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.
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