Where is Jimmy Stewart when we need him? In “Mr. Smith Goes to Washington,” the classic actor plays the aptly named Jefferson Smith, a young U.S. senator who uncovers corruption. In a famous scene, Smith launches a filibuster—talking nonstop—to tie up the Senate until he can prove his own innocence and go after the bad guys.
Under current Senate rules, it takes 60 of 100 votes to invoke “cloture,” which ends debate and leads to a vote on a bill. And the practice today is to avoid long speeches and switch to other Senate business while the filibuster continues.
Now, the liberal Common Cause group is challenging the filibuster rule in court papers filed May 14. The U.S. Supreme Court will decide before its June recess whether to take up the case, which then would be heard when the court reconvenes in the fall.
The matter concerns the Senate trying to pass the so-called DREAM Act, whose official name is: the Development, Relief, and Education for Alien Minors Act. It would grant conditional amnesty to about 65,000 illegal immigrants who are high school graduates. They also would have to meet other criteria, such as attending college or enlisting in the military. After six years, they could become permanent residents and be on the path to citizenship.
The bill mainly is backed by Democrats and opposed by Republicans. But it is co-sponsored by Republican Sen. Orrin Hatch of Utah—one reason he’s in trouble facing conservative challenger Dan Liljenquist in the state’s June 26 primary.
On September 12, 2010, a version of the bill received a 56-43 vote to invoke cloture, meaning the filibuster was not ended. Republican opponents today still have enough opposition strength to filibuster it into extinction.
Used as political ploy
Indeed, the matter is moot so long as Republicans control the House of Representatives, which would not pass the bill. Should Democrats re-take the House in November while keeping the Senate, the DREAM Act could come into play. But the controversy is being used to rally Hispanic voters to President Obama’s election campaign, possibly distracting them from the president’s dismal economic record. He especially has failed to support policies that would help create jobs in minority communities.
Common Cause insists that the DREAM Act violates majority-rule democracy. Three illegal immigrants who would benefit from the bill have joined in the lawsuit. Explained one of them, Caesar Vargas, “I was really frustrated when I saw the DREAM Act; I was basically cheated justice. I say that the DREAM Act won by five votes [in 2010]. It was the unconstitutional filibuster that caused it to not proceed.”
Actually, the founders did not design the U.S. government to be a pure democracy, but a representative republic. The Senate itself has two senators representing Wyoming, population 568,158; but also just two for California, population 38 million. The Senate was intended to slow down legislation, allowing time for deliberation. And the Supreme Court isn’t even elected.
On the matter of filibusters, the Constitution clearly stipulates, “Each House may determine the rules of its proceedings….”
“This will be a hard one to get four justices to hear it,” David Wagner told us; he’s an associate professor of constitutional law at Regent University School of Law in Virginia Beach, Va. Four of nine Supreme Court justices must agree to bring a case before the court. “Common Cause is asking the court to intervene in the internal procedures of a coordinate body” of the government.
He pointed to the 1993 case, Nixon v. United States. Walter Nixon, a federal judge, had been impeached after his court conviction on perjury before a grand jury. Nixon objected that the Senate only voted to remove him from office; that he was not “tried by the Senate,” in the Constitution’s words. The Supreme Court unanimously decided against Nixon.
In the “Mr. Smith” movie, Smith says, “Now, I had some pretty good coaching last night, and I find that if I yield only for a question or a point of order or a personal privilege, that I can hold this floor almost until doomsday. In other words, I’ve got a piece to speak, and blow hot or cold, I’m going to speak it.”
That’s our American way.