- The Washington Times - Tuesday, May 15, 2012

Illegal-immigrant students and some House Democrats sued the Senate this week to try to overturn the upper chamber’s filibuster rule, arguing that the 60-vote threshold applied to most major legislation 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. But courts have generally been reluctant to meddle in internal congressional rules, making it an iffy question whether it would ever get to that point.

Still, the effort mixes two thorny issues: immigration and the separation of powers — and is likely to help keep the former in the news through this year’s presidential election.

Plaintiffs argue that a 2010 vote on the Dream Act — legislation to legalize illegal-immigrant students and young adults brought to the U.S. by their parents — was illegal. 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, one of the plaintiffs, who went through college and law school and could benefit from the Dream Act. “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 the chamber’s tradition of extended debate. Lawmakers used to use that debate privilege to talk legislation to death, so the Senate came up with the “cloture” rule that, 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 major legislation is now assumed to need 60 votes to succeed. Many top nominations are also held to that same standard.

In the past decade, Republicans contemplated forcing through a rules change that would have outlawed filibusters of judicial nominations, but a bipartisan group of senators came together to head off that effort.

And the filibuster has proved popular with both Democrats and Republicans when they have been in the minority.

GOP-led filibusters have blocked all of Mr. Obama’s tax-increase proposals and stalled some of his nominations over the past two years.

In the case of the Dream Act vote in 2010, the filibuster was bipartisan: Five Democrats joined nearly all Republicans in voting to block the bill.

Now, Mr. Vargas and two other 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, 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., 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 have generally 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.

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 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’s changed its stance after a long review of the history of the practice.

• Stephen Dinan can be reached at sdinan@washingtontimes.com.

Copyright © 2023 The Washington Times, LLC. Click here for reprint permission.

Please read our comment policy before commenting.

Click to Read More and View Comments

Click to Hide