Immigration Reform: The Art of the Possible

Representative Lamar Smith

What does it take to be an effective legislator in an increasingly partisan Congress?

Yesterday, Representative Lamar Smith (R-TX) described for attendees at the annual Forum on Science and Technology Policy sponsored by AAAS (publisher of ScienceInsider) how he was able to use the art of political compromise to update U.S. patent laws. But so far he's been unwilling to apply the same principle to strengthen another pillar of U.S. innovation, namely, revising immigration laws to retain more highly skilled foreign scientists and engineers.

Smith said the secret to his successful 7-year effort to pass the America Invents Act (PL 112-29) was an ability to cross party lines and reconcile the demands of competing constituencies. "Passing legislation requires patience and persistence," explained Smith, who was first elected to Congress in 1986. "While some people compare the legislative process to making sausage, I'd rather compare it to a loaf of bread. Sometimes half a loaf is better than none, and even a slice beats going hungry." Returning to that metaphor during a question-and-answer session, Smith added, "and sometimes you have to settle for just a few crumbs." Those legislative skills earned him and patent reform co-sponsor Senator Patrick Leahy (D-VT) the title of 2011 technology policymakers of the year from Politico.

However, Smith so far has chosen not to take that same approach on immigration—at least in public. In fact, he's used his clout as chair of the House Judiciary Committee to stymie proposals from Republicans as well as Democrats that would allow more foreign-born students with U.S. graduate degrees in science and engineering, as well as foreign high-tech entrepreneurs who create jobs for U.S. citizens, to receive so-called green cards that would allow them to stay indefinitely.

Advocates say the changes would improve U.S. competitiveness by retaining science-savvy immigrants, rather than forcing them to return home, where they would apply their knowledge to compete against U.S. companies. Over time, those arguments have won over prominent politicians from both parties, including from President Barack Obama, who has talked about "stapling a green card to the diplomas" of such students.

To date, however, all efforts to tweak legal immigration have been derailed by foes of illegal immigration, who have tarred both issues with the same brush. In addition, some policymakers worry that opening the door wider would lead to abuses and would take away science and engineering jobs from U.S. citizens. There is also a debate about whether the changes should be limited to doctoral recipients or include those earning master's degrees, a much larger pool, and which institutions should be eligible.

Smith didn't mention immigration reform during his brief talk on science and technology in the current Congress, and it wasn't raised by the audience. But afterwards, in a brief interview with ScienceInsider, he sent mixed messages about his intentions. He said that reform is on the table, but that he still has serious reservations about how to proceed.

"I'm in favor of doing something, and I hope that we can move a bill, either from Mr. [Representative Tim] Griffin [R-AR] or another member," Smith said. "I think that it makes a lot of sense to include Ph.D.s—and maybe some with master's degrees. But I don't want it to get out of hand by, say, letting in everybody who earns a graduate degree from the University of Phoenix."

At the same time, Smith believes that the general public opposes such reforms. He cited what he said was a recent poll showing that "Americans are against the idea by a margin of two to one." (In January, Gallup released a poll showing that 64% of respondents are "dissatisfied … with the current level of immigration" and that only 28% are "satisfied.") Smith said that "high unemployment" was the reason for their displeasure, adding that "there's also opposition in the Senate" to any major reform.

So what's the next step? An aide on the committee said yesterday that "Chairman Smith believes it is premature to discuss [the details of any bill] since we don't have language yet."

At the same time, an article this week in National Journal paints an optimistic picture. Beginning with a headline that asks, "The Making of an Immigration Deal?" the article describes how Representative Zoe Lofgren (D-CA), who last June introduced HR 2161, "has under lock and key the draft of a broad compromise immigration bill agreed to in secret by Republican and Democratic negotiators in the last Congress." And it quotes Lofgren as saying "it was a consensus product that would have worked and still could work."

As he explained at the AAAS forum, Smith knows how to strike a deal when he wants to. He even cited the famous definition of politics, by German Chancellor Otto von Bismarck, as "the art of the possible." Which raises the tantalizing questions: Was Smith signaling his intention to pursue that route on immigration? Or was he just giving his audience a civics lesson?