Many journalists, pundits, and pollsters still seem to be under the impression that the Senate's amnesty bill (S.744) requires illegal aliens to pay back taxes. It doesn't. When the bill was first being written, the idea of requiring illegal aliens to pay back taxes for the period they worked off the books was considered, but quickly abandoned.
In explaining his opposition to requiring back taxes as a condition for citizenship, Sen. Chuck Schumer (D-N.Y.) argued that it would "delay and prevent many, many people from coming out of the shadows." His position did not come as a surprise. Back in 1986 Schumer protected aliens who applied to that year's amnesty from having to pay back taxes even though a tax law passed the same year would have required such payments. As the Center for Immigration Studies explored in a recent report:
Approximately two weeks before IRCA was enacted, Congress enacted the Tax Reform Act of 1986 (TRA), a bill for which then-Rep. Schumer also voted. ...
[A provision in the tax bill] requires any alien applying for lawful permanent residence to provide information on whether he or she was required to file a federal income tax return for the "most recent three taxable years". The agency that collected this information (at that time the Immigration and Naturalization Service, or INS) was required to forward this information to the IRS. Since the IRCA amnesty applied only to aliens who had arrived more than four years before its effective date, virtually every illegal alien applying for permanent residence under IRCA would have been subject to U.S. tax filing obligations for the "most recent three taxable years". IRCA did nothing to relieve illegal aliens who qualified for amnesty from their obligations to file federal income returns and pay "back taxes".
Months after IRCA became law, Schumer wrote a letter to the Secretary of the Treasury, urging the government to "immediately" issue a regulation declaring that illegal aliens applying for amnesty were exempt from the tax law. But the IRS did not issue a regulation so Congress exempted aliens from the tax code provision in something called the "Technical and Miscellaneous Revenue Act of 1988". According to Schumer: "Obviously, we could not have a successful legalization program if by submitting an application an alien became vulnerable to an enforcement action by the IRS." Today's amnesty advocates share the same sentiment.
The Senate bill currently before Congress does not require amnesty applicants to pay back taxes for the years they have worked off the books. The only requirement in the bill is that illegal immigrants must iron out any existing problems they may have with the IRS. If the IRS has ever audited an illegal immigrant and requested payment of unpaid taxes, he or she would be required to pay them before receiving amnesty.
The reality is that the 45 percent of illegal immigrants estimated to be working off the books are not even on the IRS's radar and are highly unlikely to have ever been audited. There simply aren't any tax forms to audit. Of the remaining illegal immigrants, the number who have been audited by the IRS is also likely very small, simply because historically the IRS audits only about 1 percent of tax filers. The bill also does not address employers' federal payroll tax liability (e.g. Social Security and Medicare (FICA) taxes), nor does the bill address liability for state and local taxes.
Simply put, the current tax provision in the bill will not be of any consequence to the overwhelming majority of illegal immigrants who apply for the amnesty. But that hasn't stopped journalists, pundits, and pollsters from spreading misinformation.
In just the past month, newspapers large and small have been pushing amnesty by describing it as a plan that would require payment of back taxes. The Washington Post's Jennifer Rubin went after Sen. Ted Cruz (R-Texas) in a piece titled, "Cruz has it wrong, again" calling his opposition to amnesty "shoddy". Yet Rubin gets it wrong when she writes:
It's not amnesty, as he well knows, when immigrants have to pay a fine and back taxes.
Earlier in the month, another writer at the Washington Post, Erza Klein, lamented that it would be difficult for amnesty applicants "to pay back taxes and get the documents to verify past jobs".
A writer for The Atlantic recently cited "current provisions for new citizens to pay back taxes" without any explanation about how the provisions actually operate.
Then there are the smaller news outlets. A North Carolina publication claimed that the legislation "would fix the broken immigration system and require undocumented immigrants to pay back taxes". An Illinois publication claimed that the amnesty bill "would allow immigrants who entered the United States illegally to stay, provided they pay back taxes". An Alabama publication printed an op-ed from an activist and apparently didn't challenge her on the claim that the bill "requires those here without status to get in line, pay back taxes, pay fines of at least $2,000, and wait their turn behind everyone else to adjust their status." (All of her claims are problematic, not just the back taxes claim).
There also continue to be polls that ask Americans about their support for an inaccurately described amnesty. A writer for Politico authored an article on a poll conducted by the American Action Network, a pro-amnesty group that has spent more than $750,000 in ad buys on promoting the Senate bill, including one deceptive ad analyzed here. The Politico article did not challenge the poll's findings even though the questions asked of respondents included a reference to paying "current and back taxes". In other words, the pollster asked for a response to a hypothetical immigration bill that does not exist and will never exist under this Congress. Yet the findings are being used by advocates and lazy journalists to promote the current amnesty bill — one that differs greatly from the type of bill respondents had in mind.
An interesting column in the Wall Street Journal found that immigration surveys seem to be including this back taxes language (and other problematic language) as part of an effort to get results that show support for amnesty. As the Journal's Dante Chinni explained:
More than 50 percent of Democrats and Republicans, young and old, wealthy and poor, urban and suburban, white and nonwhite, support an immigration overhaul that provides a pathway to citizenship — as long as illegal immigrants "pay a fine, any back taxes, pass a security background check, and take other required steps."
Those 16 words, it turns out, are crucial to support for the bill. A separate question in the poll asked about a 'pathway to citizenship' without those conditions — and saw support plummet.
Put another way, including language about provisions that don't really exist in the Senate bill is helpful in creating polls that seem to show support for the Senate bill. Many of these polls are problematic not just because of the back taxes language, but also because they leave much to the imagination of the respondent. Respondents are obviously going to have different interpretations on what "take other required steps" means. It's a sly pollster's way of allowing respondents to "fill in the blank" with whatever they feel is necessary to get to "yes". And while it would be more accurate to describe the "pay a fine" provision as a "pay a fine that can be waived" provision, no pollsters seem to be that honest with their respondents. For an analysis of why many of the polled provisions are problematic, from "learn English" to "pass a background check", see our analysis here: "Five Myths about Amnesty for Illegal Immigrants in Senate Bill".
It would be nice if reporters and pollsters were a little more careful with how they describe the immigration bill currently before Congress.
