“ And there took place . . . [in the U.S. Senate] so many “extended discussions” of measures to keep them from coming to a vote that the device got a name, “filibuster,” from the Dutch word vrijbuiter, which means “freebooter” or “pirate,” and which passed into the Spanish as filibustero, because the sleek, swift ship used by Caribbean pirates was called a filibote, and into legislative parlance because the device was, after all, a pirating, or hi*******, of the very heart of the legislative process. ...”
Master of the Senate: The Years of Lyndon Johnson, [Vol.] III, by Robert A. Caro
The fight to end the pirating of legislative progress, the effort by Sen. Harry Reid (Democratic Majority Leader), and supported by President Obama, to soften the rough edges of the filibuster, is the talk of Washington and the media. If Reid's proposals were as drastic as Sen. Mitch McConnell (GOP Minority Leader) asserts, this alleged wielding of the "nuclear option" -- the cutting off of otherwise unlimited debate in the Senate -- might threaten the precious checks and balances of constitutional government. But McConnell weeps alligator tears.
Reid proposes only to modify but not eliminate filibusters of the type memorialized by Jimmy Stewart in Mr. Smith Goes to Washington, where a steadfast minority of senators speak from the well and address the "World's Greatest Deliberative Body" without respite. Majority Leader Reid would merely reverse the more recent relaxation of the filibuster that allows a senator to express the intention to filibuster, thereby requiring a 60-vote majority to invoke cloture (a call to vote on a pending bill). Reid would make changes that -- as Washington Post reporter, Ezra Klein, notes -- are "not dramatic":
[Sen. Reid] wants to be able to make the motion to debate a bill -- but not the vote to pass it -- immune to the filibuster; he wants the time it would take to break a filibuster to be shorter; and he wants whoever is filibustering to have to hold the floor of the Senate and talk.
Klein also suggests:
None of these changes would alter the basic reality of the modern U.S. Senate, which is that it takes 60 votes to get almost anything done. In my view, that means they wouldn’t do much to fix the Senate at all. (Emphasis in original.)
His assessment is too pessimistic. With just a bit more tweaking of the filibuster, say, by ending debate on a vote of 57 senators, gridlock would be reduced. Furthermore, with such a change, the sway of the swing vote -- just as in the Supreme Court where Justice Anthony Kennedy carries great clout -- would minimize polarization. It would also promote greater compromise and empower moderates of the minority party and independents.
We no longer live in the time of Lincoln when robust Senate debate was witnessed merely by the eyeballs in the Gallery or readers of limited-circulation newspapers. Social media spreads audio, video and text of Senate proceedings in real-time around the globe. Consider, for example, the favorable reaction to Sen. Bernie Sanders' "The American People are Angry" speech railing against income inequality in 2010 that quickly went viral.
Consider also the role that popular outrage at the endorsement of such inhumane policies as self-deportation and "attrition through enforcement" played in marginalizing the GOP and the anti-immigration fringe in the last election. Just as wide publication of these anti-immigration sentiments led growing numbers of Latino and minority voters to feel disrespected and to reflect their displeasure in the voting booth, xenophobic oratory by senators droning on for hours, while their views and videos are tweeted in real time, will cause public opinion to register support for comprehensive immigration reform (CRI).
Without a softening of the filibuster rules, we're likely to witness, as we already have seen, the resuscitation of previous small-bore CRI proposals that merely traded legalization with a path to citizenship and modest future flows of temporary workers for greater border and worksite enforcement. While these measures are necessary in any CRI bill, they don't go nearly far enough to address America's 21st Century needs. As NAFSA, the Association of International Educators, recently noted:
In the acrimonious political debate about immigration reform, we lose our way by embracing a mistaken, zero-sum approach to permanent immigration. Proposals like H.R. 6429 [providing expedited green cards for students with STEM degrees but eliminating the Diversity Visa lottery -- a measure opposed by the President ] in this context appear guided by the fear of doing anything that increases the number of people who may immigrate to the United States. There is no reason to regard the current annual limit on the number of green cards as sacrosanct law.
At a time when Republicans are trying to cut out the Diversity Visa lottery and its 55,000 annual green cards, America faces the lowest birth rate on record and an aging population. Cities like Detroit face bankruptcy unless infusions of new immigrants with their innovations and investments are welcomed through reforms of the immigration laws. Skilled immigrants matter. So do "Immigration Entrepreneurs." But America's outmoded visa quotas, pulled from thin air rather than derived through empirical evidence, demoralize and dissuade intending immigrants. Just as pressing, cross-border families deserve the most important of family values, the right to live together, free of heartless, quota-induced separations.
Republicans are searching the wilderness in three camps seeking a principled immigration policy. One group remains full-throatedly opposed, like Mark Krikorian, dubbed an "anti-immigration scholar/kook" by Salon's Alex Pareene; another proposes miserly, piecemeal reforms like the Achieve Act, which would be a stricter DREAM Act with no path to citizenship (other than the second class variety); and a growing number favor CRI.
An improved set of filibuster reforms, while still protecting minority rights, might just peel off enough moderate Republicans to enact America-friendly CRI. Go Harry Go!
Angelo Paparelli is a partner of Seyfarth Shaw LLP. Mr. Paparelli, with a bicoastal practice in Southern California and New York City, is known for providing creative solutions to complex and straightforward immigration law problems, especially involving mergers and acquisitions, labor certifications and the H-1B visa category. His practice areas include legislative advocacy; employer compliance audits and investigations; U.S. and foreign work visas and permanent residence for executives, managers, scientists, scholars, investors, professionals, students and visitors; immigration messaging and speech-writing; corporate policy formulation; and immigration litigation before administrative agencies and the federal courts. He is frequently quoted in leading national publications on immigration law. He is also President of the Alliance of Business Immigration Lawyers, a 30-firm global consortium of leading immigration practitioners. Paparelli’s blog and a comprehensive list of his many immigration law articles can be found at www.entertheusa.com. He is an alumnus of the University of Michigan where he earned his B.A., and of Wayne State University Law School where he earned his J.D. Paparelli is admitted to the state bars of California, Michigan and New York.