Dream Act students sue to stop Senate filibuster

By Stephen Dinan

The Washington Times

Updated: 2:03 p.m. on Tuesday, May 15, 2012

Illegal immigrant students and members of the House sued the Senate this week to try to overturn the upper chamber's filibuster rule, arguing that the 60-vote supermajority requirement violates the Constitution and is blocking important legislation such as legalization for illegal immigrants.

If successful, the lawsuit, filed Monday, would rewrite the way the Senate operates — though courts generally have been reluctant to meddle in internal congressional rules.

Still, the effort mixes two thorny issues in separation of powers and immigration, and is likely to keep the Dream Act at the forefront of the national debate. The bill would legalize illegal immigrant students and young adults who were brought to the U.S. as children and who are seen as among the toughest cases in the immigration debate.

In late 2010, the Dream Act passed the House but was blocked from action by a filibuster in the Senate. The 55-41 vote fell five shy of the 60 needed to overcome a filibuster.

"The filibuster is exactly that — it's a rule that's crippled our system of government. Undocumented youth, perhaps like no other group, understands about the legislative process," said Caesar Vargas, an illegal immigrant who went through college and law school and could benefit from the Dream Act legalization bill. "We have lived it; we have shed tears for it. And we have seen a minority able to cripple dreams."

The filibuster is not found in the Constitution, but rather is a Senate rule that stems from its tradition of extended debate. Lawmakers used to use that extended debate privilege to talk legislation to death, so the chamber came up with the "cloture" rule, which, after several changes, now allows debate to be cut off if 60 of the 100 senators vote to do so.

Use of filibusters has grown dramatically in recent years as the minority party has turned to it repeatedly — so much so that every piece of legislation is now assumed to need 60 votes to succeed.

Three Dream Act-eligible students are suing, along with four Democratic members of the House and Common Cause, a group that pushes for campaign finance restrictions.

Their suit names Vice President Joseph R. Biden Jr., who is president of the Senate, and three top officers of the chamber: the secretary of the Senate, the parliamentarian and the sergeant-at-arms.

The members of Congress said the Senate filibuster rule hurts them by diluting the power of their vote.

"It invalidates my vote for significant legislation favored by the majority," said Rep. Henry C. "Hank" Johnson Jr., a Georgia Democrat who is part of the lawsuit. "This is not right and it is definitely not fair. The filibuster is no longer useful, and it needs to go."

Courts generally have deferred to the chambers of Congress to set their own rules, and it's not clear that the federal judiciary would want to intervene in this case either — though no challenge to the filibuster has reached the Supreme Court.

"The history of this kind of litigation is the courts have stayed away from the merits of the filibuster. They tend to find just on different grounds reasons not to consider the merits," said Michael J. Gerhardt, director of the Center for Law and Government at the University of North Carolina School of Law.

The lawsuit was filed in the U.S. District Court for the District of Columbia.

Asked about the likelihood of courts taking the case, Emmet Bondurant, the lead attorney in the case, pointed to Supreme Court decisions overturning the line-item veto and about how Congress chooses to seat its members as evidence the court will rule on internal congressional matters.

Common Cause is leading the lawsuit. The group used to strongly support the filibuster rule but said it has changed its stance after a long review of the history of the practice.

"Quite simply, we were wrong then, and we are convinced we are right now," said Bob Edgar, president and CEO of Common Cause.

Dream Act students sue to stop Senate filibuster - Washington Times

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Why We’re Suing the Senate Over the Filibuster
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By: Bob Edgar

May 14, 2012 9 Comments

I spent 12 of the most interesting years of my life in Congress and I grew to love the place. I was fortunate to work with people of good will and good ideas in both political parties; service was particularly satisfying when we were able to cross Washington’s partisan divide to help move the country forward.

Sadly, those moments are rare these days. Ideological purists in both parties appear to have taken control of Congress and of the national dialogue. Voices of moderation and conciliation are being drowned out on the airwaves and inside the Capitol; critical problems are going unaddressed.

Things are especially bad in the Senate. Both parties have figured out that the minority, currently the Republicans, can use the filibuster rule to pretty much shut the place down.

Here’s how the obstructionists work. To begin debate on a bill, senators must first adopt a “motion to proceed.” But debate on that motion, as on most everything else that comes before the Senate, is unlimited unless at least 60 senators vote to end it. That means a minority of as few as 41 can block any action simply by refusing to permit a vote on the motion to proceed.

Thus the filibuster does not extend debate, which is its supposed purpose. Instead, it stops debate.

» Want to help restore order to the Senate? Sign our petition to show that Americans are fed up with the filibuster.

In recent years, filibusters have prevented senators from acting on presidential nominations for judgeships and other offices, as well as bills to hold down interest rates on student loans, force the rich to pay their fair share in income taxes, and end tax subsidies to oil companies. Rather than debating bills and exchanging ideas on the floor, in view of the public and press, senators are pushed by the filibuster into back room deal-making sessions to get a vote on even the most routine legislation .

When the 111th Congress opened last year, the filibuster rule even denied my friend Sen. Tom Udall a chance to make the case for filibuster reform to his colleagues; the minority used the filibuster rule to block discussion on Udall’s proposal to change the rule.

Simply put, that’s unacceptable. It’s an affront to our democracy and not the way the Senate was supposed to work. And it has real consequences for real people.

That’s why Common Cause is filing suit today to stop it. [Download and read our legal complaint as a PDF.]

Our lawsuit argues that the Constitution sets out super-majority requirements only in special cases, to override a presidential veto or ratify a treaty, for example. It does not permit the Senate to require more than a simple majority just to begin debate; and the Supreme Court already has said that a legislative body’s rules cannot conflict with the Constitution.

Congressional plaintiffs in our suit include Reps. John Lewis, D-GA, Michael Michaud, D-ME, Hank Johnson, D-GA, and Keith Ellison, D-MN.

Our other plaintiffs are three young people who recently put themselves through college, graduating with honors, after being brought toAmericaby immigrant parents. They are eager to assume the rights and responsibilities of adulthood and of U.S.citizenship; one even wants to join the brave Americans who daily put their lives on the line in the Marine Corps.

But their path ahead has been blocked by the Senate’s refusal to debate and vote on a bill, the DREAM Act, that has passed the House and is supported by a majority of senators.

The filibuster also is denying justice to tens of thousands of Americans. Twelve of President Obama’s nominees for vacant federal judgeships, all with bipartisan support and nominated in states where the backlog of pending cases is so large that court administrators have declared a “judicial emergency,” are being kept off the Senate floor by filibustering senators.

We had hoped that an agreement worked out by Sens. Reid and McConnell, the Senate Democratic and Republican leaders, at the beginning of this Congress in January 2011 would go a long way toward solving the filibuster problem. The Reid/McConnell arrangement has had little effect however, and the Senate remains too often hamstrung.

Open and at times extended debates are a Senate tradition worth preserving. There is no basis for the claims, made by some filibuster defenders, that reform of the filibuster rule would permit the majority in the Senate to run roughshod over the minority. In today’s Senate, it’s the few who are running roughshod over the American people. If the Senate won’t address the problem, the courts must.


Why We’re Suing the Senate Over the Filibuster | CommonBlog

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