Democratic Sen. Dick Durbin has spent the last six months attempting to do the impossible: find a solution inside the US Capitol to an immigration quagmire.
Standing on a marble staircase just off the Senate floor, he lamented Thursday that one of his worst legislative fears had come true: after a brief shutdown over immigration, fits and starts of negotiations with the White House and more than one bipartisan bill, Congress would leave for the Easter recess without enshrining in law a program that has given individuals who entered the US illegally as children a chance to live, work and be educated in the United States without fear of deportation.
“We are one court decision away from hundreds of thousands of young people being deported,” Durbin said on the floor as he attempted to force a vote on a bill to protect recipients of the Deferred Action for Childhood Arrivals program, which President Donald Trump chose to end last year but is in limbo in the judicial system.
The nuances, specificities, and friction points vary from issue to issue, but the ultimate reality is the same: While public support for fixing immigration and changing the country’s gun control laws is high, members across the Capitol admit that Congress is unable – and at times unwilling – to lead social change.
The body – slow and precise – doesn’t act on moments of outrage, marches or walk outs. And while Congress was arguably not designed to react emotionally to the country’s problems, the inaction on big-ticket items can give some constituents the impression that the Legislative Branch is not being responsive to its constituents. It instead waits, and at times, hopes, that the courts, the President and the state houses will do the work for them.
“My philosophy is very simple,” said Rep. John Lewis, a Democrat from Georgia. “Leaders must lead and we’re not leading.”
But Trump also complained about how Congress operates Friday, as he signed a $1.3 trillion spending package.
“I looked very seriously at the veto,” Trump said at the White House after signing the bill. “I was thinking about doing the veto, but because of the incredible gains we’ve been able to make for the military, that overrode any of our thinking.”
Similarities between guns and immigration
Immigration wasn’t the only thing left undone.
Congress left Washington in the early hours of Friday morning with a long list of items left unfinished. Even their most basic role – funding the government – had taken the form of a monstrous $1.3 trillion spending package that they voted on just a little more than 24 hours after the 2,200-page bill was released.
“This whole budget process, it really is an embarrassment,” Louisiana Republican Sen. John Kennedy said. “I’ve got a beagle and he drags stuff into the backyard every now and then and hides it under the porch. This looks like something my beagle’s been keeping under the porch for about three days. It just makes no sense.”
Congress also left without passing legislation aimed at lowering health care insurance premiums after partisan disagreements over abortion-restriction language bogged down a near win. They also left without engaging in a serious floor debate on guns despite overwhelming public calls for one. Instead – after a gunman in Parkland, Florida killed 17 people at a high school – Congress agreed to tuck a few modest proposals inside the spending bill: funding school safety programs and incentivizing agencies to enter more data into the country’s gun background checks system.
If the country wanted a robust debate on guns, they got some behind-the-scenes negotiations, a side-effect members say of the tendency in Washington to legislate while always having one eye on the next election.
“We’re much more risk averse than we have been in the past,” Durbin said.
It’s not to say Congress does nothing every time. But, members lament – despite some wins on banking legislation and sex trafficking in recent weeks – Congress isn’t in a position to tackle big problems – at least on a bipartisan basis.
On party line votes, Republicans have been able to accomplish goals.
After failing to repeal and replace the Affordable Care Act last year, Republicans in the House and Senate passed a massive tax bill by Christmas that slashed the corporate tax rate, wiped out some loopholes and lowered taxes for many individuals, too.
But those big-ticket items had to be done using an arcane process known as reconciliation, a kind of legislative short cut that allowed the Senate to pass the bill with just a simple majority instead of the usual 60 votes, meaning they didn’t need a single Democratic vote.
The Trump factor
Members have their own answers as to what is holding them back from sometimes even debating – not to mention solving – some of the country’s most contentious issues. Members blame arcane Senate rules, leadership, polarization, fear, outside groups, long memories and short tempers.
A spending bill was stalled in the Senate Thursday for hours, for example, because of a decades-old rivalry in Idaho where sitting senator Jim Risch, a Republican from Idaho, objected to a advancing a spending bill because it renamed a wilderness area for a late political rival.
But members also blame Trump.
“It’s tough. You just don’t know where he’s going to be. You don’t know if you can rely on what you hear on one day. Is it going to change the next day? That makes it tougher,” said Sen. Jeff Flake, a Republican from Arizona who will retire at the end of the year. “Not all the blame is his, we can still bring these things up. … My biggest gripe right now is that we defer too much to the President.”
Never was that clearer than on Friday morning when Trump left Capitol Hill scrambling after tweeting he was mulling vetoing the spending bill Congress had just stayed up late to pass the night before. He eventually signed the bill Friday afternoon.
But Trump’s inconsistencies are especially damaging for Congress when it comes to the social issues, the ones that are as much about cultural identity for Republican voters as they are about policy. On things like guns and immigration, it was always going to be Trump who could make the difference. He – unlike no other lawmaker in Congress – could stake out new positions and challenge traditional GOP orthodoxy, but he’d have to decide to spend some of his political capital as well as his time and focus.
On guns, Democrats said the President had squandered an opportunity.
Emerging from a bipartisan, televised meeting with Trump in February, they were downright elated. For one hour on live national television, Trump defied the National Rifle Association, called for expanding background checks, entertained Democratic Sen. Dianne Feinstein as she urged debate on an assault weapons ban, called out Republicans for cowering to the National Rifle Association and gave the House’s Majority Whip Steve Scalise a dose of political reality that his idea to attach a background check fix bill to a conceal-carry reciprosity bill didn’t stand a chance in the US Senate.
Days and a few meetings with the NRA later, Trump stopped pushing so hard for those reforms.
“I’m frustrated, but not shocked,” said Sen. Chris Murphy, a Democrat from Connecticut who has been a leader pushing for gun overhauls in Congress since the shooting at Sandy Hook Elementary School in Newtown, Connecticut. “It felt like the President was getting a little bit out far ahead of his skis in that meeting, and I didn’t know walking out of that meeting that the NRA was coming in for another meeting, untelevised that night. That clearly changed the dynamic very quickly.”
Immigration solution continues to elude Congress
On immigration, it’s been a similar story.
Trump ran on the promise of a deportation force and a Mexico-financed border wall. His base doesn’t question his allegiance to the rule of law and they trust him in a way they never trusted President Barack Obama to secure the border. If anyone could give the Republican Party cover on immigration, it was Trump. Democrats had hoped that unique position would give Trump room to cut a deal on DACA.
Instead, what they found was –in the words of Senate Minority Leader Chuck Schumer – working with Trump was like “negotiating with Jell-O.”
“I think there is a real fear amongst a large number of my Republican colleagues to cross the President, and yet the President’s position on a lot of these issues is always a moving target,” said Virginia Democratic Sen. Mark Warner.
Republicans blame Democrats for being intransigent and walking away from opportunities to add DACA into the spending bill, but Democrats say it’s Trump they couldn’t trust.
Members on Capitol Hill often use shorthand to describe the two versions of Trump they know: “Tuesday Trump” vs “Thursday Trump,” a reference to two separate meetings Trump held with members of Congress in the span of a few short days back in January. In one, Trump signaled in a televised meeting an openness to finding resolution on DACA. In another, he privately rejected a bipartisan deal and referred to African countries as “shitholes.”
In February, the administration rejected a second bipartisan attempt. This time, Majority Leader Mitch McConnell allowed the Senate to debate the issue. In the end, none of the proposals passed. The one with the most votes – 54 – included a pathway to citizenship for 1.8 million DACA recipients in exchange for $25 billion in border security. It was cobbled together by a bipartisan group of lawmakers who’d negotiated the compromise over a hours-worth of meetings and Girl Scout cookies in Maine Republican Sen. Susan Collins’ office.
Just hours after they announced it, the Trump administration blasted it with statements, tweets and an all-out campaign to stop it before it hit the floor.
“I think the administration lost a great opportunity to get wall funding, take care of the DACA recipients. They overreached and they lost so we’re going to have another shot at this when the court rules, and if you overreach, you’re going to lose,” said South Carolina Republican Sen. Lindsey Graham.
Immigration advocates like Juan Escalante, a DACA recipient and communications manager at America’s Voice, said it’s been hard to sit back and watch Congress wait for Trump while he waits anxiously to see if they’ll be resolution.
“Unfortunately, the people who are elected to represent our interests were waiting for the President to tell them how to do their job,” he said.
Congress needs deadlines
In the aftermath of the shooting at Marjory Stoneman Douglas High School in Florida, the mood was different for a brief period on Capitol Hill. Sen. Marco Rubio, a Republican from Florida, appeared on a CNN town hall and confessed he was rethinking past positions on guns.
Rep. Brian Mast, a Republican from Florida, wrote an op-ed calling for a new ban on assault style weapons and Pat Toomey announced he was going to try and resurrect his legislation to expand background checks at gun shows and on internet sales. Trump was tweeting and demanding action from Congress daily. He wanted something and soon. But, even as thousands of students prepare to descend on Washington to march for changes to the country’s gun laws this weekend, Congress has largely moved on.
Public support is high, but most members haven’t changed their minds. And unlike a spending bill you can fill with sweeteners to entice members to vote “yes,” there is no amount of money that will change decades-worth of identity politics overnight. There’s no deadline forcing a vote any time soon and with an election looming, a debate carries more risks than it does a guarantee of substantive change.
“We had a DACA debate and we ended up with nothing to show for it,” Senate Majority Whip John Cornyn said when asked why the Senate hadn’t engaged in a robust floor debate on things like immigration and guns.
An open debate would expose members on both sides of the aisle to tough, political votes just months before the midterm election.
The Democratic Senate Whip Durbin told CNN that he believes the blame falls on both sides of the aisle when it comes to ducking.
“Particularly on the Republican side, If you tend to stray away from the party line, you could invite a very expensive primary,” Durbin said. “I haven’t seen it as much on the Democrat side, but the fear of big money coming in and obliterating you has led many Democrats to try to avoid contentious debate or dangerous votes.”
On immigration, lawmakers told CNN that the courts have largely allowed Congress to stay silent on DACA since their last attempt. While tens of thousands of DACA recipients are left in limbo as they wait to see how their future unfolds, Congress has yet to feel the heat of the program actually ending.
“I don’t know when we’ll get” a fix, Flake said. “We just have to wait until the court rules and maybe that will force a deadline that forces us to come back, but without a deadline, it’s tough to do. It’s very difficult. It’s difficult under the best of circumstances in an off (election) year.”
Members call for more votes
Members say if they could vote, they could tackle more.
One of the leading complaints members expressed was that they don’t vote. In part, in the Senate, voting takes time. Any one member can hold up and slow down the process.
Floor time is precious and leaders aren’t inclined to force votes that they don’t already know stand a good chance of passing.
Asked what he thought the problem was with Congress not being able to tackle major items very often, Kennedy, a senator who has only served just more than a year, said he thought the key obstacle was “leadership on both sides of the aisle not letting senators be senators.”
“I think leadership has the best of intentions. They do want to protect us, but we’re all big boys and girls. We don’t need protecting. I think most people would like to go back to having unlimited amendments and having a full discussion,” Kennedy said. “I know it will change some votes. Maybe not on the gut check issues, but on some of the nuances of it, It will change some votes.”
“Even though my mind is made up on the assault weapons ban, I think most thinking people constantly test their assumptions against the arguments of their critics. I’m going to sit there and listen. I (probably) won’t change my mind today, (probably) won’t ever change my mind, but it’s sure going to give me something to think about,” Kennedy said.
In the House, there are many more votes than in the Senate. But, some Republicans in swing districts, say they’d like to spend more time on some of the hot-button social issues to distinguish themselves from their party. Rep. Ryan Costello, a Republican from Pennsylvania, says he’d be ready to engage in a gun debate on the House floor.
“The absence of those votes means that Democrats can paint me as conservative as some of my colleagues who would vote not support a bill I would like a DACA bill or some gun safety bills I would support,” Costello said.
But Costello doesn’t blame leadership.
“I don’t point the finger at the Speaker at all,” Costello said. “When we have messaging votes around here, everybody bitches about it and then when we don’t have messaging votes, some people wish they did.”
But voting on even the most basic functions of government present loads of obstacles. The Senate’s vote on their spending bill underscored just how intensive the process is.
Before the votes on the omnibus, Sen. Bob Corker blasted the process that brought Congress to yet another early morning vote, calling it “ridiculous” and “juvenile”. He berated the leadership for forcing a vote well after 10 p.m. ET at night.
On the floor, before all of his colleagues, he demanded McConnell tell him what the hold up was.
McConnell had spent most of his day trying to talk Risch and GOP Sen. Rand Paul out of delaying the bill and forcing the Senate to burn more than 30 hours debating a bill that everyone knew would pass anyway. This wasn’t a politically contentious vote. This was a spending bill.
“My good friend from Tennessee knows that my principal responsibility is begging, pleading and cajoling, and I’ve been in continuous discussions, shall I say, with some of our members who are legitimately unhappy about one aspect or another, and spent a lot of time thinking over whether or not they wanted to expedite the process, and I must say after a long and intense day of such discussions with several of our members who had legitimate concerns, I’m relieved rather than depressed that we might be able to actually finish tonight,” McConnell said.
The most recent spending deal goes through September meaning Congress will have to do this again this again, a fact Trump used as a warning for the Hill.
“I said to Congress, I will never sign another bill like this again.”
CNN’s Ted Barrett, Phil Mattingly, Kristin Wilson and Steve Brusk contributed to this report.