— Sen. John Barrasso (R-Wyo.), in an interview on NBC’s “Meet the Press,” March 7
Every Senate bill that proceeds on a fast-track process known as reconciliation features a strange ritual called “vote-a-rama,” as lawmakers race through a number of votes on amendments. If you are in the minority, as Republicans are now, it’s a moment when you can offer finely tuned amendments that are destined to fail but will serve up red meat for voters in later elections.
These quotes are an example of this process in action, with Cotton tweeting a talking point just hours after the coronavirus stimulus bill was approved. Cotton isn’t shy about his intentions either. On March 8, he tweeted that Dzhokhar Tsarnaev, the Boston bomber, would also get benefits and declared, “Get ready for campaign ads.”
But for all the hype, there’s less to these claims than one might imagine — particularly because the previous stimulus bills passed last year under GOP control also did not bar payments to prisoners and the small subset of undocumented immigrants referenced by Barrasso.
People in prison
Let’s start with the prison claim. At issue is an amendment offered by Sen. Bill Cassidy (R-La.), which would have denied stimulus checks to any person if the treasury secretary has knowledge that an individual has been imprisoned. The criteria was based on categories listed in a 2009 law that suspends Social Security benefits for people in prison.
A similar amendment was offered — and defeated — during the Feb. 5 vote-a-rama on the budget resolution.
Spokespeople for Cotton and Barrasso both noted that a federal judge last year paved the way for prisoners to get checks, after she blocked the Internal Revenue Service from implementing rules that would have blocked payments to incarcerated people. The stimulus bills have excluded some people: nonresident aliens, an estate or trust and people who are dependents on someone else’s tax return. But the law did not exclude payments to incarcerated individuals, so the judge said the IRS could not rewrite the law on its own after it had already issued payments to people in prison.
The GOP spokespeople argued that the amendments were an effort to fix an issue created by the judge’s ruling.
Cotton made the same point in a Twitter thread: “This was a problem. Congress (or at least Republicans) did not intend to send prisoners serving life sentences stimulus checks as part of CARES.”
But prisoner advocates say this is just theater.
“The two previous stimulus bills [CARES and the Consolidated Appropriations Act] had the exact same eligibility requirements as this bill, and Tom Cotton voted for both of them,” said Kelly Dermody, managing partner of San Francisco-based Lieff Cabraser Heimann & Bernstein, one of the law firms that acted on behalf of prisoners. “The judge’s ruling in our case merely pointed out that the IRS had acted wholly arbitrarily in applying its own eligibility criteria that were different from the clear eligibility language [approved by Tom Cotton] of the CARES legislation. The current bill is status quo, not different.”
Dylann Roof has been in prison since 2016 and presumably would earn little or no income. But he or any other prisoner could file a form with the IRS that they had no income but were eligible for a payment, prisoner advocates said. But it has been difficult for many people in jail to receive payments. The IRS started to send people prepaid debit cards, which cannot be used in jail and often are seized by prison authorities.
The difficulty of getting payments to prisoners also underscores how difficult it would be for the Treasury Department to determine whether people receiving payments met one of the conditions set in the Social Security law.
In arguing against the amendment during the floor debate, Sen. Richard J. Durbin (D-Ill.) noted that more than just prisoners would be affected. “This amendment will cause harm to the families of incarcerated individuals, joint filers who would receive only half of the payment that the families are owed while the spouse is incarcerated,” he said. “Given the stark racial disparities in our criminal justice system, this would cause the most harm to Black and Brown families and communities already harmed by mass incarceration.” He also said the Social Security legislation “has a safety valve giving discretion to allow payments to persons because of mitigating circumstances,” which was missing in the proposed amendment.
The new stimulus bill and the previous ones all denied benefits to “any nonresident alien individual.” But Republicans claim that this language left open a loophole that they tried to close with an amendment offered by Sen. Ted Cruz (R-Tex.). This amendment provided that no “alien who is not lawfully present” in the United States should receive any payments.
What’s the difference? You need a Social Security number to get a stimulus payment and virtually no undocumented immigrants have Social Security numbers. But Bronwyn Lance, Barrasso’s communications director, said that people who arrive in the United States on work visas can obtain Social Security numbers — and so if they overstay their visas, they could obtain a stimulus payment.
This appears to be a rather small universe of people. A 2019 report by the Department of Homeland Security shows that 67 percent of visa overstays are tourists who arrived in the United States for business or pleasure. The report does not break down how many people overstay temporary work visas, but those visas are part of a category with a relatively small percentage of overstays.
“It doesn’t matter the amount of people or why they came,” Lance said. “The fact is the vote was against even a single illegal immigrant receiving the check.” She noted that when a similar amendment was offered during the budget resolution debate, eight Democrats supported it. But then none did so during the most recent vote-a-rama.
As with the previous prisoner amendment, it is unclear how the IRS would be able to determine whether someone filing a tax return with a Social Security number had overstayed his or her work visa.
One change in the latest stimulus bill is that it does not penalize family members with an Individual Taxpayer Identification Number (ITIN) — someone who is required to file a tax return even if they do not have a Social Security number, such as a dependent or spouse of a nonresident alien visa holder. Previously, U.S. citizens could have been denied a stimulus payment if a spouse or parent filed a tax return with an ITIN.
“In the current bill, there is no ‘marriage penalty’ for having a family member that files taxes with an ITIN, as existed in the Cares Act,” said Jackie Vimo, a policy analyst at the National Immigration Law Center. “But all three bills require the recipient of the EIP [Economic Impact Payments] to have a Social Security number.”
The Pinocchio Test
Both of these talking points lack significant context. Cotton and Barrasso claim Democrats are actively trying to give stimulus checks to murderers and undocumented immigrants. Not only is that wrong, but both voted for previous stimulus bills that did not have narrowed criteria. The goal was to get checks out as quickly as possible without burdensome regulations. It’s hard to craft rules that target mass murderers without also penalizing the families of people in prison for much less heinous crimes.
Barrasso did not resort to Cotton’s scaremongering, more carefully saying that prisoners might receive a stimulus check. But his immigration phrasing was misleading, as viewers might have thought Barrasso was talking about all undocumented immigrants. In fact, the amendment was aimed at a relatively small group, since virtually all undocumented immigrants do not qualify for payments.
Both of these talking points mainly are crafted for future campaign ads, not serious legislation. Cotton and Barrasso earn Two Pinocchios.
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