In a remarkable demonstration of the way democracy ordinarily works, Sen. Patrick Leahy held a mark-up session Thursday allowing the Senate Judiciary Committee to shape a new immigration bill.
A mark-up session occurs when a committee discusses and debates a bill, marking it up with amendments, giving both sides a say and putting on display for the world to see the differences and compromises. In watching a mark-up session, we are able to observe senators in the actual process of lawmaking.
That an important issue should be subject to an open and public mark-up session would not be so remarkable were it not for the remarkable distortion of the legislative process that has occurred in recent years by the manipulation of legislative rules.
Lately, we have become accustomed to seeing major pieces of legislation used as chips in an unsavory game of poker, with all the cards in the hands of a few players. Action on budget and debt ceiling votes has been held up until the last minute when leaders are forced by a looming deadline to reach a deal. The members themselves, instead of being engaged in the process of lawmaking, are left to twiddle their thumbs until they get the call from their leaders that a deal has been struck.
Everyone complains that making laws is like making sausage: You don’t want to see what goes into it. But when the deal-making happens behind closed doors, cynicism can be the only response. The decision by Leahy, chairman of the Judiciary Committee, to hold several lengthy open mark-up sessions on the immigration issue is a sign that both Republicans and Democrats see a way through the thicket. If the Republicans were interested merely in blocking the bill, they could use their usual tactics. But given the importance of the Hispanic vote and the party’s record of hostility toward minorities, some Republicans have recognized they must deal with the issue.
Protracted debate about bills in committee ought to be the norm. It is what committees are for. But the process has perils that legislators sometimes seek to avoid by using the rules to foist a measure on the body where a majority can hurry it through. It is unlikely that the Democrats could hurry anything through the Senate these days, so Leahy has decided to take the risks inherent in the amendment process to craft a bill that will win at least some Republican support.
The immigration bill is the product of the so-called Gang of Eight, a group of four Democrats and four Republicans who have sought to forge a bipartisan compromise on immigration. They are looking for a way to achieve both border security and a pathway to citizenship for the 11 million immigrants who are here illegally. Hard-line anti-immigration members will never be placated; the Senate will be working toward a formula allowing the skeptics who worry about border security enough assurance that they can lighten up a little on the punitive measures.
Senate bills follow a perilous path, particularly these days, when Republican use of the filibuster has created what amounts to a political oligarchy: the rule of the minority over the majority. This was the bitter lesson that Leahy learned on gun control legislation, which also began in his committee. The bill calling for universal background checks had majority support on the Senate floor, but the minority was able to quash it by use of the filibuster.
And yet this is why Leahy retained his position as chairman of the Judiciary Committee rather than moving to the Appropriations Committee. The appropriations process has become subject to the poker game, which robs the committee of its authority in creating and marking up a bill. As chairman of Judiciary, Leahy is giving the nation a lesson in democracy. It’s a lesson that needs to be retaught.
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