Dream Act students sue to stop Senate filibuster

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 an 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 ofthe 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.