On the May 1 edition of Fox News' The Big Story, host John Gibson allowed Rep. Tom Tancredo (R-CO) to suggest 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. While Gibson and Tancredo repeatedly emphasized that Democrats voted against an amendment that would have removed the felony provision from the bill, they 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 by reducing the offense from a felony to a misdemeanor. As Rep. F. James Sensenbrenner (R-WI), the amendment's sponsor, noted of the amendment: “By leaving these offenses as misdemeanors, more prosecutions are likely to be brought against those aliens whose cases merit criminal prosecution.”

Additionally, in discussing the provision with Fox News senior legal analyst Andrew P. Napolitano later in the broadcast, Gibson claimed that it was "[b]ecause of Democrats, not Republicans" that the felony provision was not removed, suggesting that Democrats favored it. In fact, Democrats said they opposed the measure because it preserved “the underlying issue” of criminalization of what is currently a civil offense -- not because they supported retaining the felony provision. Gibson also claimed that “Republicans wanted” Sensenbrenner's amendment, but “the Democrats voted against it.” In fact, nearly one-third of House Republicans joined 191 House Democrats in voting against the Sensenbrenner amendment.

During his interview with Tancredo, Gibson asked: “Congressman, are you sticking with the House bill that requires that illegals be considered felons?” Tancredo replied: “No ... there was an amendment ... to take out the provision that makes entry into this country illegally a felony. All of the Democrats voted against it and a few Republicans, so that we ended up losing the amendment and the felony provision stayed in the bill.”

But as Media Matters for America previously noted (here and here) -- and Gibson did not -- Sensenbrenner himself explained the amendment 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.

Later in the program, Gibson asked Napolitano to distinguish the House and Senate immigration reform proposals. Napolitano noted that "[t]he House bill would have declared as a matter of law that the 11 million illegals are felons and it would have required the federal government to kick them out, prosecute them, or both." Gibson then claimed that it was "[b]ecause of Democrats, not Republicans" that the felony provision was not removed. While Napolitano noted, “Well, the Republicans voted for it,” Gibson persisted, saying: “The Democrats wouldn't let it be amended.” Napolitano then insisted that, "[t]he Republicans have a majority in the House. We could go on like this all afternoon"; Gibson responded: "[L]et's remember, the Republicans wanted the amendment, the Democrats voted against it."

But contrary to Gibson's suggestion, while many Republicans did indeed want the amendment to increase prosecution of illegals, 65 Republicans joined 191 Democrats in voting against it.

From the May 1 edition of Fox News' The Big Story with John Gibson:

GIBSON: Congressman, are you sticking with the House bill that requires that illegals be considered felons?

TANCREDO: No. We actually tried in the House -- I mean, this is one of the strangest -- set of circumstances. But in the House, there was an amendment, which I supported and was actually offered by the author of the bill, Mr. Sensenbrenner, to strike that provision, to take out the provision that makes entry into this country illegally a felony. All of the Democrats voted against it and a few Republicans, so that we ended up losing the amendment, and the felony provision stayed in the bill. Why did they vote against it? They voted against it because they wanted to keep it a poison pill. But if it ever gets to a conference committee, I assure you it's coming out.

GIBSON: All right. Congressman Tom Tancredo, Republican from Colorado. Congressman, thanks very much.

[...]

GIBSON: So, how close are these two [Senate and House] bills?

NAPOLITANO: The Senate bill, the one to which 70 senators more or less agreed, though it had not yet been reduced to writing before the Easter recess, would basically have allowed two-thirds to three-quarters of the 11 million illegals to either stay here or leave and quickly return, and they would have been on a very fast path to citizenship. The House bill would have declared as a matter of law that the 11 million illegals are felons, and it would have required the federal government to kick them out, prosecute them, or both.

GIBSON: But Judge, you just heard Tancredo.

NAPOLITANO: Well, he voted for a statute that he now says he disagreed with. One could argue he disagrees with it because of the poison pill --

GIBSON: One hundred ninety-one Democrats would not allow that provision to be removed. Now, they did that to embarrass Republicans.

NAPOLITANO: It's in the bill --

GIBSON: Yes --

NAPOLITANO: -- and this is the bill that the Republicans passed.

GIBSON: -- because of Democrats, not Republicans.

NAPOLITANO: Well, the Republicans voted for it.

GIBSON: The Democrats wouldn't let it be amended.

NAPOLITANO: The Republicans have a majority in the House. We could go on like this all afternoon.

GIBSON: I know, but let's remember, the Republicans wanted the amendment, the Democrats voted against it.

NAPOLITANO: The House bill as it stands has that declaration in it. I think he's probably right. I can't imagine the Senate voting to declare 11 million people felons. So that, ultimately, would come out. But it shows you the gap in thinking between the majority in the Senate and the majority in the House.