Supreme Court Refuses to Hear Challenge to Filibuster Rule

High Court Decision 'Shortsighted and Ominous,' Common Cause Says

“The Supreme Court’s refusal to hear Common Cause’s case challenging the constitutionality of the U.S. Senate’s filibuster rule is both shortsighted and ominous,” Common Cause President Miles Rapoport said today. “Instead of protecting debate, the 60-vote filibuster rule has shut down discussion on important legislation, from a living wage to addressing climate change.

“Unfortunately, the extreme use of the filibuster has led to partisan gridlock and dysfunction that ultimately robs the American people of a Senate that should be responsive to the needs of our country,” Rapoport added.

Equally disturbing is that the Supreme Court let stand a DC Circuit Court of Appeals decision that makes it logically impossible to challenge Senate rules that violate the Constitution. Under the appeals court’s logic and the high court’s decision today, the Senate could strip minority or female senators of equal voting rights and still be immune from judicial intervention. “Leaving the Senate a law unto itself is an anti-democratic outcome than cannot stand for long,” Rapoport said.

In May 2012, Common Cause, joined by four Members of Congress (Representatives John Lewis, Michael Michaud, Keith Ellison and Hank Johnson) and three DREAM Act beneficiaries (Erika Andiola, Celso Mireles and Caesar Vargas) filed suit to challenge the constitutionality of the Senate rule that allows a single senator to block legislation unless 60 vote to proceed.  

Although the Constitution allows the Senate to adopt its own rules and procedures, those rules cannot conflict with the Constitution, the lawsuit charged. The complaint and briefs also argued that the Constitution forbids supermajority thresholds for ordinary Senate business except in a few, specific instances, such as to override a presidential veto or ratify a treaty. The briefs argued that the founders considered, and expressly rejected, supermajority requirements to pass ordinary legislation.

No court, including in this case, has considered a challenge to the 60-vote filibuster rule on its merits. Instead, courts have dismissed challenges to the rule on procedural grounds. The Common Cause suit was the first to include members of Congress as plaintiffs.

Nine constitutional law professors, including Dean Erwin Chemerinsky of the School of Law at the University of California, Irvine, filed an amici curiae brief at the Supreme Court in support of Common Cause. They argued that the scope of the Senate’s rulemaking power – including the power to require 60 votes to pass legislation – is a question of law that is right for a court to decide.