Filibuster fight entering a new phase in appeals court

All right folks, we’re about to learn whether the third branch of government — the judiciary — can summon the will to confront the U.S. Senate and order that body to change its rules to comport with the Constitution.

Common Cause on Tuesday filed its opening brief in the U.S Court of Appeals for the DC Circuit in Common Cause v. Biden, our lawsuit against the U.S. Senate’s filibuster rule. The 81-page submission challenges the appeals court, former home to four of the nine current Supreme Court justices, to put the Senate in its place.

The brief argues that the Constitution’s authors intended that most legislation rise or fall on the vote of a simple majority of senators. The Constitution calls for a “super-majority” in only six circumstances, including the ratification of treaties and conviction of the President or other senior officials in impeachment trials, it notes.

But as practiced by today’s Senate, the filibuster rule requires a supermajority — 60 of 100 senators — to advance any legislation or presidential nomination. The brief focuses on two major bills, the DISCLOSE Act and the Dream Act, to buttress that point, noting that each received the votes of a clear majority of senators but was blocked from passage by a filibuster.

The brief also systematically examines, and then demolishes, every point raised against the lawsuit and in favor of the filibuster by U.S. District Judge Emmet Sullivan, who dismissed the Common Cause suit after a hearing last December. Sullivan’s decision was “infected” with a series of procedural errors, the brief asserts, and erred in blocking Common Cause and its co-plaintiffs from bringing the case to trial.

Sullivan ruled that Common Cause was raising a “political” question, outside the traditional purview of the courts. But the brief argues that the courts have longstanding authority to overrule laws that violate the Constitution. “The Senate can no more adopt a rule that conflicts with provisions of the Constitution than it can pass a statute that conflicts with other provisions of the Constitution,” it declares.

The unspoken question in all these legal arguments is whether the federal courts, which have the final say in legal matters under our system, will use their authority as interpreters of the Constitution to confront the Senate where it lives.

This is one to watch.