Common Cause Urges Federal Appeals Court To Declare Filibuster Unconstitutional
With senators mired in an apparently endless debate over their filibuster rule, Common Cause on Tuesday urged a federal appeals court to declare the rule and its 60-vote requirement for legislative action unconstitutional.
In a brief to the U.S. Court of Appeals for the D.C. Circuit, the non-profit “citizens lobby” argued that the filibuster rule’s 60-vote provision allows a minority of senators to nullify votes and kill legislation passed by the entire House of Representatives, with disastrous results for individuals and groups that would be impacted by the bills involved.
“As the Senate continues to wrangle over the so-called ‘nuclear option,’ we are asking the federal courts to declare that the Senate’s 60-vote filibuster rule is inconsistent with the Constitution,” said Stephen Spaulding, Common Cause’s staff counsel. “The framers would be appalled by a Senate that requires 60-votes for every item of legislative business and confirmation of nominees. And with the Senate hamstrung by its own rules, we have no choice but to ask the courts to settle this question, once and for all.”
Common Cause v. Biden, was filed in May 2012 by Common Cause, four members of the House and three people who would have a path to American citizenship opened by the DREAM Act, a House-passed bill blocked by filibustering senators. A lower court dismissed the litigation in December on the grounds that it was “powerless” to address the underlying question of law.
“The Senate may have the right to adopt its own rules, but we have appealed because Supreme Court case law is clear the Senate’s rules cannot conflict with other provisions of the Constitution,” Spaulding said. The Common Cause brief includes citations to several cases which make it clear that legislators have standing to sue because the filibuster works to nullify the votes they cast in the House, he added.
After failing to adopt meaningful filibuster reform at the beginning of this Congress, the Senate has been mired in gridlock over key presidential appointments, including nominations to the National Labor Relations Board, the Environmental Protection Agency, the Consumer Financial Protection Bureau, the D.C. Circuit Court, and the Department of Labor. The filibuster rule also has blocked gun violence prevention legislation proposed in the wake of the Newtown tragedy, legislation that enjoyed broad majority support but failed to garner 60 votes.
Spaulding noted that a recent decision by the D.C. Circuit has significantly narrowed the President’s ability to utilize his recess appointment powers, further strengthening the hand of filibustering Senators intent on blocking future nominations.
“Our government is being held hostage by a minority of the Senate. The Constitution is clear when a supermajority is required: overriding presidential vetoes and ratifying treaties, for example. Passing legislation and confirming nominees do not,” he said.
The lead attorney on the litigation is Emmet Bondurant, member of the Common Cause National Governing Board and founding partner of Bondurant, Mixon & Elmore LLP of Atlanta, GA.
Plaintiff-appellants are Common Cause, Rep. John Lewis (D-GA), Rep. Keith Ellison (D-MN), Rep. Michael Michaud (D-ME), Rep. Hank Johnson (D-GA), Erika Andiola (DREAM Act plaintiff), Caesar Vargas (DREAM Act plaintiff), and Celso Mireles (DREAM Act plaintiff). Defendants are officers of the Senate defending the litigation in their official capacity.
The case is #12-5412 in the court’s files.