Who's right: Ted Cruz or Marco Rubio?

Politico

By Seung Min Kim

December 17, 2015

Who's right: Ted Cruz or Marco Rubio?

On May 21, 2013, Ted Cruz spoke before the Senate Judiciary Committee, and pitched his amendment to the landmark immigration reform bill as a common-sense improvement.

“If this amendment is adopted to the current bill, the effect would be that those 11 million under this current bill would still be eligible for [legal] status,” Cruz said then. “They would still be eligible for legal status, and indeed under the terms of the bill they would be eligible for [green cards] as well.”

On Thursday of this week, an emphatic Cruz struck a starkly different tone.

"Let's have a moment of simple clarity: I oppose amnesty. I oppose citizenship. I oppose legalization," Cruz told reporters in Las Vegas before a campaign rally. "I always have and I always will."

Cruz finds himself in a bind, trying to convince voters that Marco Rubio is full of baloney as he accuses the Texas senator of flip-flopping on the legalization of undocumented immigrants, using that 2013 amendment as the damning piece of evidence. Meanwhile, Cruz says his amendment was a "poison pill" designed to doom the Gang of Eight reform package that Rubio co-authored.

So who’s actually correct? There are two big points to unpack.

First is whether Cruz’s amendment was indeed a “poison pill” meant to kill the immigration bill, which the Texas senator’s campaign now contends. That is unequivocally true, so point goes to Cruz.

Second is whether Cruz’s amendment signaled his true policy beliefs at the time. That’s significantly murkier and ultimately, may never be knowable.

Let’s start with the first point.

The bipartisan group of eight senators — including battle-tested veterans and relative newcomers like Rubio — painstakingly negotiated a delicate compromise in early 2013 that would overhaul every corner of the U.S. immigration system, including a 13-year pathway to citizenship for millions here illegally.

Fans and foes of the legislation, as well as observers at the time, knew the core bill couldn’t change too dramatically because that would upset that compromise, which not only had the backing of Democrats and Republicans in the Senate but also coalitions off the Hill, such as labor unions and the business lobby.

Cruz’s amendment — which called for stripping out a pathway to citizenship, but keeping a path for legalization — would have done precisely that.

The night before each Senate Judiciary Committee markup, senior Gang of Eight aides would huddle to scour through each of the amendments that were teed up for the following day, determining which proposals would be palatable and which would be unacceptable. This strategy was meant to ensure the core elements of the Gang of Eight deal would stay intact (the four members of the Gang who sat on the Judiciary Committee would vote in a bloc, usually with the rest of the committee Democrats, to vote down potential deal-killers).

“This one was one that clearly we all had to oppose because it went to the core of the deal,” recalled an aide to a Senate Democrat during the 2013 negotiations. “It could’ve unraveled the whole deal.”

Sure, Cruz himself never called it a “poison pill” at the time. But no senator refers to his own proposal as a poison pill, even if it plainly is. The Gang of Eight never considered Cruz as “gettable,” and it was well-known at the time that Cruz was never going to vote for the bill and was in fact, trying to kill it.

“Everyone was rolling their eyes and smirking when he said it would improve the bill,” said the aide. “I don’t think anybody took it seriously.”

Arizona Sen. Jeff Flake, another Republican member of the Gang of Eight who also sat on the Judiciary Committee, noted that the pathway to citizenship was a necessary component of the bill that helped secure key GOP priorities, such as tough border security provisions.

So on Cruz’s amendment stripping citizenship, “it was never thought that we can adopt an amendment like that and go forward,” Flake said.

The big tell here is that Sen. Jeff Sessions (R-Ala.), whom no one would confuse as an ally to undocumented immigrants, also voted for Cruz’s amendment, which ultimately failed on a 5-13 vote. So does that vote mean Sessions supports legal status for immigrants here illegally? Nope.

“I think it’s fair to say Ted targeted [citizenship] explicitly,” Sessions recalled this week. “He wanted a clean vote on citizenship. He wasn’t  trying to eliminate everything in the bill he didn’t agree with.”

So even though Cruz spoke passionately in favor of the merits of his amendment — even using phrases such as “out of the shadows,” the rhetoric of immigration advocates — it was clear then and now that his proposal risked collapsing the Gang of Eight legislation. The overall bill would go on to pass the Senate, but die a slow death in the House, which never took it up.

Now, let’s move onto the second point. Did Cruz really support legalizing undocumented immigrants?

As he defended the amendment during the Judiciary Committee markup, Cruz never explicitly said he supported legalization as a policy position. But the average viewer — or voter — certainly can come away with that impression (see again: the “out of the shadows” tone) and Cruz made little attempt, at least publicly, to correct that perception until he flatly stated this week that he was anti-legalization.

When asked Thursday whether the Gang of Eight interpreted Cruz’s comments surrounding his proposal as a sign that the Texan actually supported legal status, Flake responded: “Yeah. There weren’t many at that point who were taking the position that there could be no way to obtain legal status.”

“Well, I mean with an amendment like that, where he proposed the amendment and he said that that would ensure passage of the bill, you can only draw one conclusion,” added Sen. John McCain (R-Ariz.), another Gang of Eight member. “I mean, what else are you going to take from his own words?”

Frank Sharry, the executive director of America’s Voice who observed every twist and turn of the immigration debate, noted that today’s political environment is dramatically different than that of early 2013, when conservatives were clamoring for immigration reform following Mitt Romney’s whopping 2012 defeat, especially among Latino and Asian voters.

“In my view, Cruz was attempting to position himself as a future presidential aspirant with a more conservative approach to comprehensive immigration reform,” Sharry said. “He seemed intent on getting to the right of Rubio but to avoid being identified with the rejectionist camp of Jeff Sessions and Steve King.”

In a May 31, 2013 conversation at Princeton University flagged this week by National Review, Cruz was pressed by moderator and professor Robert George whether he “would actually grant current illegal immigrants — or at least some substantial portion of those who are here unlawfully — permanent status?”

Cruz responded: “The amendment I introduced affected only citizenship; it did not affect the underlying legalization in the Gang of Eight bill.” Again, that could have easily given the impression that Cruz did indeed support the concept of legalizing undocumented immigrants, even if he never outright said so.

“It’s ultimately a question of what’s going on in [Cruz’s] head,” said Mark Krikorian, another close watcher of the Gang of Eight battle and the executive director of the Center for Immigration Studies. “It could go either way. It’s perfectly consistent with the idea that it was a legislative tactic.”

With his careful words in 2013, Cruz clearly left himself some space to avoid being locked down as in favor of legalization. But that’s the problem with deploying legislative tactics that are more familiar to Beltway denizens, not primary voters in Iowa or New Hampshire: Cruz’s parliamentary maneuvering is now haunting him as something he has to explain.

That was exemplified in a Fox News interview between host Bret Baier and Cruz on Wednesday, during which the senator struggled to reconcile his anti-legalization stance now with his rhetoric in 2013 — even if technically speaking, there are no inconsistencies.

“What my amendment did is take citizenship off the table,” Cruz said during the Fox interview. “What it doesn’t mean that that I supported the other aspects of the bill, which was a terrible bill and Bret, you've been around Washington long enough, you know how to defeat bad legislation.”

For more information, go to:  www.beverlyhillsimmigrationlaw.com