Political News

Shutdown watch: What about 'enhanced fencing?'

Posted January 31, 2019 6:29 p.m. EST

— Cordial. Complimentary. And no closer to a bipartisan deal to keep the government open beyond February 15.

Every Republican on the conference committee considering funding for the Department of Homeland Security, in their opening statements, talked about a "comprehensive" border security plan that included barriers. Democrats outlined their opening offer, which had zero dollars for border wall, barrier, fencing or fencing repairs.

That was Day One of the conference committee designed to hammer out a bipartisan DHS funding compromise -- the measure at the center of the now years-long fight between President Donald Trump and Democrats over funding to build a wall on the southern border.

A day later, the expressed need for pragmatism and deal making gave way to the reality: Trump is insistent on a border wall. Democrats have no intention of giving him one. And at this point, things appear just as far apart as they were throughout the 35-day government shutdown.

Bottom line: Sixteen days until the next funding deadline and lawmakers -- even these appropriators on the conference committee who, left to their own devices, could probably reach a deal fairly quickly -- are no closer to an agreement than they were during the shutdown. Negotiations have now shifted behind the scenes, where staff talks are ongoing and attempting to find a pathway to a deal -- but still mostly stuck at the moment, aides in both parties say.

Where things stand: House Speaker Nancy Pelosi told reporters there would be no wall money in any final deal. Of any agreement reached by the conference committee.

Reality check: The conference committee doesn't have until February 15 to reach a deal. The conference committee has until February 8 to reach a deal -- or at least that's the timeline negotiators are working under to allow the House time to post the bill and vote, as well as the Senate. So for the actual deal deadline: think nine days for a deal, not 16.

The Democratic proposal

House Democrats outlined -- though did not release the full legislative text -- of what they consider their opening baseline for the negotiations. It's a proposal House Democrats have been working on for weeks, led by Rep. Lucille Roybal-Allard, a California Democrat and the chair of the Appropriations Homeland Security Subcommittee.

Among its key pieces:

Funding to hire 1,000 customs officersFunding for repair and infrastructure projects as ports of entry on the southern borderFunding to expand Customs and Border Protection air and water operationsFunding for new technology and equipment at mail processing facilitiesFunding for new imaging technology at ports of entryExpands funding for CBP related to migrants currently in custodyIncludes $0 for a border wall, barrier, fencing of fencing repairs

Are Democrats really going to stick to zero on border barrier money? Pelosi doesn't leave much room to hedge with this statement to reporters Thursday: "There's not going to be any wall money in the legislation."

That's as definitive as Pelosi has been since the government was reopened (though her position on the border wall has hardly been a secret given her unflinching opposition during the shutdown -- and long before).

But it was actually an exchange later in Pelosi's news conference that caught my attention. Pelosi was asked if she agreed with some of her colleagues that "enhanced fencing" should be on the table in the negotiations.

Pelosi responded by walking through the current natural impediments that exist on the border, including mountains, water, and fencing, including "Normandy fencing" -- or in other words, the X-shaped vehicle barriers that lined Normandy beach during the 1944 Allied invasion of France. Referencing Normandy fencing, Pelosi said: "If the President wants to call that a wall, he can call that a wall."

She continued, referencing the negotiators: "Is there a place where enhanced fencing, Normandy fencing, would work? Let them have that discussion." Her broader point was that the Democratic position would focus on both the cost-benefit and evidence side of any border security proposal.

So does that open the door to something? That's a question several GOP officials involved in these talks asked me shortly after Pelosi made her comments. But the broader point here is that Pelosi wants her members on the committee to see what, if anything, can be worked out. As to where they are on this?

CNN asked House Appropriations Committee Chairwoman Nita Lowey of New York whether zero barrier money, as it stands in their initial offer, was considered a non-negotiable for Democrats. Her response: "At this point, I'm certainly not going to give an answer to that question."

It's early. There are, as there have been throughout, ways to semantically give each side a win here. In fact, that has technically already occurred -- just last year.

Remember the Omnibus

The 2018 spending deal explicitly barred funds from being used to build a "wall." But it did allow $1.3 billion to be used to build fencing, including bollard fencing and to repair existing border barriers. Democrats made clear the bill did not explicitly include wall money, and therefore called it a win. Republicans made clear it did include funding for fencing and repair money for current border barriers, and called it a win (Ironically, the three-week continuing resolution the President signed to reopened the government included three weeks worth of that $1.3 billion in funding).

Then, the bipartisan Senate Appropriations Subcommittee on Homeland Security measure included $1.6 billion with the same restrictions on a literal wall, and with the same allowances on things like pedestrian fencing and repairs to deployed fencing along the southern border, including bollard fencing.

The $1.6 billion was actually the Trump administration's budget request, which the President later told lawmakers he didn't approve and fell far short of what he wanted. Hence the $5 billion, then $5.7 billion number he now uses.

A key caveat here: House Democrats opposed the bipartisan Senate DHS bill due to the $1.6 billion, and effectively took it off the table in December.

But the broader point here is that there are ways -- already demonstrated just last year -- that both sides can claim some level of victory. That has long been the only way most lawmakers and aides CNN has spoken to could see an actual "compromise" deal get done. But that's not where either side is at the moment. Time will tell whether there's any will to get there.

Democratic pressures

There are pressures from several fronts as the negotiations kick into gear, and one not to be overlooked comes from progressive freshmen Democratic Reps. Ilhan Omar of Minnesota, Alexandria Ocasio-Cortez of New York, Ayanna Pressley of Massachusetts and Rashida Tlaib of Michigan.

The group is circulating a letter, first reported by The Daily Beast, that calls for cuts to DHS funding and targets the department's actions in the Trump administration alleging "a number of agencies housed at DHS have abused their authority and the fidelity of public resources."

The letter, which also calls for increased oversight language and a prohibition on any funding transfers or reprogramming, continues: "The deal reached by the conference committee should not allocate any additional funding to this department or to the ICE and CBP agencies."

Where Republicans stand

Republicans didn't lay out -- or reference -- a specific proposal and several sources said part of the first meeting of the committee would be waiting to see where Democrats came down on any initial proposal. But all made clear a barrier needed to be in any final agreement.

"Our border patrol professionals -- those on the front lines -- tell us that a comprehensive approach is necessary," said Senate Appropriations Committee Chairman Richard Shelby of Alabama. "An approach that includes technology, infrastructure, personnel and physical barriers."

Multiple GOP conference committee members made clear Thursday that any final deal had to include wall or barrier funding. Wall money "has to be" in any agreement, Sen. Shelley Moore Capito, a West Virginia Republican, told CNN's Manu Raju. Any final deal "has to have barriers in there," Sen. John Hoeven, a North Dakota Republican, told CNN.

Republican staff has been working on several options -- and had been for weeks at this point -- to try and thread the needle on this issue. But a crucial element will be seeing if there's some, any, daylight from Democrats related to border barriers. Or else a path forward seems, in the word of one aide, "somewhere in the range of nonexistent to completely nonexistent."

Where Trump stands

Trump was not subtle -- on Twitter or in his public remarks -- about his expectations for any final deal. In short, low expectations are not exclusive to lawmakers and aides on Capitol Hill: "I'm not waiting for this committee and I've told a lot of people I don't expect much coming out of the committee because I keep hearing words that 'We'll give you what you want but we won't give you a wall,'" Trump told reporters. "And the problem is, if they don't give us a wall, it doesn't work."

But what Trump would accept, beyond his stated $5.7 billion for wall funding, appears to still be in question. Asked what his understanding was, Shelby, the top Republican negotiator on the conference committee, responded: "Good question. That's the central question here."

When asked why Trump hadn't told him the answer, Shelby responded: "Maybe he hadn't decided yet." He then paused, and added: "I can't believe I said that."

But Shelby's point, candid as it was, underscores a reality for Republicans -- the lawmakers and staffers working on the conference committee can work magic on a spending deal if given the greenlight to do so -- many are veterans of several past funding or fiscal crises and have no shortage of pathways out of a jam.

But there's little sense in deploying new proposals or options if the President will simply reject what they come up with on any given day, aides point out. It's a lesson learned multiple times over the last year -- first with the $1.3 trillion spending bill Trump almost vetoed, and then again when the President rejected the short-term spending bill the Senate passed unanimously in December, a decision that led to the shutdown.

About the President

Democrats (and many Republicans) want Trump to stay out of the current negotiations.

It's a big reason the idea for a White House meeting, which has been batted around for days, was shelved, CNN's Kaitlan Collins reported. But for Republicans, it's a catch-22. He needs to support -- publicly -- any deal for GOP leaders to comfortably back it. And then Trump needs to actually sign it.

"It's helpful for him to keep his distance on the actual talks right now," one Republican senator told me. "But it's not like this happens without him."

Of note: White House legislative affairs is very involved in what's happening on the Republican side of the conference committee. The White House doesn't have a representative on the actual committee -- given it's a committee of lawmakers, that's entirely normal -- but it's not like they're sitting on the sidelines here.

The scope of the deal

DACA. Debt ceiling. Budget caps. Language to effectively ban shutdowns. The creation of a new supercommittee or panel of outside experts to make recommendations that would then receive an up or down vote. There are a lot of things a lot of lawmakers have proposed should be involved in the current negotiations.

There is, at the moment, very limited appetite on the Democratic side for any of them, and most Republicans agree narrow is probably better than bigger, given the compressed timetable. Don't be surprised if these types of things ping back and forth into negotiations, particularly if things appear stuck, but they aren't really in play at the moment.

About the conference committee

From a technical standpoint, there are basically three ways a conference committee can work.

There can be a fully public conference committee, where lawmakers sit for hours, going title by title through the legislation they are conferencing, offer amendments, vote on those amendments and finalize an agreement. While much of the negotiating goes on behind the scenes, the actual legislating happens in public. This has become exceedingly rare.A conference that occurs entirely behind closed doors. This is the more utilized route in recent years -- away from the cameras and spotlight, bipartisan lawmakers on the committees hammer out deals and compromises to reconcile differing bills and get them across the finish line.The public-private option. This is essentially a few public meetings, where lawmakers provide opening statements and lay out their toplines for any negotiation, but the real work, trading of proposals and deal-making -- to the extent it occurs -- happens entirely behind closed doors.

The DHS bill conference committee is No. 3. In other words, the real work will be done behind the scenes, with a public meeting interspersed here or there.