Senators Are Talking About a New Deal to Partially End the DHS Shutdown

The momentum to end the ongoing Department of Homeland Security shutdown picked up Monday evening. 

Key Republican senators reportedly seemed more optimistic about a possible deal to restore funding to the majority of the agency following a Monday afternoon White House meeting. Sens. Katie Britt (R-AL), Steve Daines (R-MT), Lindsey Graham (R-SC) and Bernie Moreno (R-OH) met with President Donald Trump, Border czar Tom Homan, Stephen Miller and other administration officials to pitch a plan to fund the majority of the DHS — including, critically, the TSA — and later addressing the ICE portion in a party-line reconciliation bill. Soon-to-be DHS Secretary Markwayne Mullin also reportedly attended the meeting.

The framework under discussion reportedly funds all parts of DHS except ICE’s removal operations. That includes ICE’s less controversial, nonenforcement parts, including Homeland Security Investigations. It would also fund Border Patrol. It remains unclear if there are adequate Democratic votes to go along with this plan. 

Republicans plan to address funding for ICE enforcement operations and the SAVE America Act — a sweeping voter suppression bill which Trump demanded on Sunday they pass before making any deal with Democrats on DHS — later in a reconciliation bill. How specifically that would work remains unclear.

A reconciliation bill requires a simple majority vote to pass and would only require 51 votes in the Senate, meaning Republicans would not need Senate Democrats’ help as long as they can agree to the specifics of the bill within their own caucus and with their counterparts in the House side.

But every single provision of a law going into reconciliation bills must be directly related to the budget and has to comply with strict budget rules. In its current form, the SAVE Act — requiring, among other things, that people present proof of citizenship when registering to vote — would presumably not meet those rules. It has little to do with the budget. It’s unclear how and if Republicans will be able to rework the legislation in order to fit some aspect of the SAVE Act into a reconciliation bill.

“The meat of the Save Act cannot be done in reconciliation unless you’re willing to break the rules of reconciliation,” Bobby Kogan, senior director of federal budget policy at the Center for American Progress, told TPM. 

Kogan explained Republicans could “pay states to voluntarily change their state rules, to do some of the stuff in the Save Act” but they are trying to set “binding national requirements, and that sort of thing is either non budgetary in some cases or merely incidental in other cases” and can’t be addressed in the reconciliation process.

“There’s a deeper political problem,” Kogan added. “If you can finagle some very, very minor stuff, do they get to pretend they have a win? Or does it further enrage the people who know that it’s nowhere close to what they’re actually seeking?”

Since the ongoing shutdown started in February, Democrats in both chambers have repeatedly tried to get Republicans on board with a bill that would fund all agencies under the DHS umbrella, except ICE and CBP — including TSA, the Secret Service, FEMA and the Coast Guard. That was largely an effort to help ameliorate the long lines at airports and point to the fact that Democrats don’t have any issues with funding the non-ICE portions of DHS. Each time, the effort was blocked by Republicans.

Britt, who has been one of the key negotiators on the issue, said Monday afternoon that she planned to be “working through the night” to try to “land this plane.”

The reported deal is a big shift from the stance Republicans have held for more than a month.

While it is unclear if substantial numbers of Senate Democrats would get behind a deal that would partially fund ICE, it could peel off the handful of Democratic senators Republicans need to overcome the filibuster.

“This is significant movement,” Sen. Peter Welch (D-VT) said on the possible deal. “We have a dispute about ICE practices. We don’t have a dispute about funding TSA. We don’t have a dispute about funding the Coast Guard or FEMA.”

With this proposed deal, Democrats could say they didn’t give ICE more money for some of the practices they have been criticizing. But it remains to be seen if the deal will also include any of the demands they have been making to create meaningful change to ICE practices and conduct.