Why the H-2B Provision Is So Problematic

Everyone--well, almost everyone--understands that the power of any majority in Congress is limited.  Even if a majority wants to get something done, it might not be able to accomplish that due to our system of checks and balances.  Thus, one can understand why Republicans might relent on defunding a program that is one of the President Obama's top priorities because defunding that program might lead to a round of budgetary brinkmanship.

But the omnibus's quadrupling of the H-2B visa program is not because of limits on Congressional Republicans' power--it's a policy that they have used their power to realize.  It's not like Barack Obama would have vetoed the omnibus had it not included the H-2B expansion.  Congressional Democrats would not have shut down the omnibus over a lack of H-2Bs.  No, as Conn Carroll, Mike Lee's communications director, put it, the H-2B expansion is a "'Republican' ask."  Republican leadership chose to make expanding the H-2B a priority--when they did not make priorities out of reforms to refugee programs, funding of the border fence, or cracking down on "sanctuary" cities.

From a Republican point of view, expanding the H-2B program makes little political sense. Republicans face a grassroots rebellion, and they also need to do more to reach out to the economic middle.  The H-2B expansion inflames this rebellion, and it further undermines the working class; it also runs contrary to the principles of the free market.  Embracing a pro-opportunity conservatism seems a better route to a majority coalition than being the party of K Street.

H-2Bs: But wait--there's more!

One of the many significant legislative items tucked into the 2009-page omnibus bill is an expansion of H-2B visa program, which purports to supply temporary, seasonal labor.  Ian Smith notes some of the shortcomings of this proposal and of the potential for abuse within the H-2B program.

The H-2B proposal that's gotten the most headlines so far is the fact that the omnibus proposes a substantial increase in the number of H-2B workers.  Currently, the number of H-2B workers is capped at 66,000 a year.  The omnibus works around this cap by stating that workers who got an H-2B visa in 2013, 2014, or 2015 shall not count against the cap for 2016.  This means that as many as 264,000 H-2B workers could be in the country in 2016.

But the omnibus does not stop with visa expansion.  It also puts forward a host of policies that will remove other limits on this program.

The omnibus revises or defunds various regulations of the H2B program.  Under the omnibus:

• "Seasonal" workers can work 10 months out of the year.
• Employers will be able to use a broader variety of methods to calculate what exactly H-2B workers should be paid.  (The H-2B program, like other guest-worker programs, relies on the government management of wages.)  This revision could allow employers to pay some workers less than under current policy.
• The current 3/4 guarantee is defunded.  The 3/4 guarantee stipulates that employers who use the H-2B program must offer H-2B workers a total number of work hours equal to at least 3/4s of the workdays over a 12-week period.
• Efforts to stop abuses in the H-2B program are rolled back and defunded.

Corporate lobbyists are very excited by this expansion of the H-2B program.  Applauding the omnibus, a landscaping group offers praise to the following members of Congress:

Senators Cochran (R-MS), Mikulski (D-MD), Hoeven (R-ND), Shaheen (D-NH), Blunt (R-MO), Murray (D-WA), Cassidy (R-LA), Tillis (R-NC), Warner (D-VA) and Reps. Hal Rogers (R-KY), Nita Lowey (D-NY), Carter (R-TX), Roybal-Allard, Cole (R-OK), DeLauro (D-CT), Harris (R-MD), Goodlatte (R-VA), Chabot (R-OH), and Boustany (R-LA).

In its summary of the omnibus, the House Appropriations Committee trumpets the fact that the omnibus "roll[s] back...regulations that make it harder for employers to use the H-2B program."

H-2B guest workers compete against native-born Americans and legal immigrants who are young, without advanced schooling, rural, and poor.  Thus, many of the most vulnerable will face economic pressures from this visa expansion.  Proponents of the GOP as a party of opportunity have raised doubts about this expansion of the H-2B program.  A bipartisan group of senators, including Jeff Sessions (R-AL) and Richard Blumenthal (D-CT), have criticized this proposal.

Some Debate Thoughts

A few scattered thoughts about tonight's debate:

Jeb Bush and Rand Paul had good nights.  Jeb's delivery was stronger than in past debates.  He was more forceful and articulate.  Whether one agrees with him or not, Paul made himself a major player in the debate over foreign policy, and his attacks on Rubio have earned him plaudits from some on the right.  It's unclear whether these better performances will translate into a bump in the polls, but Bush's numbers especially bear watching.

Cruz was smart not to attack Trump.  Attacking Trump risks dividing the outsider-leaning conservatives that Cruz will need to win the primary.  Cruz has done well by outlining his own vision and cultivating networks of conservative activists.  That strategy has paid dividends so far.

Trump was also smart not to attack Cruz.  Earlier this week, Trump's criticisms of Cruz led to a lot of pushback from conservative talk radio--his campaign does not need that kind of criticism.

A strong debater, Rubio faced some attacks from Cruz and Paul and handled them with aplomb.  Time will tell whether the discussion of immigration undermines Rubio's polling support in the days ahead.  Rubio remains in a strong position, but the growth of Christie and a possible Bush revival might be causing his team some heartache.

I'll leave you with this passage from Jonathan V. Last's take on the debate:

Here's what I mean by that: Either Donald Trump is going to be the nominee, or he's going to be Howard Dean. My money is on the latter. But what people forget is that Howard Dean remade the Democratic party even in his defeat. Many of the Deaniacs from 2004 never materialized at the polls. But they didn't exactly melt away into the countryside. Those activated, passionate Dean-supporters became that backbone of the Obama insurgency that diverted the party from Third-Way Clintonism. There is no Barack Obama without Howard Deand. In many ways, Obama is really Dean 2.0.
In that sense, even if Trump is not the nominee, it seems likely that he will have exerted a large pull on the trajectory of Republican party by creating a totally new coalition of voters around a new set of nationalist ideas. And like the Deaniacs, his supporters might not disappear even if he loses this race.
Which means that a politician who wants to lead the party going forward can't dismiss Trump's nationalism with a wave of the hand. He'll be someone who identifies why people are sympathetic to Trump, can convince those people that he understands their concerns, and manages to synthesize Trumpism with the more traditional conservatism of the party.

Even in Proportional Primaries, a Candidate Can Win a Majority of Delegates

Since talk of a brokered Republican convention is in the air, I thought I'd highlight this little, but interesting, dynamic in the intersection of convention rules and proportionality rules for various states.

A change put in to the convention last cycle was the requirement that a candidate could only be placed in nomination for the presidency if he or she has a majority of at least 8 states' delegates; this requirement is rule 40(b).  According to RNC rules, primaries until March 15 must be run on a proportional basis; the ones after March 15 can be run on a winner-take-all basis.  Currently, 27 states have primaries after March 15.

In a broad field as we've seen in 2016, it would at first seem unlikely that, in many of the proportional states, a single candidate will get a majority of delegates from that state.  This would in turn seem to make it harder for candidates to get to the needed majority of delegates from 8 states to have their names be nominated for the first floor vote in Cleveland.

But looks can be deceiving.  While the first 23 state primaries are officially proportional, state primary rules complicate this proportionality; in many states, it's not necessary to get a majority of the votes in order to get a majority of primary delegates from that state.

Josh Putnam, a political scientist at the University of Georgia, has an invaluable site on the primary process.  Putnam provides a breakdown of delegate-apportionment rules for various early states.  This breakdown suggests that, in a big field, it might be easier than it seems for a single candidate to claim the majority in an early, proportional primary.

This is partly because some states establish thresholds for candidates to get any delegates: fall below that threshold, and you get no delegates.  These thresholds can make it easier for a candidate who has a plurality of votes to get closer to having a majority of delegates.

Take New Hampshire.  In order to get any delegates for this state, a candidate has to get at least 10% of the vote.  This could potentially cause a number of delegates to be initially unassigned.  Going by current RCP polling numbers, 10 candidates, with about 40% of the vote, are under 10% in NH polling.  If the vote were held today with that kind of breakdown, 40% of the at-large delegates would be initially unallocated; that 40% would go to whoever had the plurality.  Thus, someone who had only a plurality in the upper-20s could end up with a majority of the delegates from NH.  Putnam in fact games out a scenario where that happens.

South Carolina, another early primary state, is actually closer to a winner-take-all state.  In SC, 29 delegates are assigned statewide (26 at-large, and 3 automatic), and 21 delegates are assigned by congressional district (with 3 delegates per district).  The person who wins the statewide vote gets all the statewide delegates.  For the congressional-district delegates, the person who wins a plurality in each district gets all 3 of that district's delegates.

I can imagine some mathematical permutations in which a single candidate gets a plurality of the statewide vote while not winning a plurality in any given congressional district, but I would assume that a candidate who has a strong showing across the state would tend to do fairly well on the congressional-district level, too.  So a candidate with a plurality could end up sweeping almost all the delegates for that state.  In the 2012 SC primary, Newt Gingrich got about 40% of the vote, but he ended up with over 90% of the state's delegates.  In any case, the candidate who wins a plurality in SC is going to win a majority of the state's delegates.

Even in more complex primaries, like Georgia's, it's quite possible to see how a candidate who gets plurality of the vote ends up with a majority of the state delegates.  The 31 at-large delegates are assigned proportionally to candidates who clear a 20% threshold; if, for example, only one candidate is above 20%, he or she gets all the at-large delegates.  3 automatic delegates go to whoever gets a plurality.  Each of the state's 14 congressional districts gets 3 delegates.  These 3 delegates are assigned in the following way: 2 go to the winner of that district, and 1 goes to the runner-up.  This means that, if the candidate who wins the state's overall vote runs fairly well across the state as a whole, he or she could easily end up racking up most of the state's congressional-district delegates and win a majority of the state's delegates.

There are at least a couple takeaways from all this:

• It's easier than it seems for candidates to get a majority of a state's delegates even in proportional primaries.  This means that it could be easier for candidates to win majorities in 8 states in order to get their names placed in nomination on the floor in Cleveland.
• In a big field, a candidate with a plurality who runs well in a variety of states could conceivably leave these states with a majority of the delegates and be in a good position once the winner-take-all states begin in the middle of March.  And, if a candidate enters Cleveland with a clear majority of delegates, there will be no brokered convention.

Evolving on Immigration

In National Review Online, I argue that Republicans would be wise to "evolve" on immigration reform.  This evolution would work toward an immigration system that prioritizes opportunity and integration.  The status quo of bad-faith open borders often undermines both aims: illegal immigration and guest-worker programs suppress wages, undermine the civic consensus, and fracture the body politic.  Many immigrant families struggle to gain economic traction, and shifting the immigration system (by both upping enforcement and reforming immigration flows) could help newcomers to the United States better integrate into our republic.

Over at First Things, Pete Spiliakos offers some related points.  Spiliakos argues that we should work toward an immigration system that doesn't pit immigrants against each other or against the native born but instead recognizes that we are all in this together.

Spiliakos's recommendations could be part of a broader trend.  It seems to me that many of those interested in reforming the GOP as a party of opportunity-oriented conservatism are interested in thinking about how to reform immigration in a way that strengthens American communities (and, of course, those who reside in these communities).  Part of this strengthening involves a sense of civic integration.  Republicans have long been the party of integration, so emphasizing themes of integration for immigration has a long Republican tradition.  But the theme of integration could also help the GOP, and the nation as a whole, confront some very contemporary issues--as I explore in the NRO piece mentioned above.