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Long-shot lawsuit gives voice to frustration

It’s the least hale of the Hail Marys: A lawsuit brought by four congressmen, three would-be U.S. citizens and Common Cause to force the Senate to abandon the time-honored dilatory tactic of the filibuster.

The central claim is that a pair of laws — the DREAM Act, which would allow the children of illegal immigrants a pathway to citizenship if they attend college or serve in the military; and the DISCLOSE Act, which would require greater transparency in political donations — would have passed if not for the filibuster. As a result, those who would have benefitted from those laws were harmed.

But Boyd Law School constitutional law professor Sylvia Lazos says none of the plaintiffs can prove they were directly harmed, so they lack standing to sue in the first place. Not only that, she said, but the Constitution allows the Senate to adopt its own rules, and separation of powers makes courts reluctant to intrude.

“It’s their prerogative to be deadlocked,” she explained.

But the lawsuit carries the tone of frustration felt across the country by the Senate practice of requiring 60 votes in order to end debate on a subject and get on with an up-or-down vote. In effect, it means you need 60 votes to pass a bill.

“Actual or threatened filibusters (or objections to the commencement of debate which are the functional equivalent of the filibuster) have become so common that it is now virtually impossible as a practical matter for the majority in the Senate to pass a significant piece of legislation or to confirm many presidential nominees without the 60 votes required to invoke cloture,” the lawsuit reads.

Not only that, the lawsuit says the rule also effectively upsets the concept of checks and balances “… by giving a dissident minority in only one house of one branch (the legislative branch) the power to create gridlock, cripple and impede the effective functioning of not only the legislative branch, but also the executive and judicial branches of government by preventing the president from filling hundreds of vacancies in both the executive and judicial branches.”

While members of both parties have used the filibuster rule — usually when they’re trapped in the minority — the lawsuit makes it clear that filibusters have been used more since the election of President Barack Obama than at any other time in history, 137 of them during the two-year 111th Congress alone.

Ironically, one of the filibuster’s chief champions — our own U.S. Sen. Harry Reid — took to the Senate floor recently to decry the practice, saying he should have listened to younger senators who wanted to change the rules.

“If there were anything that ever needed changing in this body, it’s the filibuster rule, because it’s been abused, abused and abused,” Reid said. And he knows whereof he speaks!

While the lawsuit may be thin gruel legally, it does point out a growing and understandable frustration.

Our system of government — itself the product of an intense argument that finally was resolved in the Constitution — was meant to be slow to change and not subject to radical shifts.

But it was never intended to be immune to all change. Our arguments are supposed to be resolved with compromise, out of which is forged slow progress. When compromise is blocked, the system breaks down. Only a fool would think he’s thus saving the republic.

“There seems to be no consciousness that government has to work,” Lazos said. “We’re in a strange place right now.”

What do we do? She has an adequate remedy at law: Vote for people who are willing to go to Washington to get something done, to compromise and to resolve the argument.


Steve Sebelius is a Review-Journal political columnist and author of the blog SlashPolitics.com. Follow him on Twitter (@SteveSebelius) or reach him at 387-5276 or SSebelius@reviewjournal.com.

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