Common Cause challenges the Senate filibuster in court over Dream Act being blocked

A fight over who can be a U.S. citizen has turned into a question about who can make the rules in the U.S. Senate. The government watchdog group Common Cause is using the filibuster that blocked the Dream Act to challenge the way legislation is derailed in the Senate.

Erika Andiola was 11 when her mother brought her to the U.S. from Mexico. She grew up in Arizona, attended Arizona State University and joined the effort to pass the Dream Act. That’s the measure to put undocumented college students and members of the U.S. military on a path to U.S. citizenship.

When the House passed the Dream Act, Andiola figured the Senate would, too. "Everybody was talking about the Dream Act. I was really, really hopeful that something was going to happen. And it didn’t. It failed by only five votes."

Actually, what failed was the vote to end the filibuster that had blocked a floor vote on the Dream Act. A majority of senators — 55 — voted to end the filibuster, but you need 60 to do it.

Former Pennsylvania congressman Bob Edgar says a minority "can't hold hostage the nation's business." Edgar is the president of Common Cause. That group, along with three Dream Act students, is suing the U.S. Senate.

Edgar says filibusters stop the majority from getting the people’s business done. "In recent years," he said, "the filibuster has been used to stifle debate and action on a vast array of legislation passed by the House and supported by a clear majority of senators."

You’ve seen a filibuster at work — or maybe you think you have if you’ve watched Jimmy Stewart play an idealistic young politician trying to filibuster a bad bill in “Mr. Smith Goes to Washington.”

Senate Historian Donald Ritchie said Hollywood makes filibusters look very dramatic, "and it never happens that way." Ritchie said you don’t have to talk endlessly to stop a bill. The Senate has lots of ways to do it, and they fall under one general term. "A filibuster is any tactic that is used by a minority of the senators to stop a vote from happening."

The courts have stepped in before to tell Congress that its rules are wrong. In the late 1960s, the House of Representatives tried to kick out Harlem congressman Adam Clayton Powell over ethics violations.

Powell sued, arguing that the House could not exclude a member elected by the people. The House said it could — but, says Common Cause attorney Emmet Bondurant, "the Supreme Court of the United States held that the House had no such powers and ordered him seated."

Common Cause wants the court to knock out the Senate’s filibuster power because it violates the principle of majority rule.

Former U.S. ambassador and Pepperdine constitutional law professor Doug Kmiec said that's a nice academic theory. "The problem is that it’s not the kind of theory that the courts will take up easily."

Kmeic said it’ll be hard to show that filibustering the Dream Act harmed Common Cause. He said it was “smart lawyering” to add the students, but throwing out the filibuster still will be difficult, "because we’re talking about the hypothetical benefits under an act that was not enacted."

Senate Historian Ritchie said the founding fathers wanted a central government that was strong but not tyrannical. That’s why power is divided among three branches of government, why the legislative branch has two houses and why passing laws is often slow and frustrating.

"On the other hand," he said, "things do get done. Eventually they do. And what happens is because it takes so long, in the process you’ve built national consensus behind it."

Which means if the Common Cause lawsuit is not successful, dreamers like Erika Andiola will have to wait for national consensus on immigration reform.