Filibuster appeal reaches D.C. Circuit

Today’s east coast snowstorm shut down most of Washington, but the judicial branch was undeterred.

A three-judge panel of the U.S. Court of Appeals for the District of Columbia heard oral argument in Common Cause et al. v. Biden et al., a constitutional challenge to the 60-vote filibuster rule.

Emmet Bondurant, a member of Common Cause’s National Governing Board, argued on behalf of Common Cause, four members of Congress (Reps. John Lewis, Keith Ellison, Michael Michaud and Hank Johnson), and three DREAMERs whose pathway to citizenship was blocked by a minority of senators who filibustered the DREAM Act.

Ezra Klein wrote about our case when we originally filed it in May 2012. You can read his piece here in the Washington Post. NPR’s All Things Considered also discussed our litigation on the air, which you can listen to here.

At its core, our argument challenges the constitutionality of a 60-vote requirement to pass legislation, because it upsets the finely wrought legislative process envisioned by the Constitution and gives a minority of senators far more power — in fact, a minority veto – over the entire legislative process. The 60-vote rule also conflicts with the Constitution’s presumption of majority rule except in instances otherwise delineated by the Constitution, such as overriding a presidential veto, ratifying a treaty, amending the Constitution or impeaching the President.

We took the fight to court because the Senate’s rules allow the filibuster rule to be amended only with another supermajority vote, in essence, allowing filibuster supporters to filibuster reasonable and sensible filibuster reforms. Moreover, as the Supreme Court long ago ruled in an opinion by Justice Louis Brandeis, the Senate “may not by its rules ignore constitutional restraints.” In other words, while the Senate may adopt its own rules, those rules cannot themselves be unconstitutional.

The D.C. Circuit is no stranger to the filibuster controversy; President Obama’s nominees to the D.C. Circuit faced lengthy filibusters themselves, ultimately triggering Senator Reid’s landmark invocation last November of a rarely-used parliamentary procedure to lower the threshold of cloture from 60 to 51 on presidential nominations.

Our late January snowstorm notwithstanding, D.C. Circuit Judges Williams, Henderson and Randolph heard argument this morning for approximately 35 minutes. As expected in a case of this magnitude, the judges asked a number of searching, tough questions on the scope of the judicial power to review Senate procedures as well as the scope of the Senate’s own rulemaking powers.

Although we do not know when the Court will release its opinion, Common Cause is committed to continue to advocate for sensible changes to Senate procedures so that we can end gridlock and get back to solving the critical issues of our day.

(For other background reading, you can read our opening brief to the Court here. The most thorough treatment of this complex issue can be found in Emmet Bondurant’s law review article in the Harvard Journal on Legislation that lays out our constitutional argument, which you can access here. You can also see my interview on MSNBC from yesterday here, and read my op-ed in Politico from over the summer here.)