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RealClearPolitics HorseRaceBlog

By Jay Cost

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Immigration Reform and the Structure of Congress

It appears that the immigration reform bill is not quite dead. In the last few days - as we all know - there was a deal brokered between Senate Democrats and Republicans to regulate the number of amendments to be offered, and to make way for a final cloture vote. Many pundits expect that the Senate shall pass the bill. Then, it shall head to the House - where it is expected to have a difficult time.

Why is it that House members are less inclined toward the bill? The answer, at least in part, can be found in a review of the intentions of the designers of the upper and lower chambers of Congress.

Initially, the Senate was composed of members selected by the legislatures of the respective states to terms of six years. The Framers thought these stipulations would create a body well disposed to serve the nation in certain regards. After all, they empowered the Senate - and only the Senate - to confirm appointments, ratify treaties, and act on articles of impeachment.

In Federalist 63, Madison writes:

The objects of government may be divided into two general classes: the one depending on measures which have singly an immediate and sensible operation; the other depending on a succession of well-chosen and well-connected measures, which have a gradual and perhaps unobserved operation. The importance of the latter description to the collective and permanent welfare of every country needs no operation. And yet it is evident that an assembly elected for so short a term as to be unable to provide more than one or two links in a chain of measures, on which the general welfare may essentially depend, ought not to be answerable for the final result any more than a steward or tenant, engaged for one year, could be justly made to answer for places or improvements which could not be accomplished in less than half a dozen years.
Madison believed that the Senate would be better qualified to deal with the latter "object of government," i.e. affairs that involve long trains of causes and effects. This is one reason why the minimum age for entry into the Senate is thirty rather than twenty-five (as it is in the House), why terms in the Senate last six years rather than two, why state legislatures rather than voters selected senators. The Senate was designed as an institution where the passions of the public held little sway, where mature and estimable citizens could take time to learn the intricacies of policy without worrying about reelection - and therefore where matters that might be beyond the public's immediate apprehension, and therefore its perceived interests, could be considered calmly and coolly.

What of the House? It was intentionally designed to be the people's legislature, to represent the articulated interests of the public. Writes Madison in Federalist 58:

[T]he House of Representatives is so constituted as to support in the members an habitual recollection of their dependence on the people. Before the sentiments impressed on their minds by the mode of their elevation can be effaced by the exercise of power, they will be compelled to anticipate the moment when their power is to cease, when their exercise of it is to be reviewed, and when they must descend to the level from which they were raised; there forever to remain unless a faithful discharge of their trust have established their title to a renewal of it.
All of this relates to the relatively short terms that House members serve. Unlike senators - they are too deeply connected to their constituents to presume to do that which their publics would abhor.

It is not hard, then, to appreciate why immigration reform is favored in the Senate, but not the House. The Senate was designed to facilitate considerations of public affairs that involve a longer time frame. Senators were set free from the vagaries of public opinion to consider solutions to problems of the long run - even if those solutions offend the public. And so, it is not surprising to see Senators supporting this bill, despite the heated opposition of their constituents. Jon Kyl is a case in point. Arizona Republicans are angry at him now, but can they sustain such anger until 2012, the next time that Mr. Kyl is up for reelection? I think not. This means that Mr. Kyl has the luxury of pondering solutions to the great problems, solutions that his constituents might despise. It is here that we can appreciate that the Seventeenth Amendment's provision for the direct election of Senators did not alter the fundamental relationship between the Senate and the people. It moved the Senate closer to the people, but there is still a great distance between the two.

As for the House, one might be inclined to respond that it is the case that - when people are asked about the specific measures in the reform bill - they generally support them. So, one might go on, why should we not expect the House to support the bill as well? There are three related reasons not to expect this - all of which are reducible to the fact that these polls do not figure into House members' calculations as one might think.

First, this bill faces intense opposition from a segment of the public. Polls do not efficiently measure intensity of feeling, which can be of critical importance for House members. Feelings of support for the reform bill seem to me to be lukewarm, while feelings of opposition seem to me to be strong. This matters a great deal. If a majority of the public supports a measure, but does not offer intense support, while a minority opposes a measure intensely - it can be electorally dangerous for the member to vote against the minority. Intensity of feeling does not matter once we start counting votes - but there is a lot of politics that goes into the time before votes are counted, and intensity of feeling can matter a great deal in this lead up. Supporting a bill that a majority of your constituents support only mildly will not incline them to vote for. If a vocal minority of your constituents oppose the bill, you can expect this opposition to be mobilized against you in the next election - where, ironically, they might be able to induce the bill's lukewarm supporters to vote you out!

Second, like most bills - this one delineates a set of winners and losers. Senators have the freedom to support the bill because they think, in the long run, the nation as a whole will win. But House members have to face their constituents in less than 24 months - and so they are forced to think of the immediate consequences. Who are the immediate losers as a result of this bill? Obviously, the right loses. So also does the union left. Hispanic voters probably cannot be considered unequivocal winners. This bill might help those who are of the same ethnicity, but it comes at a cost to these voters - for the bill as it stands severely reduces the practice of "chain" migration, which is a way for them to bring kin to the country. The only unequivocal winners by this bill are a segment of the business community that will benefit from newly legalized labor and currently illegal immigrants who will not be able to vote for a decade or thereabouts. There are many immediate losers and a small number of immediate (voting) winners. This makes it a difficult bill for House members to support.

Third, to argue from nationwide polls that House members should support the bill is to commit the ecological fallacy. Just because the nation as a whole divides in a certain way about the bill does not mean that any given House district does as well. Indeed - there are good reasons to suspect that it will not. The practice of gerrymandering has had the effect of separating different partisans into different districts.

Generally, House members are mindful of the nature of public opinion in a way different than what the polls imply. We should be, too. As a whole, we have seen the public voice opposition to this bill while voicing support for most of its facets. We have seen the public argue that the existing law should be enforced while arguing that illegal immigrants should be given an opportunity to reconcile themselves with the nation. There is a large number in the public whose opinions are incoherent - a sure sign of only mild interest in the subject. House members need not worry about them when it comes time for reelection. They need to worry about which of their particular constituents win and which of their particular constituents lose. Even if only a minority of constituents are losers, this minority could constitute a highly motivated, socially cohesive basis of opposition.

We should be able to appreciate in all of this two fundamental features of Madison's thinking. He anticipated that a healthy republic would be one that takes a middle course between extremes. Sound republican government could not be secured by recourse only to a hotly democratic branch like the House because it might not have the capacity to apprehend the long-term interests of the nation. But it could not be entrusted to a branch like the Senate because it is so far removed from the people that it could become plutocratic. There is more than a hint of the Aristotelian golden mean in Madison's design of balanced powers. Second, and as we have discussed before, there is built into this system a strong status quo bias. The only point at which the system will allow the status quo to be altered is when both the House and the Senate agree. In other words - changes are enacted if and only if those looking out for the voters' immediate interests accept the change, and those looking out for their long-term interests accept the change.

-Jay Cost