Should They Stay Or Should They Go?

By KAREN TUMULTY

You wouldn't think the man who made his mark in Washington as the knight-errant of campaign-finance reform and whose name is rarely written without the word maverick attached would ever meet a cause he deemed hopeless. But that was pretty much where Arizona Senator John McCain was a couple of weeks ago in his quest to transform the nation's immigration laws and set on the path to becoming citizens the estimated 11 million people who are here illegally. When the proposition had been tested, as recently as December in the House of Representatives, the result was a bill that went just about as far as possible in the other direction, one that would build two layers of reinforced fence along much of the 2,000-mile border with Mexico and declare everyone a felon who is illegally on this side of it. But then, as the implications of that bill started to sink in, protesters began pouring into the streets of cities from Los Angeles to Philadelphia to vent their outrage. They were illegal immigrants, and their American-citizen children emerging from behind their shield of invisibility, plus legions of voters who count the newcomers as family, friends and neighbors, in numbers "bigger than the Vietnam War demonstrations," McCain says. "I never could have predicted that we would have 20,000 people in Arizona or half to three-quarters of a million in Los Angeles." Something almost as remarkable started to happen inside the Capitol. One by one, Senate colleagues started coming to him privately whom McCain had written off as "rock-ribbed" opponents to the legalization that he and Democratic Senator Edward Kennedy had been working on for a year. There were maybe 10 of them, McCain says, all asking the same questions: "Isn't there a compromise on this? Isn't there some way to come together on this?"

Then came something that McCain had even less reason to expect. With hundreds on the Capitol Plaza chanting "Let our people stay!" the Senate Judiciary Committee last week gave its imprimatur to legislation very much like the Kennedy-McCain immigration bill and sent it on to the Senate floor, where it stands a good chance of passing.

But the demonstrators were also sparking other reactions, especially after they ignored the pleas of rally organizers to wave only American flags. There was the scene in Apache Junction, Ariz., in which a few Hispanic students raised a Mexican flag over their high school and another group took it down and burned it. In Houston the principal at Reagan High School was reprimanded for raising a Mexican flag below the U.S. and Texas ones, in solidarity with his largely Hispanic student body. Tom Tancredo, the Republican from Colorado who has become Congress's loudest anti-immigrant voice, said his congressional offices in Colorado and Washington were swamped by more than 1,000 phone calls, nearly all from people furious about the protests in which demonstrators "were blatantly stating their illegal presence in the country and waving Mexican flags." Mississippi Senator Trent Lott, describing the marchers, used language usually applied to the tantrums of children: "When they act out like that, they lose me." Virgil Goode, a Republican Congressman from Virginia, said, "If you are here illegally and you want to fly the Mexican flag, go to Mexico."

For nearly as long as the U.S. has been a country, the question of who gets to be an American has stirred our passions and conflicted our values as few others have. In 1886, the same year that the Statue of Liberty was dedicated in New York harbor to the ideal of taking in the tired, the poor and the huddled masses yearning to breathe free, racist mobs rioted in Seattle and forced more than half the city's 350 Chinese onto a ship bound for San Francisco. That two chambers of Congress, both run by the same political party, should appear to be headed in such different directions on immigration tells you that the country is no less conflicted about the issue today. But the fact that for the first time in 20 years, lawmakers are even considering major legislation to do something about immigration shows there is one thing about which everyone can agree when it comes to the current system: it's broken.

The immigration overhaul in 1986 was supposed to have fixed the root problem of an uncontrolled influx by making it illegal for U.S. employers to hire undocumented workers and offering an amnesty to illegal immigrants who had been here for five years at that point. Instead, the best estimates suggest that since then, the number of illegal immigrants has more than tripled. Local governments are staggering under the costs of dealing with the inflow, and since 9/11, controlling who comes into the country has become a security issue as well.

The kind of comprehensive immigration reform being discussed by the Senate carries the potential of transforming the politics of the country by making citizensand therefore votersof millions of mostly Hispanic residents in relatively short order. Says McCain: "This legislation is a defining moment in the history of the United States of America."

And possibly in the history of the Republican Party, which helps explain why the politics of immigration is becoming so tricky for the G.O.P. The business interests in the party base don't want to disrupt a steady supply of cheap labor for the agriculture, construction, hotel and restaurant industries, among others. That's why business lobbyists broke into applause and embraced in the Dirksen office building as the Senate Judiciary Committee voted 12 to 6 to send its bill to the Senate floor, with four of the committee's 10 Republicans joining all its Democrats in favor. So doubtful had been the outcome that there were gasps in the hearing room when Republican chairman Arlen Specter cast the final vote for it himself, giving the legislation extra momentum as it heads to the floor. But those same business interests had lost badly in the House, where social conservatives argued that illegal immigration has begun an uncontrolled demographic and cultural transformation of the country, threatening its values.

Where the President stands on the issue is likely to be a deciding factor. Immigration policy was one of the ways in which George W. Bush defined himself in his 2000 campaign as a different kind of Republican, a Texas Governor who believed that "family values don't stop at the Rio Grande." Once he got to the White House, he infuriated some social conservatives by proposing--and appearing to be serious about--an immigration plan that included a guest-worker program. It was an idea he shelved after 9/11, then put forward again as the first policy initiative of his 2004 re-election campaign. But in a private White House meeting with congressional leaders last year, Bush confessed that he had misjudged the politics of the issue and agreed to recalibrate, putting more emphasis on border security. The President has insisted, though, that he wants reform that includes both enhanced border enforcement and provisions for guest workers. His ideas, which focus on giving migrant laborers temporary visas, have never gone as far as the McCain-Kennedy proposal of offering citizenship to illegal immigrants and some future guest workers. Last week, as Bush met in Mexico with President Vicente Fox, he said, "We want them coming in in an orderly way." He added, "And if they want to become a citizen, they can get in line, but not the head of the line."

In Bush's closed meeting with Fox, a senior Administration official says, the U.S. President told the Mexican one that there is an "unsettling" undercurrent of isolationist and protectionist attitudes in the U.S. "It's an emotional issue," Bush told Fox but predicted, "I think we will get something" out of Congress on immigration. The two talked nuts and bolts of legislative strategy, with Bush saying the plan is to get a comprehensive immigration bill from the Senate, then add some of those elements to the House's security bill when the two versions reach a conference committee. A White House official told TIME that once the bill reaches a conference committee, Bush will weigh in more heavily on the specifics that he wants in the final law.

Bush is keen to preserve for Republicans the gains that he is credited with having made among culturally conservative but traditionally Democratic Hispanics, who gave him 40% of their vote in 2004 and are believed to have been crucial to his re-election. Hispanics account for about half the population increase in the U.S. Florida Senator Mel Martinez, a Republican, warned his party last week that it risks losing ground with "individuals who share our values on so many different issues." Former Republican Party chairman Ed Gillespie, a close adviser to the White House, said, "The Republican majority already rests too heavily on white voters, and current demographic voting percentages will not allow us to hold our majority in the future."

There is also a far more immediate reason for congressional Republicans to find some way to bridge their divide on immigration: they are short on tangible accomplishments in this midterm-election year. A law that would address the immigration mess would give them something to brag about as voters get ready to go to the polls. "We need to have a [presidential] signing ceremony on the border before the fall," says one of the G.O.P.'s top strategists. "We need to get it done."

A TIME poll conducted last week suggests broad support for a policy makeover. Of those surveyed, 82% said they believe the government is not doing enough to keep illegal immigrants out of the country, and a large majority (75%) would deny them government services such as health care and food stamps. Half (51%) said children who are here illegally shouldn't be allowed to attend public schools. But only 1 in 4 would support making it a felony to be in the U.S. illegally, as the House voted to do when it approved the tough enforcement bill submitted by Wisconsin Republican F. James Sensenbrenner. Rather than expel illegal immigrants from the country, more than three-quarters of those polled (78%) favored allowing citizenship for those who are already here, if they have a job, demonstrate proficiency in English and pay their taxes.

Some House Republicans are starting to feel pressure at home over their hard-line stance. In Reading, Pa., a Hispanic lawyer named Angel Figueroa arranged a meeting last month for his Congressman Jim Gerlach--who faces a tight race this fall--and voters in his district who oppose the House bill, which Gerlach supported. The meeting included not only immigrant-advocacy groups but also the president of the local community college, the head of a federally funded labor-training-and-placement company, the personnel director of a mushroom-growing company and a local Catholic priest. After listening to their arguments, Gerlach appeared to be reconsidering his vote. "One of the saving aspects of our democracy is our ability to fix mistakes," he told his constituents. "I supported the House bill," he said to TIME. "But we need to move the ball forward, and I agree wholeheartedly that that is not the final policy coming out of Congress."

House leaders are also showing a new flexibility. "We're going to look at all alternatives," House Speaker Dennis Hastert, who voted yes on the Sensenbrenner bill, said two days after the Senate committee's action. "We're not going to discount anything right now. Our first priority is to protect the border. And we also know there is a need in some sections of the economy for a guest-worker program." House majority leader John Boehner has begun talking dismissively about the feasibility of the 700-mile fence that the House voted to build along the border.

But many others in the House, seeing the direction that the Senate is taking, are only digging in deeper. More than a third of House Republicans belong to the anti-immigration caucus led by Congressman Tancredo of Colorado. (Only two Democrats are members.) After the Senate Judiciary Committee voted, more than a dozen of them held a news conference denouncing it. "It would be like a dinner bell. 'Come one, come all,'" said Colorado Representative Bob Beauprez.

Senate foes of loosening the immigration law are not giving up either, despite the Judiciary Committee vote. As debate opened last week, Oklahoma Senator James Inhofe gave a taste of what is to come when he offered an amendment that would solve the problem of insufficient border surveillance by adding more border guards, deputizing retired police officers to patrol the frontier and authorizing citizen militias to hunt and capture illegal border crossers. Inhofe argued that the conditions in which captured border jumpers are held--he mentioned the provision of sports facilities and good food--are too pleasant to deter aliens from crossing into the U.S.

In the end, drafting a law acceptable to both the House and the Senate would mean finding common ground in three areas, each of which presents political challenges and real-world consequences of its own:

o TIGHTENING THE BORDER

There is only one thing on which all sides of this debate agree: America needs to get tougher about controlling its borders. If there is any easy part to writing an immigration law, this is it. Every proposal before Congress calls for more border-patrol agents, more jail cells and detention centers for captured illegal immigrants, and new technology to enable employers to screen employees to ensure that they are lawfully in the country.

All those measures are popular with voters, although in practice beefed-up enforcement can create as many problems as it solves. When the Clinton Administration began patrolling the California border more closely in the mid-1990s, the illegal traffic simply shifted eastward--increasing tensions in Arizona and New Mexico, where illegal immigration had largely been tolerated.

And for all the cry for more scrutiny of the border, none of the proposals under consideration would accomplish nearly as much, experts agree, as getting tough at the other end of the pipeline--on employers--by enforcing the law already on the books. Immigrants will continue to come to the U.S. as long as they know they can get jobs. The 1986 Immigration Reform and Control Act made it illegal for employers to knowingly hire undocumented workers and imposed penalties of up to $11,000 for each violation. But lawbreakers are rarely punished. In 2005 the government issued just three notices of intent to fine companies for employing illegal workers, down from 178 in 2000.

That may be in part because the number of federal immigration investigators dedicated to work-site enforcement fell from 240 in 1999 to just 65 in 2004, according to the Government Accountability Office. And what resources the nation's immigration police put toward enforcement were diverted after 9/11 to finding undocumented employees in security-sensitive sites such as airports and nuclear power plants--hardly the first places that illegal immigrants tend to look for work. On those rare occasions when employers are punished, the penalties are so small that they amount to little more than a cost of doing business. Both the Sensenbrenner bill and the draft the Senate is considering would increase sanctions and step up enforcement.

o ASSURING A LABOR SUPPLY

The country has welcomed so-called guest workers into the U.S. since World War I, during which tens of thousands of Mexican workers were allowed in temporarily to help on the nation's farms. The idea is that when harvest time is over, they return home.

Except that often they don't, which is why the House rejected President Bush's proposed guest-worker plan when it passed its immigration bill in December. But House leadership strategists say privately they believe this time, with a strong lobbying effort by business and some additional pressure by Bush, they may find the votes they need to support a guest-worker program in a conference bill. The Senate Judiciary bill would allow at least 87,000 guest workers a year to apply for permanent residency, a step toward citizenship--which may be more than House Republicans can swallow. But even if guests are explicitly temporary, there is always a great risk that they will nonetheless stick around after their papers expire.

o THE A WORD

And what of the 11 million illegal immigrants who are in the U.S.? Will they get a chance at the biggest prize--citizenship? No word in the immigration debate is more freighted than amnesty. Everyone who wants to reform immigration policy to legitimize a significant portion of those who are here illegally is quick to insist that what they are talking about is "earned citizenship." The bill that passed the Senate Judiciary Committee, for example, created a path to citizenship that would take 11 years and require that immigrants hold jobs, demonstrate proficiency in English, pass criminal-background checks and pay fines and back taxes. "This is an earned path," stressed South Carolina Senator Lindsey Graham, one of the Republicans who voted for it. "Some will make it, and some will not. The only thing to me that is off the table is inaction."

It's easy to understand why the idea of an amnesty would spark such a negative reaction. The country tried one with the 1986 law. Nearly 3 million people took advantage of it, and the amnesty was followed by an explosion in illegal immigration. But not to offer some process by which illegal immigrants gain legitimacy is to keep them permanently underground. "To me, it goes to the core of your view and recognition of human dignity for everybody," says Kansas Senator Sam Brownback, another of the Judiciary Committee Republicans who voted for legalization. But to do it is to reward lawbreaking, says Texas Senator John Cornyn, who voted against the bill. "It will encourage further disrespect for our laws and will undercut our efforts to shore up homeland security."

So which way is really in the American tradition? In some respects, that's beside the point, because the immigration debate, like immigration itself, is a bet on the future. "Immigrants don't come to America to change America," says Florida Senator Martinez, who arrived from Cuba when he was 15. "Immigrants come to America to be changed by America." But either way, they come.

With reporting by Mike Allen/ with Bush, Perry Bacon Jr., Massimo Calabresi, Mark Thompson/ Washington