On the May 2 broadcast of his nationally syndicated radio show, Bill O'Reilly echoed the misleading claim, made frequently by congressional Republicans and conservative media figures, that Democrats are to blame for a provision in the immigration bill passed by the House of Representatives in December 2005 that would make it a felony for immigrants to be in the United States illegally. O'Reilly declared that, by voting against an amendment that would reduce the penalty for illegal presence from a felony to a misdemeanor, Democrats decided to “keep it as a felony” in order to “embarrass the Republicans.” But O'Reilly did not note that the amendment would not have eliminated criminal prosecutions against illegal immigrants from the bill but, rather, would have -- by its sponsor's own admission -- actually facilitated criminal prosecutions, as Media Matters for America has previously noted (here, here, and here). Further, contrary to O'Reilly's suggestion that Democrats' vote on the amendment signals that they favor the felony provision, Democrats said they opposed the amendment because it preserved “the underlying issue” of criminalization of what is currently a civil offense -- not because they supported retaining the felony provision.

Discussing the stringent immigration reform bill sponsored by Rep. F. James Sensenbrenner (R-WI) and passed by the GOP-led House on December 16, 2005, O'Reilly said: "[I]nterestingly enough, when this passed the House, the Republican leadership ... wanted to down the felony aspect to a misdemeanor, but the Democrats in the House said, 'No, keep it as a felony.' " O'Reilly then added: “Now, the reason they did that was 'cause they wanted to embarrass the Republicans.”

But Sensenbrenner, the amendment's sponsor, explained it as an effort to facilitate prosecutions because the due-process safeguards required in felony prosecutions are not required in misdemeanor prosecutions. From Sensenbrenner's December 16, 2005, floor statement:

SENSENBRENNER: The administration subsequently requested the penalty for these crimes be lowered to 6 months. Making the first offense a felony, as the base bill would do, would require a grand jury indictment, a trial before a district court judge and a jury trial.

Also because it is a felony, the defendant would be able to get a lawyer at public expense if the defendant could not afford the lawyer. These requirements would mean that the government would seldom if ever actually use the new penalties. By leaving these offenses as misdemeanors, more prosecutions are likely to be brought against those aliens whose cases merit criminal prosecution.

For this reason, the amendment returns the sentence for illegal entry to its current 6 months and sets the penalty for unlawful presence at the same level.

Additionally, as the Congressional Record shows, Democrats said they opposed Sensenbrenner's amendment because it continued to criminalize unlawful presence in the United States. From Rep. Zoe Lofgren's (D-CA) floor statement immediately following Sensenbrenner's introduction of the amendment:

LOFGREN: This section, section 203, makes virtually any violation of the immigration laws an ongoing criminal act. In one stroke, it would subject the entire undocumented population, estimate by some to be 11 million people, to criminal liability. Now the amendment before us changes the degree of punishment, but it does not alter the underlying issue of criminalizing being alive in the country without documents.

Shortly thereafter, Rep. Luis Gutierrez (D-IL) declared on the House floor that the Hispanic Congressional Caucus had unanimously resolved to oppose the amendment. “I do not think we should criminalize it at any level,” Gutierrez said

Finally, Los Angeles Times columnist Ronald Brownstein summed up the source of the Democratic opposition in his April 16 column:

Hastert and Frist are right that political posturing contributed to the Democratic vote: They had little interest in helping Republicans sand off the sharpest edge in the GOP bill.

But Democratic opposition rested on a deeper objection that Hastert and Frist ignore. If House Democrats supported the Sensenbrenner amendment, they would have been voting to make unlawful presence a misdemeanor. But almost all Democrats believe it should not be a crime. The House Democrats' bill retains unlawful presence as a civil, not criminal, violation.

While the amendment to reduce the felony provision in the bill to a misdemeanor failed, an overwhelming majority of House Republicans voted for the final bill with the felony provision included. By contrast, a large majority of Democrats opposed it.

From the May 2 broadcast of Westwood One's The Radio Factor with Bill O'Reilly:

O'REILLY: In the House of Representatives, you have a bill that would legalize nobody, basically nobody. And if you didn't get out of the country, you would be charged with a felony. Now, interestingly enough, when this passed the House, the Republican leadership, under James Sensenbrenner, congressman from Wisconsin, wanted to down the felony aspect to a misdemeanor, but the Democrats in the House said, “No, keep it as a felony.” Interesting.

Now, the reason they did that was 'cause they wanted to embarrass the Republicans, who, of course, played right into the trap. So, the House bill is no amnesty, no pass to citizenship, you go back to where you came from, and then we'll figure it out from there, OK? And if you don't go back, it's a felony. Now obviously, anybody here illegally is gonna oppose that, and all the sympathetic left is gonna oppose that. Obviously, anybody on the right is gonna oppose McCain/Kennedy [the Senate's version of the immigration bill], and a lot of people in the middle oppose it too. They say, “Well, look, this is crazy. You can't add 25 million new citizens in five or six years. It's gonna change the country dramatically, and that's not the way we do things here. We don't give into lawbreaking.”