Solving one of the nation’s most hotly debated issues – comprehensive immigration legislation – may hinge on a little-understood procedural rule that’s played an increasingly crucial role in Congress.
The filibuster is intended to protect the voice of the minority party in Washington. But several undocumented students were in federal court Monday charging senators with abusing a filibuster that, they say, unconstitutionally denied them “a path to American citizenship.”
Erika Andiola, 25, remembers sitting in the Senate gallery and feeling crushed two years ago when the Senate took up the DREAM Act, which would create a path to citizenship for many young undocumented students brought to the United States as children. A Republican-led filibuster derailed the bill despite majority support in the House of Representatives and the Senate.
“If it wasn’t for the filibuster, we’d have the DREAM Act,” said Andiola, who was brought to the United States from Mexico when she was 11 years old and was raised and lives in Arizona.
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Andiola paid the out-of-state tuition rate to study at Arizona State University. Motivated by her advocacy work, she hopes to return to college and study law or public policy.
Filibusters are a procedural tactic that lets the minority party block bills that lack the support of at least three-fifths of senators. Once rarely practiced, filibuster use has ballooned to more than 130 times in the first two years of President Barack Obama’s presidency.
Threats to filibuster by the minority party in the Senate have become so pervasive that no significant bill or presidential nominee that lacks the support of at least 60 senators is expected to pass.
Considering the deeply embedded emotions associated with immigration restructuring, attorneys and policy wonks expect it to be difficult to garner enough votes to overcome a filibuster on any legislation introduced for the estimated 11 million illegal immigrants that includes a “path to citizenship,” which some liken to amnesty.
“We need, in order for us to have immigration reform, not just the president,” Ben Monterroso, the national executive director of the advocacy group Mi Familia Vota, said at a news conference Wednesday. “We need 218 members of Congress. And we need 60 senators.”
While many Republicans are now rushing to join Democrats to develop a comprehensive plan, those who remain opposed will have a disproportionate influence over the debate, said Angelo Paparelli, a Los Angeles immigration attorney who’s the author of the Nation of Immigrators blog.
“When a small minority can overcome the will of a larger consensus, merely by obstruction tactics, the nation’s immigration policies and best practices are held hostage,” Paparelli said.
Senate Majority Leader Harry Reid, D-Nev., has vowed to change the filibuster rules, which he says Republicans have used to obstruct the legislative process. Among other possible changes, Reid would like to bring back the “talking filibuster,” which would require filibustering senators to take to the floor and go on record about their grievances.
Senate Minority Leader Mitch McConnell, R-Ky., counters that Reid is trying to “break the rules to change the rules.” Speaking from the Senate floor this month, McConnell said the Democrats’ “systemic effort to marginalize the minority” stood in contrast to the ideals of the Senate and American traditions.
Even Republican senators who are helping to lead the call for immigration revisions are resistant to changing the rules. Sen. Mike Lee, R-Utah, who’s part of a bipartisan group of senators who are discussing possible proposals, acknowledged that the filibuster can be seen as frustrating to those who are pushing specific legislation. But he dismisses accusations that the filibuster would block consensus on real change; it just depends on what’s finally introduced.
“I wouldn’t say that any and every immigration bill is going to be filibustered,” Lee said.
In American politics, policy typically changes incrementally. There have been very few times in our history when massive change took place in a single Congress, according to Ross Baker, a professor of political science at Rutgers University. A massive overhaul of the filibuster could have negative consequences for legislative procedure, he said.
Baker supports aspects of the talking filibuster proposal, but he cautions against reducing the emphasis on the supermajority, which he said forced compromise.
“It forces the majority to ask the minority, ‘What can we do to make you happy?’ ” he said.
Andiola joined with other undocumented students, along with four House Democrats and a nonpartisan citizen lobbying group, Common Cause, in filing a federal suit earlier this year against the Senate. They want the U.S. District Court in Washington to declare that the Senate’s filibuster rule is unconstitutional and violates the principle of majority rule.
Emmet Bondurant, Common Cause’s lead attorney, supports a revised filibuster rule that permits extended debate but guarantees a simple majority vote at the end of the day.
Lawyers for the Senate countered that it has a right to determine its own rules.
“This suit asks the court to do what no court has ever done – inject the judicial branch into the Senate’s internal deliberations and usurp the Senate’s power to determine its own rules and procedures,” the Senate lawyers say in their court filings.
The party in power, whether it’s Democratic or Republican, often sees the filibuster as an obstruction, an impediment to good legislation. But to those in the minority, the filibuster is a protection of their rights and can be used to slow down the legislative express train, Baker said. He added that even some Democrats “are a little queasy” about changing the filibuster rules because they might find themselves in the minority sooner rather than later.
“If you really want a perfect example of the old adage ‘Where you stand depends on where you sit,’ it would be the filibuster,” he said.