Ted Kennedy

Mr. KENNEDY

Mr. KENNEDY. We are not prepared. We thought we were moving ahead with the Kyl amendment. Now we are on the Chambliss amendment. It involves a number of individuals here who feel very strongly. We are just trying to find out the amount of time they would need. Hopefully, we are going to be having two votes now, and by the end of those votes we will have more information.

Mr. KENNEDY. I ask for the yeas and nays.

Mr. KENNEDY. Would the Senator from Pennsylvania outline what the rest of the evening is going to be?

Mr. KENNEDY. That is fine, an hour evenly divided.

Mr. KENNEDY. Mr. President, how much time do we have?

Mr. KENNEDY. Mr. President, I will take 11 minutes and yield the remaining time to the Senator from Nebraska. The hour is late. We have had a very good debate over the course of the day. Now we are faced with an amendment that, even though it comes at the late hours of the day, is very basic and fundamental to the success of the whole piece of legislation. Just as important or even more important is the spirit of this particular amendment and what it is meant to achieve and what it is not meant to achieve. Under the current immigration law, if you have a H-1B, that means you have a visa and you are highly skilled. The concept behind the H-1B is you are highly skilled, and because you are able to have a particular niche, the result of your service means you are going to have 8 or 10 or 15 more Americans working. So there is a limited number of the H- 1Bs. Under our current law, if your employer wants to petition for you, you can get a green card. If you are highly skilled, your employer can get the green card for you. But under the Cornyn amendment, if you are low skilled, you are out the window. One set of treatment for the very highly educated, highly skilled, who are working on the computers. But if you are cleaning a building in America, if you are working in menial jobs, if you are looking after children, if you have one of the lower paid jobs, you are out of luck. Really a nice, fair standard. The Statue of Liberty is turned around tonight, listening to the argument of our friends over here. It is turned around. One standard for high skilled, and, boy, if you are doing the more menial work, which we know other Americans are not prepared to do, you are out. You are finished. You are gone. No chance at all. Work for 6 years and then maybe they will go out and leave the country or maybe they will stay. If they stay, they will be part of a subclass. Do you hear me? A subclass in the United States of America. That is what we are trying to avoid in the basic immigration bill. We emphasize legality: legality in coming in as guest workers, the legal system; legality in terms of employment; you can only employ those who come in where there is not an American for the job. But there is also opportunity. We respect those individuals who do menial jobs because after the 4 years that they are here, if there is not going to be an American to do the job, they can petition, and if they meet all the other requirements--they learn English, they obey the laws--they can be part of the American dream. Boy, if the Cornyn amendment applied to our immigration laws 150 years ago, no Irish needed apply, no Polish needed apply, no Italians needed apply, no Jews needed apply. But tonight we are saying no Hispanics, primarily, need apply because those are the ones--sure, it is 85 percent, the rest 5 percent or 6 percent Asian, the rest from Central America. But that is what the Senate tonight is confronted with. This undermines the whole purpose of the bill. It brings in illegality again. It says your employer hires this person, they work for 6 years, the employer might have trained him, given him decent skills and, bang, you are either part of the subclass or you are reporting to deport. Those were wonderful words--report to deport. We will know who those individuals are--Homeland Security. As soon as that time is up, six times, they will get picked up and either pushed over and pushed out of the country or they will be in a permanent underclass. This is probably a very nice amendment that goes over in some circles. But I tell you, if we are talking about fairness in this country, if you are talking about fairness in the immigration bill, you are talking about fairness in the standards, you are talking about the history and the tradition of this country about welcoming the poor and the unwashed in our country, you are changing that with the Cornyn amendment. Make no mistake about it. You are changing that. I was around during the Bracero period, and the exploitation of humanity was extraordinary. We are returning to it if we accept the Cornyn amendment. We are saying: Because you do more menial jobs, your life, your worth, your being is not worth as much as somebody who is a highly skilled person. That is a wonderful statement for the United States of America to make. You know what is going to happen? Those individuals are going to be exploited. If they are women, they are going to be abused. You are going to have sexual harassment and abuse for them. That is the record. Read the history of the Braceros. I went to the hearings. I attended the hearings all through the Southwest and into California; one of the most shameful periods in American history. We go back to it tonight with this amendment. That is what this amendment is all about. That is what this amendment is all about. It strikes a dagger at the heart of what this legislation is about: strict enforcement, strict accountability, strict legality if people are going to play by the rules and earn their way to be a part of the American dream. I withhold the reminder of my time.

Mr. KENNEDY. Mr. President, I wish to thank the leaders and my colleague, Senator Specter. I think this has been a very good week in terms of talking and debating. I think we have seen some real debates on the floor of the Senate, some which we have not seen for a long period of time. I think the Members know a great deal more about what is in this legislation. They may like it or not, but I think the debate will be even better next week. I think we have made good progress. Sometimes it is useful to take a little time to go over these amendments, as someone who has been here for 12 hours. Sometimes we can have a better debate and discussion if we can go over them and know where we are going to be on Monday and then what the priorities are. The Republicans have had, as I remember, 20 sort of key issues. We have gotten through a fair amount of them. There is still a good group of those. I think they have laid out the issues, and I think we can use this time and be better prepared and have a better debate and a better outcome next week. I thank the leaders for all they have done, and I thank the Members on both sides.

Mr. KENNEDY

Mr. KENNEDY. Mr. President, I yield such time as the Senator from Arizona may need.

Mr. KENNEDY. Mr. President, I yield such time as the Senator from South Carolina needs.

Mr. KENNEDY. Mr. President, I yield 3 minutes to the Senator from Illinois.

Mr. KENNEDY. I yield myself 5 minutes.

Mr. KENNEDY. Mr. President, would the Senator from Texas yield me a couple of minutes on his time?

Mr. KENNEDY. I thank the Senator. Mr. President, just so the membership has a good understanding of where we are, I will summarize this provision. I thank Senator Cornyn and Senator Kyl for working with us, and Senator Graham and Senator McCain for their great help and assistance, and my wonderful assistant, Esther, for all of her good work. Senator Durbin has illustrated the human terms which are involved in this issue as well. Let me very quickly point out what the language provides. People should understand now what the sense of this whole proposal is about. We want to keep those who can harm us, the criminal element, out of the United States or for the consideration of being able to adjust status and be able to continue to work and live here. Those who can benefit the United States ought to be able to remain. This is what we were attempting to do with this particular language. That is more complicated than it might seem. Effectively, the Kyl-Cornyn amendment would make the various classes of aliens ineligible for the earned legalization program: Any person who is issued a removal order, failed to deport, or deported and subsequently returned; any person who was ordered to leave the country under the visa waiver program is subject to expedited removal; any person who fails to depart under a voluntary departure agreement; any person convicted of a serious crime inside or outside the United States; any person who has been convicted of a felony, or three misdemeanors. That is the operative aspect of the amendment. The compromise reached yesterday strengthens the waiver so that aliens under the final orders of removal will still be eligible for earned legalization if they did not receive a notice of their immigration hearing, obviously, through no fault of their own--we know what the agency itself has missed, as the GAO report indicated--or it is established they failed to appear at their hearing because of exceptional circumstances, which are certainly understandable; or, three, that they can establish extreme hardship to their spouse or child or parent who was a U.S. citizen or a lawful permanent resident. Senator Durbin gave the excellent examples of that provision. Those are the kinds of examples we are all familiar with in the Senate. The waivers are available to immigrants who entered without inspection or those who fell out of status or who used false documents but not to criminal aliens or aggregated felons. We believe the waiver will cover many of the current undocumented who otherwise would be excluded under the original Kyl-Cornyn amendment. We believe it is important progress. It is not the way, certainly, some Members would have drafted this proposal, but we understand the concerns that have been expressed by the proponents. We believe this is language which will for all intents and purposes treat individuals fairly, welcome those who should be welcome and exclude those who should be excluded.

Mr. KENNEDY. We yield back the balance.

Mr. KENNEDY. We have before us now an amendment in terms of building some 350 miles of additional fence. It is going to be a triple fence. The best estimates--the Senate, I am sure, will hear from the Senator from Alabama--but the best estimates we have been able to see is approximately $4 billion. I am just listening to the Senator talk about allocating resources to renew technology between border guards, between helicopters, unmanned aerial vehicles, other infrastructure improvements, and the pressure that we are under in terms of the appropriations. Having listened to the Senator from New Hampshire, and listened to how he had to allocate $1.9 billion, is he prepared to make any comment if we add another authorization for another $4 billion or $5 billion on fencing, where that money would be available?

Mr. KENNEDY. Will the Senator be good enough to yield for a question?

Mr. KENNEDY. Madam President, I have not yielded back my time. I may yield back my time. I will have to get a short quorum call if we are going to ask consent on establishing--unless our leaders have agreed to have the series, I would have a short quorum call until we can clear that.

Mr. KENNEDY. Mr. President, I thank the Senator from Nebraska for his excellent presentation. He laid out as effectively as one could the reasons against this amendment. Effectively, the Vitter amendment undermines the whole concept of a comprehensive immigration bill. But having said that, it is not a constructive or positive solution to the challenges we are facing with the 11 million or 12 million undocumented individuals who are here at the present time. First of all, our bill says if you are going to be able to earn citizenship, you have to pay a penalty. So you have to pay the penalty. You have to be continuously employed. You have to meet a security background check. You must learn English. You must learn U.S. History. You must pay all back taxes, and then you get in the back of the line of all of the applicants waiting for green cards. Effectively, it takes 11 years for them to be able to earn citizenship. That is the earned legalization program. For those who say this is 1986, they are either distorting the record or haven't read it clearly. This is what we are talking about for those 11 million or 12 million people: They have to earn it--the end of the line, pay the penalty, work hard. We have seen some of them join the Armed Forces of our country. That is the earned legalization. What is Senator Vitter's answer? Do you know what is going to happen? You are going to have the 11 million or 12 million individuals continue to be exploited in the workplace. You are going to drive down the wages and, therefore, undermine working conditions for Americans. They are going to be exploited. They are going to be threatened in the workplace: If you do not do this job that I am asking you to do, I am going to call the immigration service and have you deported. They are threatened. That is happening every single day all across this country to these individuals. Third, if you are a woman you are going to suffer exploitation, you are going to suffer abuse, and you are going to suffer sexual harassment. That is the record. Those are the things that are happening, and at the end of the day you are going to have a two-tiered society. That is something that we, as Americans, have avoided. We take pride that we are a singular society and we struggle to create equality for all the people of our society. If you accept the Vitter amendment, you are going to have a two- tiered society; that is, a permanent underclass. That is the United States of America. That is going to be the result if we are going to follow the recommendations. There is even the suggestion it was going to be for deportation. We have heard different approaches to these 12 million. Our friends in the House of Representatives have effectively wanted to criminalize every 1 of these 12 million. We are going to criminalize them and stain them for the rest of their lives. We have rejected that. We have, on the one hand, people prepared to play by the rules. By and large, these are the people who are devoted to their families, who want to work hard, who want to play by the rules. There are 70,000 permanent residents now serving in the Armed Forces in Iraq and Afghanistan and around the world, willing to do so. Many of them have died in Iraq and Afghanistan. They are prepared to do so. They want to be part of the American dream, as our forebears from other nationalities have been part of the American dream. They want to participate. We are saying to them, that is the choice: a permanent subclass, permanent underclass, permanent exploitation of 11 million or 12 million, or have them earn their way, go to the back of the line, show they are going to be good citizens, learn English, pay their back taxes, and demonstrate they are committed to the American dream. That is the choice we have made. That is the choice which is clearly in the interest of our country. That would be altered and changed and dramatically undermined with the Vitter amendment. I hope it is not accepted. I withhold whatever time remains.

Mr. KENNEDY. I am glad, when we get to the Vitter amendment, to go for 45 minutes, but I think it is our turn after disposing of the Cornyn amendment. Senator Lieberman has an amendment, the Lieberman- Brownback amendment. We can agree to a short time limit on that. We would want to go back and forth.

Mr. KENNEDY. I suggest an hour. I think we can get it done in 45.

Mr. KENNEDY. Mr. President, I have no objection. I think for the time being we have an order now for the next three. I have no objection to going at sometime to Ensign. I expect that would be the regular order. But for all intents and purposes, we agree to the three outlined here. I can understand they will probably follow along, but for all intents and purposes, we agree to the three.

Mr. KENNEDY. The Kennedy amendment you are talking about putting up now, would that be considered next after this vote takes place on the Cornyn amendment?

Mr. KENNEDY. I move to lay that motion on the table. The motion to lay on the table was agreed to.

Mr. KENNEDY. Madam President, I want to bring some relevant and important facts to the debate. As we have pointed out, we are for security of the border. We have outlined, in my earlier comments, the provisions in this legislation which would help to achieve that. I want to point out some of the history of the building of a fence and the cost of the building of a fence. When the first fence was going to be built, Congressman Hunter, the House's largest proponent of fencing, originally estimated the cost of completing the 14 miles of fencing in San Diego at $14 million, the same as the current estimate, I believe, of the Senator from Alabama. Fencing was completed over 11 miles, and the cost was more than 200 percent over budget, costing $42 million. The real cost of construction ended up being more than $3.8 million per mile. At that rate, a complete fence across the U.S.-Mexican border would cost $7.6 billion. As was referenced, the House of Representatives position calls for a 700-mile fence. Congressman Hunter boasts of securing an additional $35 million for the last 3 miles of fencing in San Diego, approximately $12 million per mile. These costs are significantly higher because of difficult terrain. Much of the U.S. border with Mexico crosses mountain terrain such as these 3 miles, potentially driving up the cost of borderwide security. Let's look at what happened in terms of people. Currently, there are 70 miles of fencing along the U.S.- Mexican border, including 40 miles in California and 25 in Arizona. Partial fencing of the U.S.-Mexican border shifted migrant traffic from one area to the other. The apprehensions dropped in San Diego from a high of 450,000 in 1994, when fencing construction began, to a low of 136,000 in 2005, a reduction of 70 percent. Over the same period, the apprehensions in the Tucson sector, covering most of Arizona, rose from 137,000 in 1994 to 489,000, almost an exact shift in migrant traffic from San Diego to Arizona. So the number of apprehensions along the U.S. border from 1994 to 2005 has barely fluctuated, ranging from 900,000 to well over a million per year. What the facts show is that having large-scale fences has been grossly inadequate, if we are talking about security. We need to have real, effective security, as we discussed earlier, the virtual fence, using the latest in technology, and also enforcement of laws in the workplace which will discourage people from coming and which those who have studied this believe to be the most effective. We are talking about a cost of billions of dollars for something that has not been shown to be effective in achieving an outcome. There are ways of securing the border, but this is not the way to do so, for the reasons I outlined earlier and the reasons I cited at this time. We have evaluations of fencing in our legislation. We ought to find out what is the most effective way, whether we use the virtual fence, the newer technologies, what is having the best and most positive result, and invest in that. That is what we ought to do. What we are doing this afternoon is a good-feeling vote, in terms of trying to give some assurances to the American people, which history has shown is highly costly, and in terms of the amount of resources we are likely to expend has not been effective. For the reason of raising the kinds of conflicts that we are going to have with our neighbors to the south rather than working with them effectively, there are better and more effective ways of securing the border. I hope this amendment will be defeated. As I understand it, there is a desire to vote at 2:30. I think I have used about all my time. I would be glad to yield back the time, maybe move on to another amendment.

Mr. KENNEDY. I move to reconsider the vote, and I move to lay that motion on the table. The motion to lay on the table was agreed to.