12/14/2012 04:41 pm ET Updated Feb 13, 2013

Reforming the Filibuster for Immigration

In 2010, the Republicans were able to successfully use a parliamentary procedure of the Senate known as the filibuster to block the DREAM Act. In addition to the DREAM Act, measures such as health care for 9/11 first responders were also filibustered by the Republican minority in the last Congress, delaying or destroying bills in ways completely removed from the merits of the discussion; it's another way to end intelligent argument in Congress, an institution which sees precious little of that even under the best of circumstances. Although a bit of a "gentleman's agreement" existed to no abuse the filibuster, many of today's politicians have abandoned the taboo, as well as their responsibility to govern.

There are currently two efforts underway to curtail the filibuster's ability to stop the government from working, Elizabeth Warren's movement within the Senate, and one of which involves the DREAMers directly as plaintiffs: Common Cause's lawsuit.

The Senate filibuster, a measure used to prevent a bill from being brought to a vote, typically happens when a senator delays or prevents a vote on a bill by extending the debate on the measure. The rules permit a senator or senators to speak for as long as they wish on any topic they wish unless three-fifths (60) of the senators invoke cloture to end debate and force a vote on the bill.

"We cannot allow the Senate to be dysfunctional by the use of filibusters," said Senate Majority Whip Dick Durbin (D-Ill.), Reid's No. 2. "We've had over 300 filibusters in the last six years -- it's unprecedented." Sen. Durbin is supported by the numbers: there has been a giant spike in the number of filibusters in the past few years, and it's been almost entirely from the Republicans to block even modest Democratic reforms.

With the Republican's willingness to abuse the filibuster, the Democrats were required to win over Republicans to do nearly anything that could potentially be newsworthy or make needed reforms. Senate Minority Leader Mitch McConnell vowed that his top priority was to make Obama a one-term president, and led his party in saying no at every available opportunity to address a problem legislatively by blocking the vote with a filibuster. This led to the sort of congressional drama like the debt ceiling crisis that brought Congress to historically low approval ratings, and cost our country it's credit rating.

"What we're talking about is very basic -- you want to start a filibuster, you want to stop the business of the Senate, by goodness' sake, park your fanny on the floor of the Senate and speak. If you want to go to dinner and go home over the weekend, be prepared, the Senate is moving forward," said Sen. Durbin. He was referencing the fact that the reform the Democrats are proposing would include a measure that would require senators to actually speak while filibustering as they previously had. Now more than ever, this would leave a politician vulnerable to mockery should they choose to take the stage to slow down a bill to provide for the DREAM Act, funding for veteran's funerals or 9/11 first responder health care bills.

"They are putting the Senate in a straitjacket," said Stephen Spaulding, staff counsel for Common Cause. "They cannot adopt their own rules, and that's an issue we think the courts should settle." This is the sentiment of not only the attorneys from Common Cause who are working the case, but also DREAMers like Erika Andiola, Caeser Vargas, Celso Mireles and others who are the plaintiffs in this case; though the DREAM Act had the support of 55 senators and should now be law, a minority held their breath and stamped their feet as hard as they could and so a vote of 55-41 in the Senate wasn't enough to break the filibuster. Common Cause believes that this breakdown of the government is unconstitutional and, since the Framers did not originally contemplate the filibuster and it is not in the constitution, there is plenty of leeway for argument.

For anyone who needs the government to function, the filibuster is an obstacle. For undocumented immigrants who currently need the government to work toward a solution on their immigration status, it is the reason why many have been offered Deferred Action by the Obama administration, however, are still waiting for something more permanent.

In the words of the Brennan Center for Justice, "The Senate continues to face an unprecedented, effectively permanent filibuster, which affects matters entirely within its own purview. These findings confirm that the Senate must act decisively, at the start of the 113th Congress, to put its house in order."