As the Texas Independent previously reported, Hutchison introduced a “resolution of disapproval” (S.J Res. 6) in February to block the FCC’s recently adopted net neutrality rules, making good on a promise she made in December. After similar legislation passed the House in April, the resolution makes its way to the Senate for a vote.

If passed, the resolution could prevent the current rules from taking effect and keep the FCC from adopting similar rules with statutory authority in the future — a precedent with deep implications. The resolution depends on not only a majority vote in both chambers but also President Obama’s signature.

Joel Kelsey, political adviser at the media reform group Free Press, said the resolution could circumvent traditional Senate procedure. If Hutchison garners 30 signatures for a petition, the resolution wouldn’t need a committee review, avoiding a potential filibuster and heading straight to the Senate floor. If enough votes are cast in favor of the increasingly partisan issue, the biggest hurdle facing opponents will likely be Obama, a net neutrality supporter who appointed a personal friend, Julius Genachowski, to head the FCC.

The commission’s net neutrality guidelines prevent Internet service providers from letting some network traffic that flow through their networks faster than others, preventing ISPs from discriminating against certain content and ensuring consumers have equal access to all sites — even those of a business competitor.

While some contend the threat of discrimination is a phantom one, many instances of blocking and censoring content by ISPs have been reported.

“It is really just the idea that consumers should be able to go wherever she wants online, be able to download whatever legal content or software there is online and sign up for any service they choose, without being blocked or prevented from doing so by companies like AT&T and Comcast,” Kelsey said.

The rules were made official in late September and are expected to take effect Nov. 20. While some public interest groups argue the rules are not stringent enough, for not protecting data discrimination on mobile devices, lawmakers like Hutchison say the rules go too far and would inhibit economic development.

Hutchison argued the regulation is an “unnecessary intervention,” a detriment to job growth and innovation, and an “unprecedented power-grab,” echoing the concerns of net neutrality opponents like political counterpart, U.S. Sen. John Cornyn of Texas.

“I’m very disappointed that the FCC has decided to move forward with its misguided net neutrality order,” she wrote in a statement. “Companies and industries that use broadband communications have flourished over the last decade without government intervention, yet the FCC has chosen to ‘fix’ a problem that does not exist.”

Many findings run counter to that argument, though. For instance, a recent Wall Street Journal story pointed to a study that said net neutrality in Europe has been worth 155 billion euros.

“The open Internet has allowed start-ups such as Skype, Yahoo!, Spotify, YouTube, Google and Facebook to scale globally,” the study writes. A 2006 report commissioned by Free Press, the Consumers Union and the Consumer Federation of America found network neutrality to be the catalyst to competition and innovation on the Internet. A “tiered Internet” would, they wrote, “severely curtail consumer choice, giving consumer control over the Internet to the network owners.”

The study indicated anti-net neutrality guidelines would actually undermine innovation, investment, and competition.

“Despite the rhetoric against net neutrality, it can produce tremendous economic benefits,” Kelsey said. “It allows entrepreneurs and small businesses to scale their business models and reach millions of consumers they wouldn’t otherwise have access to — they don’t have to invest in fleet trucks and storefront to compete with Walmart. Without net neutrality rules, only one or two companies could reap those benefits as smaller businesses would likely be forced to pay a premium to big telecom like Comcast.”

“While ‘No Government Regulation’ may be a good sound bite for the incumbent industries’ PR machines, there’s not much substance there,” Kelsey said.

The Texas Association of Business announced its new venture, dubbed the Texas Center for Federal Policy, at an August 17 press conference, the Austin American-Statesman reported, joined by U.S. Sen. John Cornyn (R-Texas).

As the Statesman’s Kate Alexander wrote, the new group is taking up issues — particularly Medicaid, Medicare and Social Security — that national small business groups hadn’t gotten involved in:

Texas’ small businesses have long been represented in Washington by the National Federation of Independent Business, which supports deficit reduction and opposes tax increases on small business. The group has not taken a position on entitlement reform.

[TAB President Bill] Hammond said the Texas-specific lobbying effort would harness the power of the state’s local chambers of commerce and businesses.

“The delegation wants to hear from the folks back home,” Hammond said.

“Our members have told us that a lot of the pain and suffering they are feeling today is emanating from Washington, D.C.,” Hammond said at the press conference (watch the video below).

Last week Hammond penned an op-ed piece urging the U.S. Environmental Protection Agency to remove Texas from its new cross-state air pollution rule, taking up a cause already backed by Gov. Rick Perry, Texas environmental regulators and the conservative Austin-based Texas Public Policy Foundation. Hammond’s opinion piece came days after three Texas Railroad Commissioners sent a letter urging Texas Attorney General Greg Abbott to take the EPA to court over the new rule.

While the EPA has said it’s determined Texas power plants can afford to make the necessary improvements without limiting the state’s power supply, a study by the Electric Reliability Council of Texas recently found otherwise.

Hammond’s op-ed argued the new rule wouldn’t just mean more expenses for a few big power plant operators, but would endanger Texas jobs — Texas coal, which burns dirtier than coal from some other parts of the country, would be at a disadvantage, he wrote:

When it comes to jobs let’s not forget the people who work in the mines producing Texas lignite coal to keep our lights on and all the other jobs this industry supports. There could be 14,000 Texas jobs at stake. Where will those folks go if the EPA dries up the market for Texas lignite? Many of these are rural jobs. The rural economy of Texas has been through enough in the ongoing drought without another blow like this.

The argument puts a small-business spin on an issue — the dangers of EPA regulation — that’s become popular among GOP leaders in both Texas and in Washington.

The group lays out its strategy in a pamphlet titled, “Washington Woes. Texas Solutions”:

In the coming months, the Texas Center for Federal Policy will rally like-minded organizations and elected officials from across the country around our message that meaningful entitlement reform is the only path to continued prosperity for our state and nation.

Over the last decade in Texas, the group has given almost exclusively to Republican candidates. In 2008, Hammond and TAB pled guilty and took a $10,000 fine for their improper role footing the bill for mass-mailing campaigns supporting Republican candidates in 2002, an effort connected to former House Speaker Tom DeLay’s other projects supporting GOP candidates with money from hidden sources.

As the Statesman noted in an editorial at the time, though, prosecutors’ failure to get a more serious indictment signaled the coming growth in corporate campaign money in Texas:

Hammond and his allies won the larger issue last year when a judge rejected an indictment against the Texas Association of Business in connection with the $1.7 million Hammond raised from 30 corporations to help 24 GOP House candidates.

For future campaigns, corporate executives will have to be careful, but as Hammond said Tuesday, the “right of corporations and associations to inform the public on how their elected officials represent them are completely upheld.”

The Texas Legislature enacted its first ban on corporate campaign contributions in 1905. Later, the rights of corporate and union executives and their supporters as individuals to make themselves heard was protected by the use of political action committees, which could collect voluntary personal campaign contributions — but not money from corporate or union treasuries.

But the courts in the Texas Association of Business case have held that corporations and unions have free speech rights that allow them to spend money on campaigns commenting on individual officeholders or candidates , as long as they don’t expressly advocate their election or defeat.

So, if you thought the Legislature was already dominated by business interests, just wait. You ain’t seen nothin’ yet.

Both Schumer and ranking member John Cornyn (R-Texas) framed reform of high-skilled immigration policy as necessary for American economic competitiveness and, in particular, for keeping foreigners who are educated in U.S. universities in the national workforce after they graduate.

“We should staple a green card to their diplomas,” Schumer said in his opening remarks, instead of requiring them to leave once their student visas expire.

But the senior members sparred over whether reform of the employment visa system should be piecemeal, or part of a broader comprehensive package. Cornyn, addressing his Democratic colleague, said, “I think we can do just this,” arguing that the current stalemate in Congress over comprehensive reform didn’t mean that individual reforms couldn’t be achieved. But Schumer retorted that comprehensive reform is necessary because so many other stakeholders in the immigration debate want to be a part of successful legislation. Other Senate Democrats on the committee, including Sen. Al Franken (D-Minn.) and Sen. Richard Blumenthal (R-Conn.) agreed.

Dr. Puneet S. Arora, an Indian-born clinical researcher who first entered the U.S. 15 years ago and is still waiting for a green card, told the committee that the policy that prevents him and thousands of otherwise successful Indian immigrants in the United States from acquiring a permanent visa is the requirement that the fixed quantity of employment-based visas not exceed a certain percentage for each country of origin. Thus, the disproportionately large number of Indian immigrants to the U.S. means that Arora must wait many years on a long waiting list before getting his green card.

Chuck Grassley

One point of controversy, picked up on by Sen. Chuck Grassley (R-Iowa), was whether there really are labor shortages in the STEM (Science, Technology, Engineering, Math) reliant industries. Dr. Ronil Hira, an immigration policy expert from the University of Rochester, said that other experts on the panel (those representing the employer side of the immigration debate) were misrepresenting the extent to which high-skilled jobs are really going unfilled because of a lack of qualified workers. He pointed out that high-skilled native-born American workers are suffering from high unemployment rates (although not as high as low-skilled workers are). But other panelists, including the chief executive of NASDAQ OMX and the president of Cornell University, responded that looking at raw unemployment numbers fails to capture the ways in which jobs requiring very particular skills aren’t being filled for lack of candidates.

“For years, our country has struggled to find a way forward on immigration reform. Since the debate reached its peak in 2007, our economy has experienced turmoil comparable to the Great Depression. Americans are out of work, families are being foreclosed on, and businesses are suffering. I agree we must do all we can to improve our economic situation. However, I have concerns with the notion that increasing immigration levels and enacting legalization programs is the answer to the current economic downturn,” Grassley said.

Hira argued that temporary visas are abused by companies located in the United States that use them to hire foreign engineers at below-market prices. Schumer agreed that he believes this is a problem, which was why he sponsored last year’s border enforcement bill, which raised the fees that high-tech companies must pay if they wish to sponsor foreign workers.

Perhaps the most contentious moment in the hearing was when Sen. Jeff Sessions (R-Ala.), after lecturing the business leaders present for supporting the torpedoed 2007 Senate comprehensive reform bill, began to debate Microsoft’s top lawyer Brad Smith over whether a Canadian style points system would be better than the United States’ employer-driven immigration system: “I would take Canada’s system in a heartbeat,” Sessions said, because it was a “national policy” rather than a policy allowing businesses to pick and choose who should get a visa.

Canada’s immigration system assigns points to visa applicants based on their economic desirability, including such factors as the education level, languages spoken and other specific skills possessed by the immigrant. Business leaders and immigration experts have criticized points systems because they fail to directly take employers’ needs into account.

During the second part of the hearing, the committee heard from three mayors from across America, one of whom was the Republican mayor of Uvalda, Ga., who is a party to the lawsuit against that state’s new immigration law. Mayor Paul Bridges argued that the immigration law will devastate Georgia’s economy and actually decrease public safety because local police will be diverted to enforce the law.

Mayor David Roefaro of Utica, N.Y., highlighted the contribution that Bosnian refugees had made to his city’s economy. These Bosnian immigrants were admitted under the humanitarian, not employment or family, visa quota provided under existing U.S. immigration law, but Roefaro stated that they had nevertheless empowered Utica to create more jobs than they would have otherwise.

Schumer concluded the hearing with the concurring observation that many different types of immigrants can contribute to economic growth.

The DREAM Act — reintroduced this year by Durbin — would grant people who entered the U.S. illegally before the age of 16 conditional permanent resident status for a period of six years, after which they would be eligible to become legal permanent residents if they obtain at least an associate-level college degree or serve in the military for two years. #

In his opening statement, DREAM Act opponent Sen. John Cornyn, R-Texas, said he sympathized with DREAM Act-eligible youth who did not violate U.S. immigration law, but he said the bill offers eligibility to people convicted of misdemeanors such as driving under the influence, burglary and drug possession. Cornyn added that this version of the DREAM Act has weak anti-immigration fraud provisions. #

Durbin countered by saying that the bill is for youth with strong moral standings and that it provides up to five years in prison for immigration fraud. #

The opening statement from Sen. Chuck Schumer, D-N.Y., summarized the three points later echoed by other supporters: #

1. The DREAM Act comports with the rule of law and accountability.
2. The DREAM Act clarifies a distinction between a young person who lives in another country, comes to the U.S. with a student visa and then has a path to citizenship, and a young undocumented immigrant raised and educated in the U.S. who has no such path. “This distinction makes no sense,” Schumer said.
3. The DREAM Act does not give legal status to all young people — only to those who stay out of trouble and obtain a higher degree or serve in the military.

Department of Homeland Security Secretary Janet Napolitano, who testified in favor of the DREAM Act, said passage is the smart thing to do for economic prosperity, military readiness and support for law enforcement efforts. #

Napolitano explained (.pdf) that the Department of Homeland Security has focused on identifying criminal aliens and border security. She said that the DREAM Act supports these priorities because it makes no sense to spend law enforcement dollars on youth who do not pose a public safety or national security threat. #

Referring to a recently issued Immigration and Customs Enforcement memo, Durbin asked Napolitano how Homeland Security would implement measures to make sure DREAM Act-eligible youth are not deported. Napolitano responded that her department is designing a process to identify people caught in the deportation process who are not removable. #

Napolitano responded to Durbin and Cornyn’s questions about people who have been accused or convicted of misdemeanors, saying that an ICE officer has to look at the totality of an applicant’s behavior. She said that the DREAM Act has stricter criteria than the regular naturalization process in how it deals with these cases. #

Dr. Clifford Stanley, undersecretary of defense for personnel and readiness, testified that the Department of Defense strongly supports the DREAM Act, which would expand the pool of quality recruits for the armed forces. #

In his written statement (.pdf) Stanley said that about 2.1 million aliens currently in the U.S. would meet the age and residency requirements of the DREAM Act, but because of the stringent and numerous requirements, a much number would eventually apply and qualify for the DREAM Act’s conditional status. #

Secretary of Education Arne Duncan spoke about the impact the DREAM Act would have on the U.S. economy, saying that without the DREAM Act, a generation will not develop its full potential. He also said that DREAM Act-eligible students would help fill many of the spots the U.S. will need in the science, technology, engineering and mathematics fields.#

Duncan added in his written statement (.pdf) that passage of the DREAM Act supports economic prosperity, pointing to a UCLA study. #

Lt. Colonel Margaret Stock, a retired member of the U.S. Army Reserves and an immigration attorney, quoted the Council on Foreign Relations’ Independent Task Force on U.S. Immigration Policy (co-chaired by former Gov. Jeb Bush) when endorsing the DREAM Act: “The DREAM Act is no amnesty. It offers to young people who had no responsibility for their parents’ initial decision to bring them into the United States the opportunity to earn their way to remain here.” #

The last witness, Dr. Steven Camarota, director of research for the Center for Immigration Studies, said in his statement (.pdf) that the current version of the DREAM Act has several problems. In his testimony, he highlighted four: #

1. Cost: With the two years of college required by the DREAM Act, the rise in undocumented students would increase costs at public schools for taxpayers.
2. Legalizing current undocumented immigrants would encourage more illegal migration. As potential solutions, he suggested strengthening E-Verify, Secure Communities and Section 287(g) immigration-enforcement programs.
3. The DREAM Act is an invitation to fraud. The current version of the bill does not have a clear list of required documents.
4. People convicted of certain misdemeanors would remain eligible for the DREAM Act.

Evan Smith, CEO and editor-in-chief of the Texas Tribune, an Austin-based nonprofit news organization, sat down with Cornyn today and quizzed him on his party’s attack on social programs in general and Planned Parenthood specifically.

When Smith asked Cornyn, chair of the National Republican Senatorial Committee, about Kyl’s inaccurate statistic, Cornyn took the tactic favored by high-profile birthers of asserting a keen desire to “learn more” about a controversial notion, about which there is already abundant evidence. On whether he agreed with Kyl’s initial claim, Cornyn had this to say:

Well, I’m not so sure. Here I am in the middle of the debate and I’m not so sure. I’ve been told that 98 percent of the services they offer to pregnant women are abortion-related services. I’m not sure, but I think we ought to find out.

[...]

I actually went on Planned Parenthood’s website yesterday to try and see if I could get some good info, and I came up empty.

In fact, Planned Parenthood’s most recent annual report (PDF) is freely available on its website and is easily accessed in the site’s “About Us” section. The report includes full disclosures of where Planned Parenthood allocates resources, as well as the exact information Cornyn claimed he couldn’t find, in a handy visual format. The report’s statistics on Planned Parenthood’s activities — and indicating that just 3 percent of what Planned Parenthood does is offer abortion services — were given new life by a pie chart passed around recently by The Washington Post’s Ezra Klein.

Incidentally, Smith’s joke that Planned Parenthood would appreciate getting Cornyn’s IP address may have been a dig at the senator’s 2009 introduction of a bill that would have forced Internet Service Providers to create fixed IP addresses for all users and log their activities. Cornyn claimed the bill was meant to aid in the fight against child sexual abuse, but critics said it would have favored telecoms by doing away with public wireless in restaurants and public buildings, and could have paved the way for selective censoring of online content. Cornyn laughed at the quip anyway.

The only job that remains up in the air for Democrats — chairman of the Democratic Senatorial Campaign Committee (DSCC) — is a result of the fact that no one seems to want to take it. The position, which is appointed by Senate Majority Leader Harry Reid (D-Nev.), has reportedly been turned down already by Sens. Chuck Schumer (D-N.Y.), Mark Warner (D-Va.) and Michael Bennet (D-Colo.), and it’s unclear who will step up to fill the important shoes of going toe-to-toe with National Republican Senatorial Committee leader Sen. John Cornyn (R-Texas) in the battle for the Senate in 2012.

The reason, it seems, is that the position, typically a launching pad to the upper echelons of Democratic leadership, is looking more and more like a sand trap when it comes to 2012. In two years, 21 Democratic senators — along with two independents who caucus with the Democrats — will come up for re-election, compared to only 10 Republicans. Even with President Obama on the ticket, those numbers make the odds of notching a winning record nearly nil, while the potential for a drubbing is much greater.

All of the races listed below could go either way, but it’s worth speculating on where the election could have an effect on immigration policy:

Majority leader: The Senate race between Sen. Harry Reid (D) and Sharron Angle (R) could open up the position of majority leader, which Reid currently holds. It’s unlikely Republicans will take over a majority of the Senate, but losing Reid would put another Democrat in charge of the push for immigration legislation. Luckily for reform supporters, both of the senators likely to take over as majority leader if Reid loses are equally strong supporters of immigration reform as Reid — perhaps even stronger.

Sen. Dick Durbin (D-Ill.), currently second in command, is the chief sponsor of the DREAM Act, which would provide legal residency states to some undocumented students and military service members, and supports comprehensive immigration reform. Sen. Chuck Schumer (D-N.Y.) is considered the favorite to take over as majority leader because of his past success as chairman of the Democratic Senatorial Campaign Committee. He also supports comprehensive immigration reform, and wrote a blueprint for comprehensive immigration reform this spring with Sen. Lindsey Graham (R-S.C.).

Immigration subcommittee: Schumer heads the Judiciary subcommittee on Immigration, Refugees and Border Security, which will remain in the hands of Democrats unless Republicans take over a majority of the Senate. The committee could see some shifting if the current members lose their seats, but most who are up for re-election have comfortable leads. Schumer looks certain to win against Republican challenger Jay Townsend, while Sen. Pat Leahy (D-Vt.) looks like he’ll be safe against Republican candidate Len Britton and his five other challengers. The other Democrats on the committee — Durbin, California Sen. Dianne Feinstein and Rhode Island Sen. Sheldon Whitehouse — aren’t up for re-election this year.

On the Republican side, only Sen. Chuck Grassley (R-Iowa) is up for re-election. He is favored to win over Democratic challenger Roxanne Conlin. The other GOP members of the subcommittee — Texas Sen. John Cornyn, Arizona Sen. Jon Kyl and Alabama Sen. Jeff Sessions — aren’t up for re-election. In the very unlikely event that Republicans win control of the Senate, Cornyn would be the chairman of the subcommittee on immigration.

Other immigration-related races: In the Senate especially, every member’s views on a given issue are important for passing legislation. A few races between pro- and anti-immigration reform candidates could make the difference for passing comprehensive immigration reform or, in lieu of that, smaller-scale legislation such as AgJOBS to create paths to legalization for some farm workers.

Sen. Barbara Boxer (D-Calif.) faces a challenge from Republican Carly Fiorina, who supports the DREAM Act and reform of the guest worker system but argues against “amnesty” for illegal immigrants — the derisive term used by conservatives to refer to efforts to allow some undocumented immigrants already in the United States to earn legal status. Boxer, on the other hand, has been a consistent supporter of comprehensive immigration reform, arguing Congress should pass a bill increasing border security and enforcement efforts while also allowing some illegal immigrants in the country to remain here legally.

In New York, Sen. Kirsten Gillibrand (D-N.Y.), who was appointed to Hillary Clinton’s old seat, is favored to win over Republican Joseph J. DioGuardi. Gillibrand was originally considered an anti-immigrant pick for the Senate seat, but has since shifted to a pro-immigration reform view and advocates legislation that would allow some undocumented immigrants in the country to become legal residents.

Open seats could see the addition of some immigration hardliners. Rand Paul, a Republican running for Senate in Kentucky against Democrat Jack Conway, supports state-led solutions to illegal immigration such as Arizona’s SB 1070 immigration law. He also wants to built an electric fence between the United States and Mexico and move overseas military bases back to the country to man the border. Conway, on the other hand, said he supports more border agents but also paths to legalization. “Let’s take people out of the shadows and turn them into taxpayers,” he said during a debate.

Republican Mark Kirk and Democrat Alexi Giannoulias are facing off for Obama’s former seat in Illinois. If Giannoulias wins, the Democrats will have a nearly sure vote for comprehensive immigration reform as well as the DREAM Act. But Kirk has said that the Senate should tackle border security first, and that he would vote against the DREAM Act and other immigration reform.

The letter claims ICE releases illegal immigrants who have been arrested for sex crimes, domestic violence and driving under the influence. ICE, though, argues it must to something to address the growing backlogs in immigration courts and that it only releases non-criminal and low-level offenders — not including misdemeanor convictions involving DWI, sex crimes or domestic violence — and those with pending applications for legal status. Napolitano and ICE Chief John Morton have claimed the agency focuses on the “worst of the worst” so it can best use its limited resources.

In response, Republicans said the agency should request more money. “[W]e have not seen any efforts by ICE, your Department, or the Administration to request an increase in ICE funding sufficient to address staffing shortages, detention capacity, and coordination of enforcement efforts nationwide to achieve a streamlined and robust immigration removal system,” the senators wrote in the letter. “As a result, it appears that your Department is doing the very thing that we have raised concerns about in several letters – allowing illegal aliens to evade the law.”

The entire controversy points to the difficult balance the Obama administration must try to reach on immigration enforcement. On one side, the administration favors comprehensive immigration reform that would allow many of the 11 million undocumented immigrants already in the country to stay here and become legal residents. This would seemingly point to an immigration enforcement policy that would deport fewer people, particularly among the non-criminal illegal immigrant population. But perhaps due to heavy pressure to seem tough on immigration, the Obama administration increased enforcement to record levels, deporting more non-citizens than Republican predecessors.

The idea, according to some immigrant rights advocates, was for the Obama administration to prove its commitment to immigration enforcement and border security so it could later broker a deal on comprehensive immigration reform with the right. By the looks of the senators’ letter, the GOP is not convinced.

Here’s the full letter:

Dear Secretary Napolitano:

Recently, media reports have revealed that pending removal proceedings are being dismissed in record numbers.  That sharp increase in dismissals is the result of a directive from Immigration and Customs Enforcement (ICE) Director John T. Morton to all ICE attorneys to review pending cases and seek dismissal if the cases do not involve Level I offenders (aliens convicted of aggravated felonies or two or more felonies).  Specifically, ICE attorneys are directed to seek dismissal of cases involving Level II and Level III criminal aliens so long as the aliens have no felony convictions and no more than two misdemeanors.  As we understand it, cases involving aliens with misdemeanors involving domestic violence, sexual crimes, or driving while intoxicated would not be dropped.

Though the reports focused only on cases pending before Houston immigration judges, our understanding is that the ICE directive applies nationwide. Numerous criminal aliens are being released into society and are having proceedings terminated simply because ICE has decided that such cases do not fit within the Department’s chosen enforcement priorities.

The ICE directive, along with other recently announced detention and removal policies, raises serious questions about your Department’s commitment to enforce the immigration laws.  It appears that your Department is enforcing the law based on criteria it arbitrarily chose, with complete disregard for the enforcement laws created by Congress.  The repercussions of this decision extend beyond removal proceedings, because it discourages officers from even initiating new removal proceedings if they believe the case ultimately will be dismissed based on the new directive.

Even more disturbing is the fact that your Department has chosen to dismiss cases against criminal aliens, including aliens who have committed crimes involving moral turpitude, crimes of violence, assault, theft, fraud, drug offenses, driving under the influence, and illegal entry.

To be sure, ICE has cited a lack of resources as one of the reasons for its prioritization of cases and for its selective enforcement.  But to date, we have not seen any efforts by ICE, your Department, or the Administration to request an increase in ICE funding sufficient to address staffing shortages, detention capacity, and coordination of enforcement efforts nationwide to achieve a streamlined and robust immigration removal system.  As a result, it appears that your Department is doing the very thing that we have raised concerns about in several letters – allowing illegal aliens to evade the law while waiting, without much concern about removal, to one day obtain legal status. Though Congress has been slow to reach a comprehensive immigration solution, your Department is charged with enforcing the law as written and it should not be adopting a lax approach to immigration enforcement or selectively enforcing the laws against only those aliens it considers a priority.

We would like a detailed list of the number of cases that have been dismissed since January 2010 to the present.  If the case involved a criminal alien, we also would like you to identify which crimes the aliens were convicted of and in which jurisdiction.  In addition, we want you to detail exactly how much funding your Department would require to ensure that enforcement of the law occurs consistently for every illegal alien encountered and apprehended by ICE or U.S. Customs and Border Protection.  Please respond by November 15^th.

Sincerely,

John Cornyn, United States Senator

Jeff Sessions, United States Senator

Jon Kyl, United States Senator

Orrin Hatch, United States Senator

Chuck Grassley, United States Senator

Lindsey Graham, United States Senator

Tom Coburn, M.D., United States Senator

In early August, an obscure measure called Proposition C — which prohibits the government from mandating the purchase of health insurance — passed overwhelmingly in a Missouri referendum and soon became national news. While seen by many legal scholars as a largely symbolic act of defiance, the new statute will likely lead to yet another legal showdown over the implementation of the Affordable Care Act and was seized upon by conservatives as a sign of growing disillusionment with the president’s agenda.

[Congress1] When the White House tried to downplay the measure as a “vote of no legal significance in the midst of heavy Republican primaries,” Sen. John Cornyn (R-Texas) used the response as further evidence that the Obama administration was out of touch with the American people. “This sheer arrogance and political tone deafness from the Obama White House is simply astounding,” the senator said in a statement. “Their disregard for the votes that were cast by 667,000 Missourians as ‘nothing’ is startling.”

But was Proposition C a spontaneous show of grassroots discontent or a carefully orchestrated political ploy? Clouding the picture is the close involvement of a group called the American Legislative Exchange Council (ALEC), a conservative 501(c)(3) nonprofit that brings together state legislators and representatives of major industries to craft “model legislation,” including an item called the Freedom of Choice in Health Care Act, upon which Proposition C was based. Missouri state Sen. Jane Cunningham, who sponsored the legislation to refer Proposition C to the ballot, serves as an ALEC board member, and state legislatures in Arizona and Oklahoma, which have referred similar bills to the ballot for November, also enjoyed the support of ALEC-affiliated state representatives.

“What ALEC does is they’ll get members to simply announce they’ll introduce the legislation and then claim they have a national grassroots movement of 40 states opposing health care reform,” said Charles Monaco of the Progressive States Network, which works on progressive legislation at the state level. “Industry groups saw early on that the mandate would be the place to hit comprehensive reform because it was one of the least popular aspects of the law to voters, even though it’s one of the provisions that will benefit [industry] the most.”

There are conflicting accounts of how the measure came to be introduced in 38 state legislatures, and enacted in six. One side will tell you that the health care industry — particularly the pharmaceutical companies that sit on ALEC’s Health and Human Services task force — is taking potshots at reform by manipulating state representatives; the other describes grassroots anger bubbling up to the attention of legislators. Both contain a measure of truth. Told together, they provide a window into how groups like ALEC, which are obliged by tax law to work for charitable — not private — purposes, nonetheless exercise influence on behalf of private industry over statehouses across the country.

The story of the Freedom of Choice in Health Care Act starts in Arizona, with a lone doctor who decided he’d look into health care reform “as a hobby” and never imagined his ideas would go so far.

*****

Dr. Eric Novack, an orthopedist from the Phoenix area, claims he was never too interested in politics until a number of state governments turned their attention to reforming the system around the middle of the last decade.

“We need health care reform, but seeing where the winds were blowing I felt we also needed some basic protections for patients and families to ensure that it’s kept out of the hands of politicians, their cronies who can lobby them and these so-called ‘experts,’” Novack said.

In 2006, he teamed up with Dr. Jeffrey Singer, a surgeon and expert at the conservative Goldwater Institute, to craft a state ballot proposition designed to preserve the right of patients to purchase health care directly (which did not appear to be threatened) and to prevent the state from mandating the purchase of health insurance (as then-governor Mitt Romney (R) had just done as part of Massachusetts’ comprehensive reform plan).

“They got the measure on the ballot in 2008,” said state Rep. Nancy Barto (R-Ariz.), who would later reintroduce a reworked version of the proposition in the legislature. “It took them a couple years and a lot of funds and signatures to get it on the ballot. They were outspent by a measure of five to one but still lost by only 8,500 votes.”

It was at this point in late 2008 that ALEC took notice, said Barto, who regularly attends the group’s conferences.

“Their legislation is patterned after our language in 2008,” she explained. “They called and asked about it, took our language and put it on their website as model legislation and saw we were getting real traction and started using it in their state conferences. In 2009, [ALEC HHS Task Force Director Christie] Herrera came and spoke at our Health and Human Services committee meeting in Arizona when we were moving the bill. She came and testified.”

Even before Herrera came and spoke on her bill’s behalf, however, Barto was thrilled when ALEC officially adopted the Arizona proposition as model legislation in December 2008.

*****

When asked about the role representatives of the pharmaceuticals industry, which holds three of the seven seats on ALEC’s HHS task force, played in promoting the bill, Novack insists that it became model legislation, if anything, in spite of their opinion.

“From what I heard it managed to get through because no one paid it any attention,” said Novack. “When people start and work backwards and look at who provides money to ALEC they think it was that the health care industry [that’s behind the model legislation], but it was more an issue of insignificance to them, and if they’d recognized that it’d be sweeping the country, then it’d probably not be sweeping the country. I mean, the major health insurers are the major backers of mandates!”

But since ALEC adopted model legislation for the Freedom of Choice in Health Care Act, the group has played a key role in trumpeting iterations of the bill in various states over the past year. ALEC’s Herrera has offered guidance to lawmakers in more than a dozen state legislatures on the issue. The group brags on its website that “as anti-freedom health policy — such as an individual mandate, an employer mandate, and the ‘public plan’ — surface at the state and national levels, ALEC’s Freedom of Choice in Health Care Act has become an essential tool in securing the rights of patients to make their own health care choices.”

ALEC’s task forces are better known for crafting legislation that coincides, rather than conflicts, with the interests of its private-sector members. Famous for hosting lavish conferences for state legislators who possess no staff of their own, the group pampers lawmakers while providing them the opportunity to collaborate on legislation often previously researched and introduced by the policy shops of its corporate members.

“Their conferences proceed in a very orchestrated manner with legislation that was effectively already designed before [state representatives] get there,” noted Rodger Schlinkeisen, president of Defenders of Wildlife, an environmental group that has differed with ALEC on state legislative priorities in the past. “Representatives are having a good time, playing golf. There’s no heavy lifting on the legislative side so they don’t have to do much. The ALEC staff and industry reps hold their hand and out pops this model legislation with various corporate interests in mind.”

In one case, noted by Mother Jones, ALEC drafted model “truth in sentencing” legislation that restricted parole eligibility, effectively ensuring longer prison terms for inmates. A pivotal member of the task force that crafted the bill’s language? The Corrections Corporation of America, the leader in the private corrections management industry, which stood to benefit directly from longer prison sentences.

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When it comes to the role of the health care industry in crafting the Freedom of Choice in Health Care Act language, however, the outsize presence of the pharmaceuticals industry on the drafting HHS committee is somewhat counterintuitive. The drug companies, represented by the Pharmaceutical Research and Manufacturers of America (PhRMA), are better known of late as the first major private health care interest to enter into an agreement with the Obama administration over comprehensive health care reform, pledging to promote reform in exchange for only a nominal knock to its bottom line and protection on other issues like drug importation and generics.

The Private Sector Executive Committee for ALEC’s HHS task force is staffed entirely by government affairs and state policy representatives for Bayer, Johnson & Johnson and PhRMA, while the Private Enterprise Board of ALEC, as a whole, is also filled with high-ranking representatives of Bayer, GlaxoSmithKleine, Johnson & Johnson and Pfizer, as well as PhRMA, which represents them all.

“The American Legislative Exchange Council is one of many legislative organizations with whom we have relationships, and in no such relationship is it ever expected that we will always agree about every topic,” noted Jeffrey Bond, Senior Vice President of State Government Affairs at PhRMA, in a statement in response to an inquiry regarding the pharmaceutical coalition’s relationship with ALEC’s health care nullification language. (Spokespeople at Johnson & Johnson and Pfizer did not respond to requests for comment.)

Others, however, see in the pharmaceutical industry’s material support for Freedom of Choice in Health Care legislation a subtle realignment of priorities within an industry that was never fully on board with the Obama administration’s reform agenda in the first place.

“Within PhRMA there was division over backing the bill to begin with,” said Paul Blumenthal of the Sunlight Foundation, which tracked the industry group’s deals with the administration during the health care reform debate. “[Then-PhRMA chief] Billy Tauzin and Jeff Kindler at Pfizer were driving the process of backing the bill and the administration, and Tauzin was ultimately driven out of PhRMA as a result. You could be seeing some of that equilibrium shift back.”

Yet apart from a degree of buyer’s remorse, health care consultants note that the drug industry’s schizophrenic actions seem less like a calculated plan than a struggle to reconcile their free-market tendencies with the fact that aspects of reform like the individual mandate stand to improve their bottom line.

“You can look at it as a mass deception by the pharmaceuticals industry,” said Peter Harbage, president of Harbage Consulting, a Sacramento-based health policy consulting firm. “But it’s not so much deception as mass confusion when you think of it from an industry point of view and the nature of something like heath reform.”

“The insurers and PhRMA folks and others — they stand to make a lot of money from coverage, even though ideologically they’re opposed to government regulation,” Harbage added. “What you’re seeing is a real push and pull in which the industry is trying to reconcile their business interests with their ideological interests. You have the large established interest groups like PhRMA tacitly accepting reform but maybe there’s a company that disagrees and might want to play it both ways. Organizations [like ALEC] create an avenue to take their shots without being public about it.”

And even though the pharmaceuticals industry promotes a lot of legislation through ALEC that benefits its bottom line, there can be a price to doing business with conservative groups, according to one industry insider.

“On this kind of thing in some ways it’s a two-way street,” said the industry insider, who declined to be identified because he represents pharmaceutical clients. “The mandate to buy insurance and the tax penalty is good for the industry. This is one place where you wouldn’t necessarily see the industry advocating. But if you’re lying down with conservative members, your funding goes to support what they’re doing as well as what you want to do.”

Indeed, ALEC’s HHS task force lists sixteen pieces of model legislation on its website that tackle issues favorable to the pharmaceutical industry, such as limiting the importation of prescription drugs, reducing drug liability, abolishing price controls on drugs, lowering state taxes on drug samples, and promoting coverage for experimental drugs. When considered from the perspective of the industry’s relationship with ALEC as a whole, one potshot with scant legal prospects against the administration’s individual mandate begins to look like a small price to pay.

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But what seems like a legal non-issue is still providing a lot of political fodder for partisans of comprehensive health care reform, on both sides of the aisle.

The courts will ultimately decide the limits of states’ rights when it comes to the question of the Obama administration’s new health care law, but in the meantime, Republicans are hoping it will energize conservative voters and stave off implementation in Arizona, Oklahoma and Colorado, where similar measures will be on the ballot in November.

“I guess it’s a low investment cost for a group to try to do that,” said Harbage. “You get to automatically have a conversation, and even if it ultimately loses you still had the proposition as a vehicle to motivate voters, and a lot of groups involved might think that’s a good day’s work.”

“Our concern is those individuals who are using illegal immigrants to attack the entire Latino community,” Ben Monterroso of the Mi Familia Vota Civic Engagement Campaign said on a conference call today. “It’s not enough to say you like and respect Latinos if you’re not going to do anything for the community as a whole.”

The organization is working with Latino groups around the country to register and mobilize voters — supposedly a nonpartisan effort, although highly critical of Republican politicians who have spoken out against immigration reform or in support of harsh enforcement. Latino voters support immigration reform in large measures, and Republicans are unlikely to deliver it. The Republican “Pledge to America,” purportedly a breakdown of the party’s legislative priorities, notably glosses over immigration reform in favor of increasing enforcement.

Reform advocates said their mobilization effort will encourage Latino voters to turn out in large numbers to vote for candidates who will enact Latino-friendly legislation.

Another major selling point for Latinos is the DREAM Act, which would allow some undocumented students and members of the military to gain legal status if they entered the country as children. Senate Majority Leader Harry Reid attempted to insert the act into this year’s defense authorization bill, but the bill was filibustered by Republicans. (The bill also contained a repeal of “Don’t Ask, Don’t Tell,” another highly contested measure.)

This was upsetting to Latino voters, who overwhelmingly support the DREAM Act. About 72 percent of Latinos believe the act should have been passed as part of the defense bill, Matt Barreto of Latino Decisions said on the call. Advocacy groups purchased Spanish-language ads last week arguing Republicans do not support the DREAM Act or other immigrants rights legislation.

Republicans have attempted to pin the failure of immigration reform on Democrats — a bold strategy, considering their actions on the DREAM Act and lack of support for comprehensive legislation proposals. Sen. John Cornyn (R-Texas) criticized Obama last week for not making immigration a priority.