Are There Enough Votes in the Senate to Include LGBT Families in Comprehensive Immigration Reform?

By Tom K. Wong, tomkwong@ucsd.edu, @twong002

Conclusion: Yes, there is enough support for LGBT inclusion in family reunification in the Senate. Will the inclusion of LGBT families as part of comprehensive immigration reform kill the chances of getting a bill passed in the Senate? This analysis suggests, no. However, the House is the sticking point.

As we comb through the 844-page immigration reform bill released late Tuesday night, one omission has already drawn the attention of several immigrant-rights organizations: the absence of language including LGBT couples in the family-based immigration system.

Under current immigration laws, U.S. citizens and legal permanent residents can sponsor their spouses for immigration purposes. However, because same-sex partners are not considered spouses they are excluded from family-based immigration. This adversely affects over 36,000 families, 46% of which are estimated to be raising children.

Over the past decade, legislation has been introduced and reintroduced – e.g., Uniting American Families Act (UAFA) and Reuniting Families Act (RFA) – in Congress to include “permanent partner” and “permanent partnership” in the language of family reunification (this does not redefine marriage). Whereas these previous efforts have not succeeded, the current debate over comprehensive immigration reform (CIR) provides an occasion to renew this push for greater inclusiveness in U.S. immigration policies. The question that seems to be carrying the day thus far, however, is whether infusing the contentious immigration debate with an equally if not more contentious issue could potentially kill the chances of getting immigration reform. This analysis examines this question.

Will the inclusion of LGBT families as part of comprehensive immigration reform kill the chances of getting a bill passed in the Senate? This analysis suggests, no.

While there are no precedent votes on either the UAFA or the RFA, the legislative history of these bills provides important information from which it is possible to glean information about potential support among legislators. Specifically, these bills have garnered dozens of sponsors and co-sponsors over the past decade, most of who are still in Congress. The 2012 debate over the reauthorization of the Violence Against Women Act (VAWA) also saw the introduction of an amendment (the Hutchison amendment) that would have removed key provisions prohibiting discrimination against the victims of domestic violence on the basis of their sexual orientation or gender identity. The vote on this amendment, coupled with the broader immigration-related aspects of VAWA, combine to provide insight about how legislators are likely to vote when the issues of immigration and LGBT rights intersect. Congressional scorecards on LGBT rights from the Human Rights Campaign (HRC) add an additional layer of important information to consider.

Identifying Support and Opposition to LGBT Inclusion

All Senators who have sponsored/co-sponsored the UAFA or are ranked at the top of the HRC scorecard are classified as being “solid yes” votes should it come up as an amendment to CIR. Senators who have not sponsored/co-sponsored the UAFA, but who voted against the Hutchison amendment and ranked well above the average Senator in the HRC scorecard are also classified as “solid yes” votes. A “lean yes” classification is constructed for Senators whose records are less clear. Senators who voted against the Hutchison amendment, but are ranked around the middle of the HRC scorecard, are classified as “lean yes.” Senators who do not have a legislative track record and and do not have a Congressional scorecard ranking (e.g., new Senators that did not previously serve in the House), but have otherwise indicated support for LGBT rights (e.g., marriage equality, repeal of “don’t ask, don’t tell,” etc.) are also classified as “lean yes.”

All Senators who have not sponsored/co-sponsored the UAFA, who voted for the Hutchison amendment, and are ranked at or near the bottom in the HRC scorecard, are classified as “solid no” votes. Senators who do not have a legislative track record and do not have a Congressional scorecard ranking, but have otherwise indicated opposition to LGBT rights, are classified as “lean no.”

Unlike the other analyses in this series, I do not use a statistical model here. A statistical model in the absence of theoretically informed priors relating specifically to the intersection between immigration and LGBT rights (indeed, a fruitful avenue for future research) is akin to data mining in the dark. With this in mind, the classification of Senators into the categories described above, particularly with respect to the “lean yes” or “lean no” categories, should be viewed as a heuristic and be combined with the on the ground realities and developments that unfold in real time (e.g., Republican Senator Rob Portman of Ohio recently announcing his support for marriage equality).

Senate Prediction

Not only does it appear that LGBT inclusion in family reunification would pass as an amendment to CIR, but a filibuster-proof vote on final passage of CIR also seems to still be within reach. Full list here.

  • There are 62 Senators who are likely to support LGBT inclusion and 38 who are likely to oppose.
  • Supporting LGBT inclusion: there are 50 Senators who are “solid yes” votes and 12 more who “lean yes.”
  • Opposition to LGBT inclusion: there are 35 Senators who are “solid no” votes and 3 more who “lean no.”

Will LGBT Inclusion Kill CIR?

Combining the above predictions with the general analysis of support and opposition to CIR (see previous analysis) allows us to evaluate whether the inclusion of LGBT families as part of comprehensive immigration reform will kill the chances of getting a bill passed in the Senate.

59 Senators who are likely to support LGBT inclusion are also likely to support passage of CIR. If we assume that those who would have supported CIR actually vote no because of LGBT inclusion, then 59 votes is 1 vote shy of a filibuster-proof vote. This may be alarm enough for some to delink immigration reform with LGBT rights. However, there are additional points to consider. First, these 59 Senators do not include 3 members of the Senate “gang of 8.” While Jeff Flake (0 HRC score while in the House), John McCain (15 HRC score), and Lindsey Graham (15 HRC score) are not expected to support LGBT inclusion, if the UAFA or something like it is approved as an amendment to CIR, it is unlikely that these 3 Senators will vote no when it comes to passage of the overall bill. That is, assuming that they are not willing to “cut off their nose to spite their face.” Moreover, in looking at the 62 Senators who are likely support LGBT inclusion, there are 3 who were previously predicted to oppose CIR. One of these is Republican Senator Rand Paul of Kentucky. Events in real time have already witnessed Senator Paul come out (however tepid) in support of immigration reform. Adding Senator Paul to the 3 members of the “gang of 8” pushes support back above 60.

To be clear, this is playing with political fire, especially given the highly charged nature of these issues and the necessity of a filibuster-proof vote to get to final passage of CIR. This path should thus be tread carefully. Based on the above assessment, the inclusion of LGBT families in immigration reform means an estimate of about 63 votes, which is down from an estimate of 67 votes on a bill that does not include LGBT inclusion. But while this may mean less overall support, it does not necessarily kill the chances of CIR in 2013.

The sticking point, however, is the House, which will be the subject of a later post.

Research support provided by the Asian Pacifican American Legal Center (APALC). Thanks to Cat Benson and Brana Vlasic for their excellent research assistance.