How Immigration Reform Can Pass

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27 Jun 2013, Washington, DC, USA --- Sen. John McCain, R-Ariz., left, and Sen. Charles Schumer, D-N.Y., center, two of the authors of the immigration reform bill crafted by the Senate's bipartisan Gang of Eight, confer on Capitol Hill in Washington, Thursday, June 27, 2013, prior to the final vote. The historic legislation would dramatically remake the U.S. immigration system and require a tough new focus on border security. (AP Photo/J. Scott Applewhite) --- Image by © J. Scott Applewhite/ /AP/Corbis
Photo: J. Scott Applewhite/Corbis

The Senate just passed comprehensive immigration reform by a wide 68–32 margin. Now the bill heads to the House, or possibly nowhere. The only way to pass a bill is with Democrats supplying most of the votes. But John Boehner has promised conservatives he won't let any bill lacking support from most Republicans come to a vote — which, if kept, would doom immigration reform. That's what everybody, including me, has been saying.

But it's not completely true.

There's a way around this problem: the discharge petition. If 218 members of the House sign one, then it automatically comes to the House floor for a vote. Last December, Democrats in the House threatened a discharge petition to bring up a Senate bill extending the Bush tax cuts on income under $250,000 a year.

House Democrats would have to do it again with the Senate immigration bill. Democrats only have 201 votes, so they'd need seventeen Republicans to join them, plus one for every Democrat who defects.

Could it work? Well, discharge petitions are rare. But the circumstances here are rare, too. For the majority party, signing a discharge is an act of disloyalty against the leadership. It undermines the Speaker's ability to control what comes to a vote.

But Boehner gave every indication of wanting immigration reform to pass (as most GOP elites do). Now conservatives have pressured him into promising to keep the bill off the floor. But if Boehner wants the bill to pass, he wouldn't want to punish the handful of Republicans who sign a petition.

So then the question would be, could Democrats find seventeen House Republicans willing to endure the wrath of conservatives to sign a discharge petition? The threat would come from primary challenges from conservatives. On the other hand, there is a lot of pro-immigration money out there available to support any Republican facing such a challenge. And the other big advantage of a discharge petition is that Republicans wouldn't need to save bipartisan face by rounding up a respectable number of their own party to support it. Just the bare minimum would do.

Indeed, the House wouldn't have to legislate at all — it could (and would have to) simply photocopy the Senate bill. No hearings, no negotiations — and since the House is bad at all those things, that's another plus.

Immigration reform is a very unusual circumstance. There's a natural majority for it in the House, and the House leadership privately wants it to pass but is being hemmed in by activists. Right now, the discharge petition — normally a wild long shot — looks like the straightest line to a signed bill.