Senate Filibuster Enables Minority To Block Progress
Senate Filibuster Enables Minority To Block Progress On Nation’s Biggest Challenges
The U.S. Senate’s filibuster rule “promotes gridlock,” unconstitutionally stifles debate and enables a minority to block progress on the biggest challenges facing America, Common Cause said Monday.
By allowing as few as 41 of 100 senators to block action or debate on legislation or on nominations for key positions in government, the filibuster also flouts the clear intent of America’s framers by giving a minority of senators effective control of the legislative process, the non-partisan government watchdog group added.
In a 70-page legal brief, filed in U.S. District Court in Washington, Common Cause dismissed claims that the Senate has virtually unlimited authority to write its own rules and urged the court to declare the filibuster’s 60-vote requirement unconstitutional.
When the Constitution was adopted, senators “had no ‘right’ of ‘unlimited debate’ and no ‘right’ to prevent the majority from debating or voting by ‘filibustering,’ the brief adds. The Constitution itself specifies that a supermajority is required for Senate action in only a handful of circumstances, including conviction of the President in an impeachment trial (two-thirds of the senators present), and overriding a presidential veto (two-thirds of those elected).
“The Senate cannot preempt or short-circuit” the Constitution “and substitute a rule of its own” by requiring a bill or nomination to command the support of 60 senators before it can be considered and voted on, the brief argues.
“Our filing today demonstrates how far the Senate, now effectively dominated by a minority, has strayed from the intent of America’s founders as expressed in our Constitution,” said Common Cause President Bob Edgar. “The filibuster rule enables a determined minority to block progress on the biggest challenges facing America, like jobs, the economy and cleaning up Congress.”
The brief was filed in opposition to a motion-to-dismiss filed by the Senate in response to a Common Cause lawsuit, which argues the filibuster is unconstitutional.
“In seeking dismissal of our case, the Senate argued that its rules are off-limits to the federal courts. Today we make clear that the Senate is not above the law, and its rules are subject to constitutional restraints,” Edgar said.
Common Cause, four members of the House of Representatives (Reps. John Lewis, Michael Michaud, Hank Johnson and Keith Ellison), and three private individuals filed suit to challenge the filibuster in May. Senate lawyers have urged that the case be dismissed, arguing that the plaintiffs lack legal standing to sue. Oral argument on the dismissal motion is expected sometime this fall.
The brief also dismisses Senate claims that the suit is aimed at giving the courts the responsibility for writing Senate rules or governing the length of Senate debates.
“The plaintiffs ask the Court to do what courts have traditionally done when they have found that parts of a statute or rule are unconstitutional – they have severed the unconstitutional provisions,” the brief states. It adds that if the court agrees that the current rule is unconstitutional, it will be up to the Senate to write a new rule that satisfies constitutional requirements.
Emmet Bondurant, veteran constitutional lawyer and a member of Common Cause’s National Governing Board, is representing Common Cause and the other plaintiffs. He outlined the case against the filibuster earlier this month in a presentation to the American Constitution Society in Atlanta.
Exhibit A accompanying the brief can be read here.