In an effort to deflect blame for the controversial felony provision in the Republican-sponsored House immigration bill, GOP congressional leaders have recently claimed that Democrats bear responsibility for the proposal. They have noted that 191 House Democrats voted against an amendment to reduce the charge for unlawful presence in the United States from a felony to a misdemeanor. Numerous media outlets, in turn, have uncritically repeated this version of events.

But the claim that Democrats supported the immigration bill's harsh penalties and opposed Republican efforts to soften them distorts the stated motives on both sides of the aisle. Indeed, many Democrats made clear at the time of the vote that their rejection of the amendment was consistent with their opposition to subjecting illegal immigrants to any criminal penalties. Republicans, meanwhile, explained that they sought to downgrade the felony designation in order to encourage prosecutions.

The stringent immigration reform bill sponsored by Rep. F. James Sensenbrenner (R-WI) and passed by the GOP-led House on December 16, 2005, provoked a groundswell of grassroots opposition in March and April, including massive protests in cities nationwide. Attempting to disassociate themselves with one of the most controversial elements of the bill -- the provision subjecting illegal immigrants to possible felony charges -- Republican leaders have pointed to the fact that 191 Democrats voted against an amendment proposed by Sensenbrenner on December 16, 2005, that would have reduced the penalty of illegal U.S. presence from a felony to a misdemeanor.

In a March 29 USA Today op-ed, Rep. Tom Tancredo (R-CO) described Republicans' support for the harsher punishment as a “myth.” He wrote, “The truth is Democrats voted for the felony provision, and a majority of Republicans (including me) voted against it.” House Speaker J. Dennis Hastert (R-IL) and Senate Majority Leader Bill Frist (R-TN) released an April 11 statement claiming that 191 House Democrats “voted to make felons out of all of those who remain in our country illegally.” Hastert and Frist went on to deride Democrats' purported “lack of compassion.” Further, the Republican National Committee (RNC) reportedly produced ads intended to run on Spanish-language radio stations claiming that Democrats “voted to treat millions of hardworking immigrants as felons ... while President Bush and Republican leaders work for legislation that will protect our borders and honor our immigrants.”

But the Congressional Record shows that Democrats opposed the measure because it preserved “the underlying issue” of criminalization -- not because they supported the felony provision, as Republicans have suggested. 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.

Los Angeles Times columnist Ron 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.

But in reporting on the rejection of the Sensebrenner amendment, several news outlets have entirely ignored the Democrats' stated reason for their opposition. For instance, on the April 12 edition of CNN's Lou Dobbs Tonight, host Lou Dobbs reported, “It should be noted that Congressman Sensenbrenner himself tried to remove the felony provisions from his bill. The move was blocked by House Democrats.” Similarly, on the April 14 edition of Fox News' Special Report with Brit Hume, Fox News White House correspondent Wendell Goler informed viewers: “The House bill makes illegal immigration a felony. Some Republicans actually tried to remove the provision, but a majority of House Democrats voted to keep it in the bill.” Such accounts leave the false impression -- advanced by Republicans -- that the Democrats supported the felony designation.

On April 13, the hosts of Fox News' Fox & Friends furthered this version of events. Co-host Brian Kilmeade said of the felony provision: "[T]hey [the Repubicans] wanted to get rid of it and knock it down to a misdemeanor, but 190 Democrats voted to leave it in." Kilmeade's colleague and co-host E.D. Hill went a step further, stating, "[Y]ou've got plenty of Democrats that ... are siding with Republicans, saying, 'Hey, yeah, make it a felony.' "

More recently, an April 14 article by Associated Press staff writer Suzanne Gamboa highlighted the RNC's claim that “Democrats are responsible” for the harsh punishments in the bill and repeated the Republicans' argument that “Democrats see a political benefit in maintaining the felony provision.” Gamboa went on to note that Senate Democratic Leader Harry Reid (NV) and House Democratic Leader Nancy Pelosi (CA) declared in an April 14 joint statement, “No amount of spin by the Republican leadership can change the fact that the Sensenbrenner bill -- including the felony provision -- was authored by Republicans and ultimately passed by Republicans.” But Gamboa entirely ignored Reid and Pelosi's rebuttal of the specific charges leveled against their party in the RNC attack ads. From their April 14 statement:

The fact is that Congressman Sensenbrenner's amendment, if adopted, would have still criminalized an entire population for the first time in our history, rather than charging presence violations as civil offenses as provided under current law. 11 million men, women, and children, with no exceptions, would still go to jail for up to six months under the revised Sensenbrenner amendment. That is why many Democrats voted against the Sensenbrenner amendment.

Like many other reports, Gamboa's article also neglected to provide the proper context for Sensebrenner's amendment. Gamboa noted that Sensenbrenner, speaking on the House floor, “said the provision making unlawful presence a crime was done at the administration's request, according to the Congressional Record. The administration asked the crime be made a misdemeanor, he said.” But Gamboa ignored the administration's reason for making this request. A closer look at Sensenbrenner's introduction of the amendment makes clear that the White House lobbied for the change because they feared the due process requirements associated with felony charges would limit the number of actual 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.

Despite the fact that the amendment was clearly an attempt to ensure a greater number of prosecutions, some news outlets, such as The Washington Post, nonetheless described it as an effort to "soften" the bill.

From the April 12 edition of CNN's Lou Dobbs Tonight:

DOBBS: Republican leaders in Congress tonight are backing off provisions on the Sensenbrenner legislation that would subject illegal aliens to felony prosecution for crossing the border. House Speaker Dennis Hastert and Senate Majority Leader Bill Frist say any immigration reform legislation that passes Congress will not subject illegal aliens to prosecution as felons.

These congressional leaders will not say what punishments, if any, they are willing to impose against the nation's estimated 11 to 20 million illegal aliens, but their action is intended to help build GOP support for some kind of immigration reform bill. It should be noted that Congressman Sensenbrenner himself tried to remove the felony provisions from his bill. The move was blocked by House Democrats. Sensenbrenner says the penalty against illegal aliens should be reduced to a misdemeanor.

From the April 13 edition of Fox News' Special Report with Brit Hume:

GOLER: The House bill makes illegal immigration a felony. Some Republicans actually tried to remove the provision, but a majority of House Democrats voted to keep it in the bill. The president says the issue is drowning in politics.

From the April 13 edition of Fox News' Fox & Friends:

KILMEADE: Now, what's interesting about this -- the nuance of this debate is that the felony was put out there, and it says that when they go into conference, the felony will be knocked down to misdemeanor, that's what [Rep.] Peter King [R-NY] says. But they wanted to get rid of it and knock it down to a misdemeanor, but 190 Democrats voted to leave it in.

[...]

HILL: The conventional wisdom is that Democrats will benefit. But when you take a look at it, you've got plenty of Democrats that are siding with Republicans -- I mean, everything's mixed up -- are siding with Republicans saying, hey, yeah, make it a felony. So, I don't think that anybody can take a look at it and say, OK, well, this bill is either Republican or Democrat.

[...]

STEVE DOOCY( co-host): Now, here's some big news. You know, some have suggested that the reason all those big crowds were generated for the rallies was the -- in the House version, they were suggesting that -- make it a felony to be here in the United States. Top House and GOP Republicans, Frist and Hastert, have pledged to remove the felony provision from any upcoming legislation.

KILMEADE: And remember, the House Republicans wanted to, in their final version, but 190 Democrats said, no, leave in the felony portion of it.