The Demise of “Sanctuary Cities” Legislation: A GOP Debacle or Success?

The Texas Legislature did not pass legislation to ban and prevent the existence of “sanctuary cities”  for undocumented immigrants in Texas during the May-June special session which ended yesterday, just as it did not pass the legislation during the January-May regular session. It is of course conceivable (albeit rather unlikely) that Governor Rick Perry will call a second special session later this summer and place “sanctuary cities” legislation on the agenda. For now though, the legislation is moribund, which begs the question: Did the Texas Republican Party leadership (principally Governor Rick Perry, Lieutenant Governor David Dewhurst and House Speaker Joe Straus) repeatedly fumble the ball in its drive to pass “sanctuary cities” legislation? Or, instead, was the legislation’s failure, in the end, the leadership’s collective desired outcome?

In 2010, Governor Perry was re-elected in a landslide. At the same time, the Republican electoral tsunami swept into office an unprecedented number of Republican state representatives, with a record 101 House Republicans (and only 49 Democrats) assuming office in January of 2011. In the Senate, the Republican Party maintained its substantial 19-to-12 advantage.

At the start of the legislative session in January, the Texas Republican Party leadership had three broad options regarding state-level immigration reform. The first was to do nothing based on the belief that either state-level immigration reform legislation was not in their — or the state’s — best interest or that, because immigration is a federal responsibility, all reform efforts should take place in D.C., not Austin. The second was to follow the Arizona model and pass wide-scale, state-level reform designed to root out and arrest undocumented immigrants, crack down on businesses that employ undocumented immigrants, reduce undocumented immigrant use of social services by imposing citizenship verification requirements, and, in general, make undocumented immigrants and their families (many of whom are U.S. citizens or legal residents) feel unwelcome and unsafe in the state — thereby encouraging them to leave/never come in the first place. This is, for example, the path followed by Alabama and Georgia, which each passed legislation in line with the Arizona model earlier this year.

Presented with these two options, Governor Perry chose neither, opting for a third approach — that of a narrow focus on the largely symbolic issue of “sanctuary cities” which he declared to be one of six “emergency” items in January.  The goal was to satisfy the Republican base by prioritizing immigration reform legislation while at the same time blocking efforts to implement more controversial Arizona-style legislation, which Perry does not consider to be appropriate for Texas (or, one can assume, for the United States more generally). This strategy was quite effective, with very limited public discussion of Arizona-style legislation during the legislative session and with conservative activists expending their energy trying to get the comparatively innocuous “sanctuary cities” legislation passed rather than the more draconian legislation their peers in Alabama and Georgia were working on.

By early March, the prospects for any Arizona-style legislation even being debated in committee had faded, and the Republican leadership focused on the “sanctuary cities” legislation (House Bill 12) which, while primarily symbolic, still caused serious rifts within the party. Supporters of the legislation included a large majority of Republican senators and representatives who, due either to ideological conviction and/or pragmatic concern regarding potential reprisals from conservative activists and Republican primary voters, at least publicly favored the bill’s passage.

Arrayed against the bill within the Republican Party were two principal groups. The first were those in the Republican establishment (elected officials, consultants, donors) who believed the passage of “sanctuary cities” legislation would have a negative electoral impact on Republican candidates in the state via a reduction in the proportion of Hispanics who vote Republican combined with an increase in Hispanic voter turnout. In 2008 and 2010, Texas GOP presidential, gubernatorial, and senate candidates received an average of 36% of the Hispanic vote, a noticeable contrast to California where similar Republican candidates averaged only 28% of the Hispanic vote. In 2008, only 38% of eligible Hispanics voted in Texas, compared to 65% of Anglos and African Americans.  Once again, the contrast with California is noteworthy, with 57% of eligible Hispanics casting a ballot in the Golden State, and the gap between Hispanics and Anglos (69%) and African Americans (65%) much narrower than in the Lone Star State.

The second group was business leaders (who, of course, also tend to fall into the donor category above) who opposed the legislation for two principal reasons. First, passage of the legislation (viewed by many as discriminatory and anti-Hispanic) would have a negative impact on the state’s national and international image and, thereby, an adverse effect on investment, corporate re-location and tourism.  Second, passage of the legislation would cause some undocumented immigrants and their family members to leave the state, as well as lead some future migrants to avoid Texas — thereby slightly reducing the supply of available labor for the agricultural, construction, and service industries.

From the perspective of a majority of the Republican opponents of this legislation, HB 12 died in ideal fashion at the end of the regular session in late May, when 12 Democrats utilizing a senate rule, which required a two-thirds vote to suspend the regular order of business in order to consider other bills, blocked the legislation which had been unanimously supported by all GOP senators and representatives. Republicans could claim that they did everything possible to pass the legislation (with roll call votes to prove it), only to be foiled by Democrats taking unfair advantage of an arcane rule to stymie the will of the majority.

Had Democratic Senator Wendy Davis not filibustered during the regular session’s final days, blocking necessary budgetary, education and health legislation and thereby causing an expansive special session, it is quite possible that would have been the end of the “sanctuary cities” legislation. However, as Governor Perry had prioritized “sanctuary cities” legislation as an emergency item in January and publicly declared his support for it, there was no way he could avoid putting it on the special session agenda once that agenda moved beyond a narrow legislative scope (i.e., beyond Texas Windstorm Insurance Agency reform and/or congressional redistricting).

The “sanctuary cities” legislation re-emerged during the special session as House Bill 9 and its companion Senate Bill 9 (SB 9 also contained additional components related to the closing of some minor loopholes related to the use of the federal Secure Communities program in the state and to the issuance of driver’s licenses).  After quickly being debated and approved in the Senate along party-lines (the two-thirds rule was not in force for the special session), SB 9 arrived in the House State Affairs Committee on June 16 with a committee hearing first held on June 20. After that date, SB 9 (and HB 9) remained pending in committee (with one committee hearing after another cancelled at the last minute) as the clock ticked down on the special session. By keeping the bill bottled up in committee until the session ended, SB 9’s near certain passage on the floor and subsequent transformation into law was avoided.

To recap, every one of the 19 Republican senators is on record as supporting “sanctuary cities” legislation — as is every one of the 101 Republican House members.  Furthermore, Governor Perry and Lieutenant Governor Dewhurst both made “sanctuary cities” legislation a priority, with Perry declaring it an emergency item in January, as well as placing it on the special session agenda, and Dewhurst requesting that Perry include it on the special session agenda.

Recall also that during the regular session, the “sanctuary cities” legislation was approved by the House on a 100-to-47 party-line vote, only to be blocked by Democrats in the Senate on a 12-to-19 party-line vote. But during the special session, essentially the same legislation was approved by the Senate on a 19-to-12 party-line vote (the two-thirds rule was not in force during the special session) — only to fail to make it out of the House State Affairs committee, the same committee which in early May had heartily endorsed it on a 9-to-3 party-line vote.

After one regular session and one special session, no “sanctuary cities” legislation has passed (in contrast to a great deal of other controversial items on topics ranging from education spending to abortion and voter identification). There are several optics from which to view this reality.

One is that the Texas Republican Party leadership is inept and/or feckless and this failure is the result of a combination of a variety of factors including Republican legislators being bested by their Democratic colleagues in legislative procedural battles, Republican legislators caving under the weight of the last minute public intervention of a few influential Republican donors, the inability of Republican legislative leaders to conduct business in an efficient and timely manner due to the absence or distraction of their party’s “exhausted” legislators, and, most recently, the obstinate behavior of a single Republican senator.

Another, very distinct, view is that after a cost-benefit analysis of the alternatives, the demise of the “sanctuary cities” legislation was the Republican leadership’s collective preferred outcome.

Mark P. Jones is the James A. Baker III Institute for Public Policy’s Fellow in Political Science as well as the Joseph D. Jamail Chair in Latin American Studies and Chair of the Department of Political Science at Rice University.

This material may be quoted or reproduced without prior permission, provided appropriate credit is given to the author and Rice University’s Baker Institute for Public Policy. The views expressed herein are those of the individual author(s), and do not necessarily represent the views of Rice University’s Baker Institute for Public Policy.