Common Cause Presses Case Against the Filibuster in Federal Court Hearing

With momentum building inside the U.S. Senate to reform the filibuster rule, Common Cause was in federal court today to argue that the rule is unconstitutional and should be discarded.

Lawyers for the non-profit government watchdog group urged U.S. District Judge Emmet Sullivan to schedule a full trial on their lawsuit challenging the constitutionality of the filibuster. Sullivan heard nearly two hours of argument on a Senate motion to dismiss the case, peppering lawyers for both sides with detailed questions about whether any court has the power to overturn the filibuster rule.

Common Cause lawyer Emmet Bondurant argued that the federal courts, representing a co-equal branch of government, have an established right to review and overturn laws passed by both houses of Congress and signed by the President. “It cannot be that a Senate rule is immune from review when a statute (passed by both houses) signed by the President is subject to review,” Bondurant asserted.

The suit, Common Cause et al. v. Biden et al., was filed last May. It cites a variety of America’s founding documents to build a case that the filibuster and its supermajority requirement for Senate action were never contemplated and actually were rejected by the framers of the Constitution.

“Partisan gamesmanship has become the norm in Congress, and the current use of the filibuster is a prime example of that,” said Representative Mike Michaud, D-ME, a plaintiff in the suit. “If successful, this court case will fix the way we do business in Washington and make Congress work again.”

“The filibuster has historically served to check an oppressive majority in matters of extraordinary importance,” said U.S. Rep. Hank Johnson, D-GA., a plaintiff in the case. “But in recent years, it has become a tool for unnecessary obstruction. It undermines the Constitution’s checks and balances, and it denies the Constitution’s guarantee of equal representations to the states.”

“The Constitution is very specific about when supermajorities are required – to remove judges or high-ranking officials during impeachment trials, to ratify treaties, expel members of Congress, override presidential vetoes and propose constitutional amendments,” said Common Cause President Bob Edgar. “But the filibuster rule essentially imposes a 60-vote supermajority requirement on every piece of legislation coming to the Senate; while the Senate has the power to make its own rules, it cannot impose rules that are incompatible with the Constitution.”

In addition to Common Cause, Michaud, and Johnson, plaintiffs in the suit include Reps. John Lewis, D-GA., and Keith Ellison, D-MN, as well as three young professionals – Erika Andiola, Ceslo Mireles, and Caesar Vargas – who are being denied a path to American citizenship because of repeated Senate filibusters of the House-passed DREAM Act.

Judge Sullivan asked Senate lawyers to give him written answers to several questions about their claim that the suit presents a political question, beyond the reach of the courts. He gave no indication of when he may rule.

Monday’s hearing came amid an ongoing discussion among senators on proposals to reform the filibuster rule. Senate Majority Leader Harry Reid has indicated he’ll ask senators next month to begin requiring a “talking filibuster,” in which senators who want to delay action on legislation would have to come to the floor and actually discuss it – continually – until exhausting themselves or bringing a majority of senators around to their views.

The filibuster rule currently allows a single senator to block debate and action simply by voicing an objection to a bill. The bill then cannot go forward unless 60 senators vote to proceed.

“Win or lose today, I can’t help but observe that the Senate’s motion represents an attempt to choke our case before it can be fully heard,” Edgar said. “Sadly, that’s very much akin to the way some senators use the filibuster rule to choke off debate and action on the nation’s business.”