7 min read

The supply and demand of bipartisan compromise

Lawmakers aren’t the only ones to blame when Congress routinely fails to enact cross-party compromises.
The supply and demand of bipartisan compromise
Photo by Rock Staar / Unsplash

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After months of negotiating, Sens. James Lankford (R-OK), Chris Murphy (D-CT), and Kyrsten Sinema (I-AZ) on Sunday released their $118 billion package aimed at increasing border security and providing aid to Ukraine and Israel.

The full piece of legislation be found here. If you don’t want to sift through 370 pages of legislative text, though, it can be helpful to consult the summaries put out by the bill’s co-authors. Often, when bipartisan deals like this are put together, each of the Senate offices that had a hand in the negotiations will release identical summaries of the bill, a sign that the sponsors are (literally) on the same page, united in mission and purpose.

However, in this case, each of the Senate authors released markedly different summaries of the measure — providing us an unusually transparent glimpse into how both Lankford and Murphy will attempt to sell the legislation to their parties.

I. A tale of two summaries

For one thing, Lankford only released a synopsis of the border security provisions in the bill; you could read his entire summary, or his statement announcing the deal, without ever knowing that the same package would provide $60.6 billion in aid to Ukraine, $14.1 billion to Israel, $10 billion to Ukrainian and Palestinian civilians, and $4.83 billion to allies in the Ind-Pacific.

Lankford’s summary does, however, highlight the fact that the package would end the practice of “catch and release” (by requiring supervision or detention of all migrants processed at the border) and greenlight $650 million in funding to build new border wall. Murphy’s summary neglects such details.

The package also contains changes to parole authority, which is used by presidents to allow otherwise inadmissible migrants into the country for humanitarian reasons. The measure would not institute an annual cap of how many people can be offered parole or stop presidents from offering parole to entire classes of people at once, as some Republicans had called for. But it would sharply limit the president’s power to offer parole to migrants who arrive by land, largely narrowing the authority to those who arrive at airports.

In Murphy’s telling, this “protects the president’s parole authority”; in Lankford’s, this would “stop the daily flagrant abuse” of parole power.

Both Murphy and Lankford note one of the package’s most prominent provisions: the creation of a new Border Emergency Authority, which would allow the Department of Homeland Security to completely close the border to new entries if daily migrant encounters exceed 4,000 for several days straight — and would require closing the border if daily encounters exceed 5,000 for several days. (The number of migrant “encounters” includes all migrants who are apprehended at the border without a passport, green card, or visa. There were more than 302,000 such encounters at the southern border in December 2023, which averages to nearly 10,000 a day.)

Lankford’s summary details the exact threshold at which the emergency authority would kick in, noting that it has been met “every week but one in the past four months.” Murphy’s summary does not.

Murphy’s outline notes the limits on the authority: it will only be able to be used a certain amount of days each year; some asylum applications will still be processed during such emergencies; the authority will sunset after three years. Lankford’s briefing leaves those caveats out.

Lankford notes that the authority is “even stronger than the Title 42 Authority used during the Trump Administration because it also includes new legal consequences” for anyone who repeatedly tries to cross the border during an emergency period. Murphy doesn’t mention that.

We could go on like this for quite some time. Murphy notes the new pathway to citizenship for Afghan allies, the new right to counsel for asylum seekers, the 250,000 new family and work visas; Lankford boasts that the standard for asylum would increase and that those who do not meet it would be removed in “days or weeks, not years.” Both senators note that the asylum process would be sped up, from years to six months. Lankford stresses in all-caps that “THE NEW BORDER SECURITY BILL DOES NOT INCLUDE AMNESTY OF ANY KIND.” Murphy brags that the bill does not feature the “adoption of [an] impossible asylum standard.” Both are correct.

II. Half a loaf is better than none

What can we take away from this exercise? Clearly, there are portions of the deal that Murphy and Lankford are each proud of. And there are portions that each would rather hide from.

In other words: it was a compromise. And now the authors of that compromise, having both made tough choices and offered hard concessions, are doing what has to be done to spin it to their colleagues as a victory — work that begins with the one-sided bill summaries we just read through. (True to her independent status, Sinema’s summary is an interesting blend of the two outlines.)

Early signs show that the dealmakers have their work cut out for them. On the right, Speaker Mike Johnson (R-LA) has declared the bill “dead on arrival” in the House, while Sen. Mike Lee (R-UT) termed the measure a “betrayal,” because it is not tough enough on border entries. On the left, Sen. Bob Menendez (D-NJ) said the deal’s immigration provisions were “unacceptable” while Sen. Bernie Sanders (I-VT) announced opposition to the Israel funding.

The extremes of both parties have lined up in opposition, as is so often the case with compromises. Sinema has said that, if this bill passes, it will be a “middle-out” process. But the congressional middle has, of course, shrunk in recent years — and includes lawmakers who fear the loudest voices in their parties. It is a sign of today’s Washington that the “middle,” in this case, includes pillars of the capital like President Biden, Senate Majority Leader Chuck Schumer (D-NY), and Senate Minority Leader Mitch McConnell (R-KY) — all of whom support this agreement — and still, that might not be enough to get the deal past the disproportionately-noisy border hawks on the right and immigration activists on the left.

Nobody will view the deal as perfect, but the alternative — for either side — is not a better agreement; it is nothing. In a world where most legislation requires 60 Senate votes, Republicans are unlikely to get another deal this tough on illegal immigration; Democrats are unlikely to receive an agreement that includes these kinds of legal immigration expansions.

“Now, senators must make a decision,” Sinema said in a statement. “Pass our package and solve the crisis or accept the status quo, do nothing, and keep playing politics while our system breaks and our communities continue to suffer.”

Despite many attempts, and the current system’s many flaws, Congress has chosen “do nothing” for nearly 40 years now, since the last major immigration reform bill was passed in 1986. This is an opportunity to do something — something half-a-loaf, perhaps, but still something consequential on an issue many Americans are more concerned about than any other.

III. Supply and demand

The first Senate vote on this bill, which will be Wednesday, will thus be a key test of Congress’ capacity to legislate instead of bloviate on pressing issues.

Americans are highly skeptical that this capacity persists in the modern era. A Pew Research poll last September found that 86% of Americans believe “Republicans and Democrats are more focused on fighting each other than on solving problems.” 84% said that members of Congress “do a bad job” at working with members of the other party.

But voters miss something when they only cast the blame on lawmakers for these failures.

Clearly, the modern dearth of major bipartisan legislation is partially a supply-side issue: the supply of compromise-oriented legislators has declined, as I’ve written previously. But it’s also a demand-side issue: Americans say, in that Pew poll and others, that they want more bipartisan agreements — but they don’t always show it in their votes.

For proof, look no further than Lankford, who has been censured by his state GOP for his role in the border negotiations, and Sinema, who has been run out of the Democratic Party for her centrist stances, despite the fact that she has played a key role in historic agreements on infrastructure, gun control, same-sex marriage, and now immigration.

Sinema, for one, is currently mulling whether to seek a second term. Per the Washington Post, her team’s considerations revolve around a central question: “In today’s hyperpartisan environment, do voters value elected officials who bring both sides together to deliver legislation?”

“If she is able to get a border security deal across...she will have accomplished something that hasn’t been done in 30 years as a first-term senator,” a consultant familiar with her deliberations told the Post. “But do voters even care?”

Often, they signal they do not, with primary electorates rewarding party orthodoxy — even though, in a 51-49 Senate and 219-212 House, crossing the aisle is the only way for lawmakers to get things done, which voters claim to want.

Contrary to the beliefs sketched out in that Pew poll, Democratic and Republican members of Congress actually do work together quite a bit: in just the past few months, deals on everything from paid leave to AI have been introduced. But these deals don’t always receive floor votes, partially because lawmakers fear backlash from their voters. Counterintuitively, productivity has become the real political risk; stalemate is rarely punished.

The Lankford-Murphy-Sinema deal is in the proud tradition of American compromises — dating back to the Constitution itself — that thrill no one, but move the ball forward regardless. This one will receive a floor vote, at least in the Senate; it will be up to lawmakers to cast a “yea” or “nay,” but up to voters to make the choices that incentivize such compromises in the future.

Otherwise, members of Congress will receive a clear message for the next time the possibility of a substantive, bipartisan deal is dangling in front of them: Don’t even try. It isn’t worth it.

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