer” talk or any explanation of how a court system that already has a three-million case backlog and that is already operates under a statutory 180-day deadline to complete asylum cases is going to somehow adjudicate those claims “within 6 months rather than the years long process we have right now”.

Also on January 26, the White House issued a statement about those Senate negotiations, in which President Biden averred:

What’s been negotiated would — if passed into law — be the toughest and fairest set of reforms to secure the border we’ve ever had in our country.

It would give me, as President, a new emergency authority to shut down the border when it becomes overwhelmed. And if given that authority, I would use it the day I sign the bill into law.

The Players. One would expect a large-scale group effort when you’re talking about “the toughest and fairest set of reforms to secure the border” ever enacted, but this deal is being run by a skeleton crew consisting of just three senators — James Lankford (R-Okla.), Chris Murphy (D-Conn.), and Kyrsten Sinema (I-Ariz.).

That Sinema is an Independent who caucuses with the Democrats would seem to make this an unbalanced triad, and I will get back to that point below. Apparently, Lankford has the support of Senate Minority Leader Mitch McConnell (R-Ky.), and one would have to assume that Murphy’s laboring at the behest of Majority Leader Chuck Schumer (D-N.Y.).

Apparently, Homeland Security Secretary Alejandro Mayorkas, and DHS generally, have also been brought in to advise those talks, notwithstanding the fact that the House Homeland Security Committee is currently in the process of attempting to impeach Mayorkas.

Then, there is Donald Trump, currently the frontrunner for the GOP 2024 presidential nomination. The DC tipsheet Punchbowl News reported on January 24 that McConnell raised the specter of the former president during a private Senate Republican members-only meeting on the negotiations.

From my read of that article, aside from the leader’s reference at that confab to Trump as “the nominee”, there were exactly two direct quotes from McConnell related to the border: “Politics on this have changed”; and “We don’t want to do anything to undermine [Trump]”. That somehow led to the following conclusion in that piece:

The border-for-Ukraine construct always made sense in theory. But when lawmakers got down to details, the fault lines among Hill Republicans became glaringly obvious. These inter-Republican clashes once again laid bare how the GOP prefers to use the border crisis as a political talking point instead of solving the underlying problem. The White House and Hill Democrats will pound home that message every day for the rest of the election cycle. [Emphasis added.]

Punchbowl News details at length the contentious history between Trump and McConnell (which has gotten nasty at times), so I seriously question (if not outright doubt) whether McConnell said anything like “Let’s tank the bill even if we get everything we want so a man I really don’t like can get elected”.

That highlighted excerpt, however, has become conventional political wisdom as relates to all complaints by every Republican other than Lankford about these negotiations. In fact, it was a key point in a Wall Street Journal editorial headlined “A GOP Border Reckoning; We’ll soon know if the party really wants to solve the problem”, which stated:

giving up on a border security bill would be a self-inflicted GOP wound. President Biden would claim, with cause, that Republicans want border chaos as an election issue rather than solving the problem. Voter anger may over time move from Mr. Biden to the GOP, and the public will have a point. Cynical is the only word that fits Republicans panning a border deal whose details aren’t even known.

“A Border Deal Whose Details Aren’t Even Known”. The Journal’s editorial board has a decidedly conservative slant (though not necessarily on immigration), so it’s a little curious for them to latch onto what’s little more than innuendo to paint Republicans who disagree with what they’ve heard about the Senate proposals as “cynical”.

As even the paper itself admits, this is “a border deal whose details aren’t even known”, which itself is a curious statement. Rumors, leaks, and innuendo are coins of the realm on Capitol Hill, so the precious little that has been publicly disclosed about this “deal” should be a major red flag.

The popular opinion (read: “herd mentality”) is that the Lankford-Sinema-Murphy proposal is in the can and ready to go to the floor for a vote, with ABC News reporting on January 29, “Senate negotiators are racing to put the finishing touches” on it, a day after CBS News claimed that “Biden and senators on verge of striking immigration deal aimed at clamping down on illegal border crossings”. Maybe.

Note, however, that nearly four weeks earlier, on January 3 Reuters reported:

Independent U.S. Senator Kyrsten Sinema said on Wednesday that Senate negotiators were "closing in" on a bipartisan border security deal, which Congress could couple with new emergency aid for Ukraine and Israel.

"We're closing in" on a deal, Sinema told reporters following a two-hour negotiating session.

"We've got a lot of technical work left to do," Sinema said, adding that presenting the 100 senators with details of a package when they return from recess next week was "reasonable."

The Senate’s recess ended on January 8, but there’s still no “deal”. If I had to make a guess, this effort remains a handful of vague concepts with that “5,000 a day” illegal-entry limit at its core.

Lankford’s Colleagues Kept in the Dark. If, in fact, this proposal is “on the verge” of being struck and that the negotiators are simply putting the “finishing touches” on it, Lankford and Senate GOP leadership have done themselves, Sinema, and Murphy few favors by not sharing it with their colleagues.

Which appears to be the case. On January 25 — the day after the closed-door McConnell meeting that Punchbowl News blew up the internet over — for example, The Messenger reported that:

Vance said GOP leaders made a mistake in keeping their members in the dark about what is in the package, which [has] led to "a lot of questioning of strategic motives and whether you're being told the whole truth."

"And so I think what really happened yesterday is you see a lot of members who have voiced increasing frustration about whether we actually know what's in this border security package or whether it's good enough to justify a $61 billion check to Ukraine," he said.

The “Vance” in question is Sen. J.D. Vance (R-Ohio), freshman senator and a key Trump ally in the upper chamber. He continued:

You're shooting at a moving target. ... I think that Trump is very concerned about what's going on at the southern border and he wants to secure it. And he's worried that whatever package comes out is going to be too weak. So we'll see. We'll see what the actual package says and if it is too weak.

Those are all reasonable, even admirable, concerns, and underscore how the work of this troika diverges from “regular order”, the process bills are supposed to follow on their way to passage. Usually, bills are introduced, considered in committee for markup, and then head to the Senate floor for a final markup and a vote.

Assuming this one ever comes to fruition, it looks headed straight to the floor, and Schumer knows how to protect it from any real amendments. I’m not saying that Punchbowl News isn’t completely correct, but if it is, Trump and the GOP are hardly the only ones playing politics.

The Political Angle. Which brings me back to Sinema. She’s from a border state, and unlike Murphy and Lankford at least has some experience on the issue. And, like Murphy, she’s up for reelection in 2024, but unlike her colleague from the Nutmeg State, she’s drawing both Republican and Democratic challengers for her seat.

The leading Democrat is currently Rep. Ruben Gallego (D-Ariz.), who on his campaign’s immigration web page states:

We need smart ways to keep our border secure and create pathways to legal citizenship, to shore up the American dream.

Ruben has been on the forefront of sensible, comprehensive immigration reform in Congress, backing several bills that passed in the House but were held up in the Senate due to the filibuster, an undemocratic tool that Ruben strongly opposes.

Incumbent Sinema was likely enthusiastic to be drawn into this negotiation because she’s a winner regardless. If it’s a bill that simply expands legal immigration while doing nothing to shut down illegal immigration, she tacks to Gallego’s left and undermines his progressive support. If by some accident it actually does fix the border, she can draw support from conservatives and cut into Gallego’s slight lead.

For Lankford and his fellow Republicans, however, there are only three outcomes, and none are great politically: (1) the bill goes nowhere and GOP “cynicism” is blamed; (2) the bill fails to make the border any better and they get blamed for getting whipsawed by Biden and the Democrats; or (3) the bill actually makes the border better, and Biden claims credit for solving a problem he created.

No offense to Punchbowl News, but if there’s anybody who’s truly not interested in “solving the underlying problem” at the border, it’s Biden and the Democrats, not Republicans. The president could “solve” the border crisis if he wanted by changing his policies, but even if you don’t agree with that assessment, he could at least make it a lot better than it is now. He won’t.

H.R. 2 is an immigration bill passed by the House last year and which Speaker Mike Johnson (R-La.) and most House Republicans are pushing as the only alternative to what we know about the Senate deal. The major benefit of H.R. 2 is that it gives the president less wiggle room not to secure the border than does current law (which Biden routinely ignores).

Which is why Biden is lauding the effectiveness of a too-be-negotiated bill that nobody’s seen and that probably doesn’t exist.

If you hear snippets of what’s coming out of the Senate border negotiations and feel like you and your country are being taken for a ride, that’s because you’re either a cynic or being set up as the mark in a White House political con. At this point, my money’s on the latter, but maybe I’m a little cynical, too.