Examining the Deliberative Process of. S.B. 1070: Arizona s Support Our Law Enforcement and Safe Neighborhoods Act

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1 Examining the Deliberative Process of S.B. 1070: Arizona s Support Our Law Enforcement and Safe Neighborhoods Act Jeanine E. Kraybill WPSA Conference Portland, OR March

2 On April 19, 2010, the Arizona State Legislature passed one of the toughest illegal immigration laws in the United States, the "Support Our Law Enforcement and Safe Neighborhoods Act. This approved piece of legislation was subsequently transmitted to Governor, Jan Brewer and executed into law on April 23, Due to its restrictivist nature regarding illegal immigrants, this piece of legislation captured national attention. To date, the controversy and legal battle over S.B continues. This being said, it makes for an interesting study to analyze how deliberative the legislative process was in passing this bill. Therefore, the purpose of this paper is to examine the passage of S.B. 1070, specifically evaluating how deliberative the process was. This analysis will demonstrate that, despite its controversial nature, this bill was argued and passed on the merits of public policy and satisfies principles of deliberative democracy. Before discussing the relevant literature on deliberative democracy, it is important to provide some context to what the state has experienced in terms of illegal immigration and why supporters of the bill made efforts to get it passed. Arizona is considered the biggest gateway state into the United States for illegal immigration. Estimates show that the state is home to approximately 460,000 illegal immigrants, which is a population larger than cities such as, Cleveland, St. Louis and New Orleans. Data also shows that over the past three years, Border Patrol agents have made approximately 990,000 arrests of immigrants crossing the Arizona state border illegally, which averages to about 900 arrests per day. 2 This violence seemed to come to a climatic point, when in March of 2010, rancher Rob Krentz was murdered, along with his dog, outside of his home, which is 19 miles from the Arizona-Mexico border. 1 Bill Status Overview for S.B Arizona State Senate, Forty-ninth Legislature, Second Regular Session. Retrieved November 2, 2010 from: 2 Gottlieb, Carl. (April 2005). Analysis: Why Arizona Passed Tough Illegal Immigration Law. News Now: WUSA9.com. Retrieved September 3, 2010 from: 2

3 Speculation that it may have been an illegal immigrant who shot Krentz, further inflamed conservatives in the state legislature and the public. 3 However, public sentiment, as demonstrated through polling data, has shown that over the past several years many Arizonians have been supportive of various illegal immigration restrictions. For example, in a poll taken in February of 2006, 65% of those who responded supported charging undocumented immigrants with criminal trespassing. 4 Some have argued that as a result of the events stated above, along with former Democratic Governor Janet Napolitano leaving her position to serve in President Obama s cabinet that the Republican majority in the state legislature was finally in the position to pass strict immigration legislation, such as S.B The law, which requires officials and agencies of the state and political subdivisions to fully comply with and assist in the enforcement of federal immigration laws, 6 was introduced by Republican State Senator, Russell Pearce, who has been one of Arizona s most vocal critics regarding immigration policy. 7 Literature Review In examining the passage of S.B. 1070, it is important to look at literature on deliberative democracy that is most relevant to the objectives of this paper. In his work, The Mild Voice of Reason, Joseph Bessette discusses the foundations of deliberative democracy and explains that the intention of the Founders was to create a system where authority was vested with the deliberative majority opinion. A republic system of government, where representatives would foster informed and reasoned 3 Ibid 4 Immigration Facts: Arizona. (2010). FAIR: Federation for American Immigration Reform. Retrieved September 18, 2010 from: 5 Gottlieb, Carl. (April 2005). Analysis: Why Arizona Passed Tough Illegal Immigration Law. News Now: WUSA9.com. Retrieved September 3, 2010 from: 6 Final Amended Fact Sheet for S.B Arizona State Senate, Forty-ninth Legislature, Second Regular Session. Retrieved September 18, 2010 from: 7 Ibid 3

4 judgments regarding public policy. 8 Bessette argues that the deliberation that lies at the center of the type of republican system that the framers created can be defined most simply as reasoning on the merits of public policy. 9 Defining this process, Bessette states, As commonly and traditionally understood, deliberation is a reasoning process in which the participants seriously consider substantive information and arguments and seek to decide individually and to persuade each other as to what constitutes good public policy. Thus, deliberation includes a variety of activities often called problem solving or analytic : the investigation and identification of social, economic, or governmental problems: the evaluation of current policies or programs; the consideration of various and competing proposals; and the formulation of legislative or administrative remedies. 10 Bessette argues that every deliberative process not only encompasses the definition above, but involves three key elements: information, arguments and persuasion. 11 These key elements can be found at various points of the deliberative process and will be discussed in this paper, along with Bessette s discussion on the detailed and extensive nature of committees and their contributions to the deliberative process. 12 Gary Mucciaroni and Paul J. Quirk, in their work, Deliberative Choices: Debating Public Policy in Congress also discusses the concept of deliberative democracy. Their goal is to assess how Congress deliberates about public policy and how informed they are when considering legislation. 13 In analyzing these factors, Mucciaroni and Quirk discuss how floor debates are crucial to the deliberative process, since they provide a means for legislators to obtain information about the merits of public policy decisions. 14 Through their case studies, Mucciaroni and Quirk uncover characteristics of what they 8 Bessette, J. (1994). The Mild Voice of Reason: Deliberative Democracy & American National Government. (p.1). Chicago: The University of Chicago Press. 9 Ibid, p Ibid, p Ibid, p Ibid, p Mucciaroni, G. & Quirk, P.J. (2006). Deliberative Choices: Debating Public Policy in Congress. (p. 13). Chicago: The University of Chicago Press 14 Ibid, p. 6 4

5 consider effective debate and develop a range of strategies and claims legislators employ during deliberation. 15 Finally, an additional piece of literature that is relevant to this research paper deals with federal versus state enforcement of immigration policy. Miriam Wells, in her article, The Grassroots Reconfiguration of U.S. Immigration Policy, discusses that despite the increasing constriction of immigrants rights at the federal level, local and state responses to immigration policy have been more divergent and varied. Wells attributes this to the multi-layered structure of U.S. nation-state/federal system. 16 Wells also addresses the question of whose responsibility citizenship enforcement is, the federal or state and local governments. Wells explains the position that immigration enforcement is a federal responsibility and stems from Article I, Section 8 of the U.S. Constitution, which grants the federal government the exclusive authority to regulate immigration and from the supremacy clause, which precludes state and local governments from taking action in the realm of immigration enforcement. 17 Research Methodology & Explanation of Data The scope of this paper will be limited to the committee hearings, floor debates and voting explanations that took place regarding S.B Employing a qualitative approach, Joseph Bessette s definition and principles of deliberative democracy, as well as Gary Mucciaroni and Paul J. Quirk s evaluation of congressional floor debates, I will determine whether or not the Arizona State Legislature exercised principles of deliberative democracy in the process of passing S.B Ibid, p Wells, Miriam. (Winter, 2004). The Grassroots Reconfiguration of U.S. Immigration Policy. International Migration Review. 38 (4), p Ibid, p In future research, other elements will be examined, such as partisanship and public opinion polls. However, due to current time and the length requirements of this assignment, only committee and floor debates will be analyzed. 5

6 The first piece of data to be examined will be the committee hearings that involved deliberation of S.B As Bessette states, By design it is in committees and subcommittees that the most detailed and extensive policy deliberation occurs within Congress. 19 Even though these hearing were conducted at the state level, the point made by Bessette still holds true, since the Arizona State Legislature is closely modeled after the U.S. Congress. The committee hearings on S.B in the Arizona State Legislature also provided time for public testimony. Bessette discusses the importance of public hearings, by arguing that these forums are suited for analyzing the merits of pending legislation and discusses how this process promotes visibility, along with time for witness and expert testimony, enabling a wide range of views to be heard. 20 The data on committees is provided on the Arizona State Legislature website, where hearing videos are streamed for public viewing. 21 were available to view will be examined are as follows: The committees that debated S.B and whose videos The Senate Public Safety and Human Services Committee (January 20, 2010) The House Military Affairs and Public Safety Committee (March 31, 2010) The House Rules Committee (April 5, 2010) Floor debates will also be examined in this research paper. In their examination of floor debates, Gary Mucciaroni and Paul J. Quirk argue that debate is a crucial part of deliberation, because it provides an opportunity for legislators to obtain information about the merits of policy decisions. The following is a list of the debates that occurred and will be examined in this paper: Bessette, J. (1994). The Mild Voice of Reason: Deliberative Democracy & American National Government. (p. 156). Chicago: The University of Chicago Press. 20 Ibid, p Bill Video Archives for S.B Arizona State Senate, Forty-ninth Legislature, Second Regular Session. Retrieved October 29, 2010 from: 22 Bill Video Archives for S.B Arizona State Senate, Forty-ninth Legislature, Second Regular Session. Retrieved October 29, 2010 from: 6

7 Senate Third Reading #1 Floor Vote (February 15, 2010) House Committee of the Whole #1 Floor Debate (April 13, 2010) House Third Reading #1 Voting and Explanation of Votes (April 13, 2010) Senate Final Reading #1 Voting and Explanation of Votes (April 19, 2010) It should be noted that floor voting sessions are also included in the above list and will be considered as floor debate, because legislators had the opportunity to explain their voting positions, which took on a debate form in each chamber. Lastly, in the context of these variables and the research methodology, it is important to take into account the chronology of this process. Through the discussion of the committee hearings, floor debates and votes, this chronology will come to light (however, please refer to appendix 1, for a detailed list of the legislative chronology on S.B. 1070). Key Points of S.B Before discussing each of the committee hearings that were available to view, it is important to first provide some discussion of the bill and its intent. As previously mentioned, Republican State Senator Russell Pearce was the lead sponsor of S.B. 1070, and introduced the bill during the Second Session of the Forty-Ninth Legislature in the State of Arizona, where it was first read by the Senate on January 13, The first version of this bill included proposed points to deal with the problem of illegal immigration that Arizona was facing. 23 For example, the bill stated that no official or agency in the state, a county, city or town or other political subdivision could adopt a policy that limited or restricted enforcement of federal immigration laws then less to their fullest extent. It also enabled any legitimate contact to be made by an official or agency of the state or county, city, town or political subdivision in 23 Please note that is not practical to list the full context of the bill in this paper, and therefore, only key points will be discussed. To access the various versions of the bill, please visit the website for S.B. 1070, which is on the Arizona State Legislatures website 7

8 order to determine if a person is an alien where reasonable suspicious exists. From this point, the proposed bill called for a reasonable attempt to be made to determine the status of immigration and permit that it be verified with the federal government. 24 The proposal further stated that if an alien was convicted in violation of state or local law, that upon being discharged, he or she was to be transferred to Immigration and Customs Enforcement (ICE) or Border Protection. The bill went on to state that a law enforcement agency had the authority to transport an alien to a federal facility within Arizona or to another point of transfer into federal custody, that would be outside the jurisdiction of state and local law enforcement. The bill also permitted law enforcement officers to arrest a person without a warrant, if the officer had probable cause to believe that the individual had committed an offense that makes a person removable from the country. 25 Furthermore, the proposed legislation also required individuals to be able to provide proof of their legal status, permitted a person to bring an action in superior court to challenge any law enforcement agency in the state that limits or restricts the enforcement of federal immigration law to less than its fullest extent permitted by federal law, made it illegal for an occupant of a motor vehicle that is stopped on a road way or street to attempt to hire or pick up passengers for work at a different location or for a person to enter a motor vehicle that is stopped on the street in an attempt to be hired or be picked up for work at a different location, and made it unlawful for a person who is unlawfully present in the state to apply for work. 26 It also made it illegal to conceal, harbor, or shield an alien from 24 Introduce Version of S.B Arizona State Senate, Forty-ninth Legislature, Second Regular Session. Retrieved October 29, 2010 from: 25 Ibid. 26 Ibid. 8

9 detection in the state and required employers to utilize the e-verify program when determining an individuals work status. 27 These areas capture the main elements of the bill that were discussed in the committee and public hearings and floor debates. The preceding discussion will cover these points in the context of the committee hearings and what changes were made to the bill. Analysis of Deliberation Committee Hearings, Floor Debates and Votes Senate Public Safety and Human Services Committee. The bill was first referred to the Senate s Public Safety and Human Services Committee. On January 19, 2010, before the hearing took place, the committee did make an amendment to the bill changing some of its language. These changes were part of the committee s hearing. These language changes were not substantive overhauls and therefore, were very similar to the underlying bill. 28 The committee s hearing took place on January 20, The hearing consisted of both Senators deliberating on the proposal, as well as testimony provided by several individuals and organizations both for and against the bill. In total there were twelve speakers providing testimony, five of whom supported the bill, six whom were in opposition and one who was neutral. Out of these twelve individuals, three were members of the Senate. The entire hearing lasted 27 Ibid. 28 Please note that is not practical to detail/enclose the amendments of this bill in this paper, and therefore, only key issues pertaining to the amendment(s) as discussed in the committee hearing will be discussed. To access this particular this amendment (which was passed by in committee) dated January 19, 2010 please visit the Arizona State Legislatures website at Edoc%2Ehtm. 9

10 one hour and twenty-five minutes (see appendix 2 for information on the length of each committee hearing, floor debate and vote). 29 The hearing began with the reading of the bill, followed by sponsor, Senator Russell Pearce defending the legislation. Senator Pearce argued that the bill took the political handcuffs off of law enforcement. Regarding this point, Pearce argued that the federal government had a right to set policy, but that states had an inherent authority to enforce it. He also argued that day laborers have virtually shut down business and that this legislation was critical, because it removed provisions for sanctuary cities. 30 Senator Pearce was joined in support of the bill by, fellow Republican State Senator Al Melvin, who argued that the state s budget woes would be eliminated by enforcing this piece of legislation, since he argued that between 20% to 30% of the state s students, patients and inmates are illegal aliens who cost the state $2 billion dollars a year. The last legislator to speak about the bill, Democratic Senator Rios, first recommended to the chair that a full hearing be permitted even though there was a time issue, so that all sides could be heard regarding this proposal. Senator Rios made a brief comment stating that she had concerns with some of the language of the bill. 31 From this point, testimony on the bill from various organizations and individuals began. The Arizona Chamber of Commerce was represented by Allison Bell. Bell stated that the Chamber was neutral, but they would like to request that the language of the bill be changed so that businesses using e-verify would not be considered predisposed to hiring illegal aliens. 32 Five organizations/individuals provided testimony against the bill. Jennifer Allen, President of the Border Action Network emphasized general concerns. For example, she argued that the bill would 29 Senate Public Safety and Human Services Committee Bill Video Archives for S.B Arizona State Senate, Forty-ninth Legislature, Second Regular Session. Retrieved October 29, 2010 from: 30 Ibid. 31 Ibid. 32 Ibid. 10

11 cost the state in terms of liability; and argued that the bill was a grab bag of former bills that had previously failed in the legislature. Small business owner, Fernando Gonzales also raised concerns, stating he feared it would cause animosity, alienate the Hispanic community within the state and deter business from coming to Arizona. Gonzales also argued that the law would require police officers to have 287g 33 training in order to enforce illegal immigration policy and that would be costly to the state. 34 John Thomas of the Arizona Association of Chiefs of Police also spoke out against the bill. Thomas major concern stemmed from the provision of the law that stated that no official agency may adopt of policy that limits or restricts federal immigration law to less than its fullest extent. Thomas recalled that the legislation stated that if this did not occur, it allowed for anyone to sue the law enforcement entity or political subdivision for not complying and therefore, leave law enforcement liability and open to cost. Joe Seek with the Arizona Farm Bureau addressed concerns with the e-verify system, arguing that employers could be at fault if they ran an employee s paperwork that at the time passed through the system, but later found out that the person was not lawfully permitted to work in the United States. Chairman Allen corrected his testimony, by arguing that if the employer went through the process in this case, they would not be liable since they complied with the law by using e- verify. Lastly, Alessandra Soler Meetze with the ACLU discussed that other cities, such as Chandler, AZ who has had to pay $400, a to U.S. citizen who had been illegally detained because of similar 33 According to the Department of Homeland Security, the 287g program is defined as one of ICE s top partnership initiatives, allows a state and local law enforcement entity to enter into a partnership with ICE, under a joint Memorandum of Agreement (MOA). The state or local entity receives delegated authority for immigration enforcement within their jurisdictions. Department of Homeland Security. Delegation of Immigration Authority Section 287(g) Immigration and Nationality Act. Retrieved October 29, 2010 from: 34 Senate Public Safety and Human Services Committee Bill Video Archives for S.B Arizona State Senate, Forty-ninth Legislature, Second Regular Session. Retrieved October 29, 2010 from: 11

12 policies, along with Hazelton, PN who reportedly owed $2million in legal fees as a result of similar policies. 35 Three organization/ individuals also spoke out in favor of the bill. Mark Spencer, President of Phoenix Law Enforcement, read the names of officers stemming from the 1990s, who had lost their lives while on duty at the hands of illegal immigrants. Rob Haney, the Republican Party Chairman for Maricopa County also spoke in support of the bill, arguing that the county had already passed two resolutions that were similar to the bill. Lastly attorney, Tom Husband spoke in support of the bill, arguing that not supporting and complying with S.B was willful ignorance. 36 The committee meeting ended with Senator Russell Pearce providing a final rebuttal. He argued that a lot of misinformation was provided in the testimony against the bill and noted that 287g training was not necessary for arresting authority, but only for post arrest. He further argued that the 5 th, 6 th, 8 th, 9 th and 10 th Circuit Courts all ruled that states have an inherent authority to enforce federal immigration laws. After his rebuttal, the committee passed S.B and by a vote of four ayes and three nays. 37 Overall, the Public Safety and Human Services committee hearing was consistent with the principles of deliberative democracy. The members of the committee did deliberate on the merits of public policy, by listening to testimony and even making points and rebuttals of their own regarding the merits of the bill. As Bessette states, deliberative democracy also demands, however, that the representatives of the people share the basic values and goals of their constituents; their own deliberations about public policy must be firmly rooted in popular interests and inclinations Ibid. 36 Ibid. 37 Ibid. 38 Bessette, J. (1994). The Mild Voice of Reason: Deliberative Democracy & American National Government. (p. 2). Chicago: The University of Chicago Press. 12

13 Essentially, by taking testimony that revealed various constituent groups opinions on the issue of illegal immigration and S.B.1070, the committee was in fact attempting to hear the public s interests, values and goals. Furthermore, two of the three essential elements of deliberative democracy discussed by Bessette, information and argument were present. Bessette states, Reasoning on the merits of public policy requires at a minimum that serious consideration be given to pertinent substantive information on policy issues. Such information may include basic facts and figures on some social, economic or national security issue details and evaluations of current or past legislative or administrative policies (possibly including experiences at the state and local level or in other countries), and the content of those policies. 39 An example of this can be seen from both the opposition s testimony and those who supported the bill. For example, Alessandra Soler Meetze with the Arizona ACLU provided information, facts and figures on past policies and experiences other localities were facing with similar policies. On the other hand, Senator Russell Pearce also provided information on Federal District Courts who have supported state enforcement of federal immigration policy, along with information on 287g training. 40 By reading the points of all the testimony above, the information and argument requirements of the principles of deliberative democracy appear to be sufficiently satisfied. Senate Third Reading #1 Floor Vote. Before moving to the Senate for a vote, S.B was considered by both majority and minority caucuses in the Senate. 41 The Rules Committee approved the bill and the Pearce Floor Amendment, which addressed some of the language concerns in the Senate Public Safety and Human Services Committee. 42 The floor vote by the Senate took place on February 15, 39 Ibid, p Ibid, p Please note again that the scope of this paper is limited to analyzing the deliberative nature of the committees and floor debates/votes, not specifically the caucuses. The committee report that was sent to caucus can be viewed at 42 Please visit the Arizona State Legislature website to view the slight changes that were made to the bill via the Pearce Floor Amendment 13

14 2010 and was brief, lasting only two minutes and eighteen seconds. The majority of Senate, with seventeen ayes versus thirteen nays passed S.B and transmitted it to the House for consideration. 43 Even though no debate took place at this particular floor session, it does not discount that a deliberative process did occur. As stated above, the Public Health and Human Services Committee had already deliberated on the bill, passed amendments, and the bill was referred to both the majority and minority causes, before the Senate took its floor vote. This entails that a deliberative process occurred proceeding up to the floor vote. This being said, the floor debate does capture a principle of deliberative democracy, which is to promote the rule of deliberate majorities. 44 Also, the Senate Public Safety and Human Services Committee did file several reports and summaries, known as fact sheets that outlined the bill and amendments made, which were available the to both the caucuses and to the Senate before the floor vote. 45 These summaries and reports help provide information to fellow legislators on the committee s work and the recommendations. Regarding this point, Bessette states, The committee s obligation to explain and justify its actions through a formal report to the full body signifies the deliberative aspect of the division of labor affected through the committee system. In principle, the committee does merely act, or will, for the parent body, but reasons, or deliberates, for it. 46 Based on the committee deliberations and the filed report, it appears that a deliberative process did in fact occur in order for the Senate to take this floor vote. 41%2Edoc%2Ehtm. 43 Senate Third Reading Bill Video Archives for S.B Arizona State Senate, Forty-ninth Legislature, Second Regular Session. Retrieved October 29, 2010 from: 44 Bessette, J. (1994). The Mild Voice of Reason: Deliberative Democracy & American National Government. (p. 3). Chicago: The University of Chicago Press. 45 Bill Summaries and Fact Sheets for S.B Senate Public Safety and Human Services Committee: For Caucus and Floor Action. Arizona State Senate, Forty-ninth Legislature, Second Regular Session. Retrieved October 29, 2010 from: 46 Ibid, p

15 House Military Affairs and Public Safety Committee. The second version of S.B was transmitted to the House directly after the Senate floor vote, on February 15, On March 23, 2010, the first reading of the bill occurred in the House and on March 24, 2010, the second reading occurred. The bill was assigned to both the House Military Affairs and Public Safety Committee and the House Rules Committee on March 23, On March 31, 2010, the Military Affairs and Public Safety Committee held their hearing, which consisted of testimony from individuals and organizations, as well as debates between members on the merits of the bill. In total, fourteen people spoke on the bill, six in favor and eight opposed. Out of the six who spoke in favor, four were legislators and two were individuals providing testimony. Of the eight who spoke in opposition of the bill, two were legislators and six were individuals providing testimony. This hearing lasted three hours and twenty-seven minutes. 47 The hearing began with the committee moving to pass a recommendation on the bill, which encompassed a strike-everything amendment that members of the committee drafted before the hearing, which was very similar to underlying version of the bill. This was introduced by Rene Gene, a member of the Majority Research Staff in the Arizona State Legislature. Gene affirmed that the striker did result in a very similar bill and that the changes to the bill included the following points: (1) a status of an individual is to be determined before they are released; (2) upon implementation of the bill, race, color or national origin cannot be solely considered; (3) that an Arizona driver s license, non-operating identification card, a tribal enrollment I.D. or other tribal forms of identification or a federal, state or local I.D. may be considered valid; (4) changed the trespassing clause to willful failure to comply to carry an identification card or alien registration document; (5) that it would not be considered transporting, concealing or harboring an illegal alien if the purpose of transports was done for a 47 House Military Affairs and Public Safety Bill Video Archives for S.B Arizona State Senate, Forty-ninth Legislature, Second Regular Session. Retrieved October 29, 2010 from: 15

16 medical or health emergency; (6) clarifies that the act is not to be construed to implement the Real I.D. Act. 48 With these changes being stated, the sponsor of the bill, Senator Russell Pearce spoke before the committee. Pearce began this time speaking about Rob Krentz, the Arizona Rancher who recently lost his life at the hands of an alleged illegal immigrant. Pearce went on to reiterate his comments that he shared before the Senate s Public Safety and Human Services Committee. Republican House Representative Seal (who ended up supporting the bill), commented that regarding arrest, his concern was that an individual s loss of liberty could occur if he in fact had legal status, but it could not be determined at the time of an arrest. Senator Pearce stated that if someone is lawfully in the state, one call to ICE would resolve that issue. Other House members raised a few concerns as well. For example, Republican Representative Reeve (who also supported the bill) posed the question of what would happen to an individual if he was lawfully in the country or state, but was waiting on his paper work. Democrat House Representative, Pat Fleming also raised similar concerns. 49 Most of the debate actually took place between Senator Pearce and Democratic House Representative and committee member, Krysten Sinema. Throughout the hearing, Representative Sinema raised many concerns about the bill s language, such as the possible loss of liberty issue, protection for victims and witnesses when reporting a crime (this is based on the notion that an illegal alien may not report a crime if he or she fears being detained and subsequently deported), the ability of law enforcement to transport an alleged illegal alien outside of their jurisdiction, guidelines for determining status, the language that allows an individual to sue if he feels that an officer and/or 48 Ibid. 49 Ibid. 16

17 agency was not enforcing federal immigration legislation to the fullest extent of the law, and, overall, that enforcing immigration law was the sole responsibility of the federal government. 50 As mentioned above, outside testimony was heard from organizations on both sides of the issues. For example, Dale Wiebusch with The League of Arizona Cities and Towns spoke out against the bill, stating that local law enforcement in Arizona already collaborated with ICE and so there was no need for the bill. Once again, John Thomas with the Arizona Chief of Police spoke against the bill stressing his concerns with the language that would allow an individual to bring suit against a law enforcement agency. 51 Ron Johnson, with the Catholic Conference spoke against the bill, expressing the concern the organization had with provisions in the bill that they felt did not do enough to protect witness or victims in reporting a crime. Once again, Jennifer Allen, with the Arizona Border Action Group spoke out in opposition of the bill and argued that S.B would not fix the state and federal government s broken immigration system, but only cause problems through expensive litigation. Fr. Glenn Jencks with Valley Inter Faith also emphasized that the bill would bring forth legal challenges. Finally, Tom Landfree with the Arizona Employers for Immigration Reform, argued that to pay for the enforcement of S.B. 1070, taxes could potentially increase and that it could create a negative incentive for business. 52 As noted above, out of the six individuals who spoke in support of the bill, two were not members of the Arizona State Legislature. One of these individuals was Mr. Levy Bolton of the Phoenix Law Enforcement Association. Levy Bolton attempted to address the concerns about law enforcement s ability to quickly determine the status of someone who may not have identification on him. He assured the committee that this type of scenario happens daily with law enforcement and all it entails is making 50 Ibid. 51 Ibid. 52 Ibid. 17

18 a quick phone call to ICE or the proper federal authority. He shared that he served as a police officer for thirty-two years and conducted approximately three hundred of these types of incidences and that not once did he make a mistake and not once did someone lose any of his liberty unnecessarily. Mark Spencer with Phoenix Police Department spoke on the bill s behalf, once again emphasizing the law enforcement officers who had lost their lives at the hands of illegal immigrants in Phoenix. 53 At the end of the testimony, Senator Russell Pearce was once again given time for a rebuttal to address some of the claims in the testimony. Senator Pearce and Representative Sinemea engaged in debate on the language of the bill, specifically on the issues of training and law suits. Once this concluded, the committee passed the bill by a vote of five to three. 54 This particular committee session did demonstrate principles of deliberative democracy and strategies. There was for example, a significant effort by those participating to challenge claims made by others. As noted above, several of those who spoke out in opposition to the bill discussed their concerns about the potential for people to bring forth lawsuits. In an effort to challenge this claim, Russell Pearce and Mr. Spencer of the Phoenix Police Department argued that the clause in the bill was made in an effort to give law enforcement more discretion to contact ICE. 55 Mucciaroni and Quirk argue that this kind of exchange helps to foster better information. They argue that an effort to challenge information provides an attentive listener some protection from being misled. 56 Furthermore, Mucciaroni and Quirk also discuss how the element of time can help foster more informed debate. Perhaps the strongest predictor of how well Congress informs it audience is simply how much time it spends discussing an issue. If legislators spend more time debating an issue, they also make 53 Ibid. 54 Ibid. 55 Ibid. 56 Mucciaroni, G. & Quirk, P.J. (2006). Deliberative Choices: Debating Public Policy in Congress. (p. 181). Chicago: The University of Chicago Press. 18

19 more supportable claims. 57 This particular committee spent the most time deliberating over S.B than any other committee or floor debate that occurred. 58 As a result of the House Military Affairs and Public Safety Committee hearing, the strikeeverything amendment (essentially the second version of the bill) was adopted with a do pass recommendation. Once again, the essence and underlying purpose of the bill stayed the same. 59 The committee also filed several reports and summaries that outlined the amendment made. 60 House Rules Committee. On April 5, 2010, S.B was presented before the House Rules Committee. This particular session lasted four minutes and seventeen seconds. The Rules Committee agreed that S.B as amended by the Military Affairs and Public Safety Committee was constitutional and in proper order and therefore, moved for the bill to be voted on the House floor. 61 Even though no deliberation or debate took place in the House Rules Committee on the amendment version of S.B. 1070, it does not mean that it was lacking in the deliberative process. Receiving a do pass recommendation by the Military Affairs and Public Safety Committee, the bill was following the proper legislative course by being sent to the House Rules Committee, where it s form and 57 Ibid, p House Military Affairs and Public Safety Bill Video Archives for S.B Arizona State Senate, Forty-ninth Legislature, Second Regular Session. Retrieved October 29, 2010 from: 59 Please note that it is not practical to specifically list the full amended bill by the Committee on Military Affairs and Public Safety. The full amended bill can be viewed through the Arizona State Legislatures website: Committee on Military Affairs and Public Safety: House Representative Amendments to S.B Arizona State Senate, Forty-ninth Legislature, Second Regular Session. Retrieved October 29, 2010 from: %2Dmaps%2Edoc%2Ehtm. 60 Bill Summaries and Fact Sheets for S.B Arizona State Senate, Forty-ninth Legislature, Second Regular Session. Retrieved October 29, 2010 from: 61 House Rules Committee: Bill Video Archives for S.B Arizona State Senate, Forty-ninth Legislature, Second Regular Session. Retrieved October 29, 2010 from: 19

20 constitutionality were verified. Once that process was over, the bill was sent to both the House Majority and Minority Caucus on April 6, 2010, just before the House s floor debate and vote. 62 House Committee of the Whole #1 Floor Debate. The amended version of the S.B moved to the House floor on April 13, During this debate the Military Affairs and Public Safety Committee strike-everything amendment was considered, along with a new item, the Biggs Floor Amendment. Republican House Representative, Andy Biggs had worked with several other legislators on additional changes to the bill and proposed they be adopted on the floor. This debate lasted thirtyone minutes and fifteen seconds. During the debate four members of the House spoke in favor of the proposal and two spoke in opposition. 63 The debate started with Representative Biggs explaining his amendment. He explained that the amendment did the following: (1) reinserted the language regarding harboring and shielding; (2) clarified that only an Arizona residence can bring an action or claim against sanctuary cities; (3) clarified that the bill is not an attempt to enforce the Real I.D. Act; (4) allows law enforcement discretion to determine when it is practicable to determine immigration status and whether determining status will hinder or obstruct an investigation and if so, then the officer is alleviated from having to determine status; and (4) the amendment would remove the requirement that rural counties must immediately transport unlawful aliens to U.S. Customs and Border Patrol agents Again, please note that this purpose of this paper is to closely examine the committee hearings and floor debates/votes, which are video archived on the State of Arizona Legislature s website; therefore, the deliberation that occurred in the caucuses is not being analyzed; nor is a complete report of all the various caucuses and their activities available. The report that was sent the House Majority and Minority Causes can be viewed via the Arizona State Legislature s website at 63 House Committee of the Whole: Bill Video Archives for S.B Arizona State Senate, Forty-ninth Legislature, Second Regular Session. Retrieved October 29, 2010 from: 64 Ibid. 20

21 Once the amendments were clarified, debate began. Representative Sinemea raised opposition on what she referred to as constitutional issues. She argued that it was solely the federal government s responsibility to enforce immigration policy and that S.B brought forth an unfunded mandate to the State of Arizona to enforce immigration policy. Democratic Representative Ben Miranda also spoke against the bill, arguing that it would not see implementation, because of the law suits that will be brought against it and claimed that the proposal also did not prioritize what types of crimes the law would go after. Lastly in opposition, Democratic Representative Tom Chabin argued that the bill was morally wrong and demonized immigrant labor. 65 Speaking in support of the proposal, Representative John Kavahagh argued that if the legislature did not pass this bill, then illegal immigration would still be a problem and urged his colleagues to support the proposal. In support, Republican Representative Debbie Lesko claimed that two years ago illegal immigration was the number one issue to her constituents and that this year it is as well. Republican Representative Ray Barnes argued in support of bill, sharing that he had a Haitian daughter and chose to get her to Arizona legally. 66 Finally, Representative Biggs reiterated the points of his amendment and cited Gonzales v. Peoria, a case in which he stated the 9 th Circuit Federal Court upheld that local police had a right to arrest an illegal alien in violation of criminal provisions under state law. 67 The House then moved passed the amendments by voice vote and moved the bill to a final floor vote in the House. 68 Again, this process does entail principles of deliberative democracy. For example, through this floor debate the elements of problem solving and analysis were present. Bessette argues that these 65 Ibid. 66 Ibid. 67 Ibid. 68 Ibid. 21

22 elements are important components of deliberate democracy. 69 This debate addressed various social and economic issues, such as the concern about the possible financial cost to train officers, which types of crimes police would prioritize and the cost of potential law suits. Representative Biggs also took the time at the outset of the debate, to demonstrate how his amendment attempted to resolve some of the issues that were of concern in committee, such as the officer s ability to utilize discretion when determining when it is practical to inquire into a person s immigration status. 70 This debate took the time to examine the political, social and economic problem of illegal immigration in Arizona and put forth possible solutions. House Third Reading#1 Floor Vote & Explanation of Votes. Immediately after the Biggs and the House Military Affairs and Public Safety amendments were adopted by the House Committee of the Whole, it went to a floor vote. During this time, both members of the House had the opportunity to explain their vote before formally casting it. This demonstrated that they still debated on the issues and merits of the bill and urged their colleagues to either vote in support or opposition. This particular floor vote took one hour, twenty minutes and twelve seconds. A total of sixteen members of the House of Representatives decided to provide an explanation of their vote, nine of whom supported the bill and seven of whom were opposed. 71 Due to the number of legislators who explained their vote and the similar reasons they gave either in support or in opposition, only a few examples will be discussed here (please see appendix three for a full list of all Representatives that explained their vote). One of the supporters that explained their 69 Bessette, J. (1994). The Mild Voice of Reason: Deliberative Democracy & American National Government. (p. 46). Chicago: The University of Chicago Press. 70 House Committee of the Whole: Bill Video Archives for S.B Arizona State Senate, Forty-ninth Legislature, Second Regular Session. Retrieved October 29, 2010 from: 71 House Third Read#1: Bill Video Archives for S.B Arizona State Senate, Forty-ninth Legislature, Second Regular Session. Retrieved October 29, 2010 from: 22

23 vote, Representative Cecil Ash, argued that she believed that the bill s sponsor, Senator Russell Pearce, had addressed the issues that had been of concern to people and he had worked with many groups in changing the relevant language of the bill. Republican Representative Russell Jones also discussed this point and emphasized Senator Pearce s efforts. Republican Representative Stevens urged his colleagues to vote for the bill and insisted that it was a step in the right direction. Republican Representative Biggs argued that those who were in opposition to the bill failed to demonstrate evidence of why it should be opposed and have played on prejudice, fear and hate. 72 Those explaining their vote in opposition also shared similar reasons. Democratic Representative Sinema, once again rose in opposition of the bill, explaining that she could not vote for it, because it violated the equal protection clause of the Fourteenth Amendment and that the enforcement of immigration law was a federal issue. Democratic Representative, Chad Campbell explained he was voting no, because he too felt that immigration enforcement was a federal issue. Democratic Representative Daniel Patterson also expressed similar reasons for voting against S.B and reminded the House that several organizations, such as the Arizona Association of Chief of Police, Valley Interfaith Project and The League of Cities and Towns opposed the bill. 73 After these legislators provided their explanations, the floor vote concluded and S.B passed with thirty-fives ayes, four no votes and twenty-one nays. From this point, the bill (no in its third and final version) was transmitted to the Senate for a final vote. This process demonstrates that by the time the floor vote occurred, the House did deliberate on the merits of the bill, addressed their concerns and the concerns of various constituencies. In the end 72 Ibid. 73 Ibid. 23

24 the deliberative majority prevailed in passing the bill. 74 Also, there did appear to be shared goals among the majority of the legislators. For example, those in the House supporting the bill truly believed that enforcing federal immigration law was what was best for Arizona and collaborated with the lead sponsor and other members, to address concerns and create what Russell Pearce referred to as a better bill. 75 Bessette also discusses collaboration and effort as an element of deliberative democracy when he states, Collective deliberation, however, necessarily requires some sharing of goals, purpose, or values. If legislators are to reason together about the merits of public policy, there must be some common ground for the arguments and appeals essential to deliberation. 76 Senate Final Reading #1 Floor Vote & Explanation of Votes. Once the floor vote took place in the House on April 13, 2010, S.B was immediately transmitted to the Senate. On April , the bill went to both the Senate Majority and Minority Caucuses. 77 On April 19, 2010 the Senate voted on the bill and fifteen Senators provided explanations for their vote, nine of whom supported the bill and six of whom were opposed. Because legislators gave similar reasons for supporting or opposing the bill, only a few examples will be discussed below (please see appendix four, for a full list of all Senators that explained their vote). At the end of this floor vote, S.B passed through the Senate with a vote of thirty-five ayes, four not present votes (no votes) and twenty-one nays. 78 In support, Republican Senator, John Huppenthal explained that by following good policy the Phoenix Police Department had seen the murder rate cut in half over the last year and that he viewed 74 Bessette, J. (1994). The Mild Voice of Reason: Deliberative Democracy & American National Government. (p. 3). Chicago: The University of Chicago Press. 75 House Military Affairs and Public Safety Bill Video Archives for S.B Arizona State Senate, Forty-ninth Legislature, Second Regular Session. Retrieved October 29, 2010 from: 76 Bessette, J. (1994). The Mild Voice of Reason: Deliberative Democracy & American National Government. (p. 48). Chicago: The University of Chicago Press. 77 Bill Summaries and Fact Sheets for S.B Arizona State Senate, Forty-ninth Legislature, Second Regular Session. Retrieved October 29, 2010 from: 78 Ibid. 24