WASHINGTON — A federal judge began hearing arguments Monday in a case about whether Congress is constitutionally required to pass legislation by a simple majority vote and whether the Senate’s filibuster rules violate such a requirement.
The debate over changing the rules of the Senate moved to federal court just blocks from the Capitol on Monday as U.S. District Judge Emmet G. Sullivan considered a legal challenge to the chamber’s rules.
Four House Democrats and the nonpartisan government-accountability group Common Cause have sued to end the filibuster, calling it an unconstitutional “accident of history” inconsistent with the “principle of majority rule.”
The Democratic lawmakers — Reps. Keith Ellison (Minn.), Hank Johnson (Ga.), John Lewis (Ga.) and Michael H. Michaud (Maine) — are joined by three other challengers whom Common Cause says are being “denied a path to American citizenship” because Republicans have repeatedly filibustered legislation that would grant them an opportunity to apply for it.
Federal courts have tossed similar challenges before. Senate attorneys wrote in court papers that to take up the case would be to “do what no court has ever done — inject the judicial branch into the Senate’s internal deliberations and usurp the Senate’s power to determine its own rules and procedures.”
In a hearing sprinkled with references to the Federalist Papers, Sullivan seemed focused on whether the plaintiffs have any legal standing to challenge Senate rules, which require 60 votes to end debate on any piece of legislation. The ability to extend the debate indefinitely allows a minority of senators to block legislation that has majority support.
Sullivan pressed attorneys for the plaintiffs about why the court should get involved in reviewing the rules of the Senate and asked what remedy he could realistically provide when there is no guarantee that the immigration bill known as the Dream Act, or a proposal to expand campaign finance disclosure, would be revived.
“The legislation has died. Isn’t it sheer speculation that it would be passed again by the House?” Sullivan asked.
Attorney Emmet J. Bondurant said the plaintiffs are not looking for guaranteed passage but an opportunity for debate and a vote on bills that were initially passed by the House but blocked in the Senate.
“If it had been voted down, that’s the democratic process,” Bondurant said of the immigration bill. “It was not. It was vetoed by an undemocratic process.”
Between 1840 and 1900, there were 16 filibusters. Between 2009 and 2010, there were more than 130, according to Senate records. Senate Democrats need to meet a 60-vote threshold on virtually every piece of legislation, making it difficult — most Democrats would say impossible — to advance legislation sought in recent years by President Barack Obama.
Senate attorneys cautioned the court against overreaching and argued that the Constitution’s “speech or debate” clause bars lawsuits against Congress and its members.
“It’s beyond the power of the court to line edit the Senate rules,” said Thomas E. Caballero, an attorney for the Senate who described the stalled bills as the “natural outcome” of the legislative process.
At one point, Sullivan asked, “So, House members are just out of luck?”
The judge gave Senate attorneys until Thursday to respond to the questions of whether there is a constitutional right to have bills passed by majority vote, and whether the filibuster process violates that right.
Senate Majority Leader Harry M. Reid, D-Nev., has vowed that he will seek to change the filibuster rules when a new Congress convenes in January.
After hinting at the changes for months, Reid ramped up his rhetoric last week, saying: “We’re going to change the rules. We cannot continue in this way.”
But Republicans — who called for a rules change in 2005 when they controlled the chamber — now say that the filibuster preserves the rights of the minority and note that Democrats supported its use when they were in the minority. Senate Minority Leader Mitch McConnell, R-Ky., has dubbed talk of a rules change the “nuclear option” and has vowed to grind Senate operations to a halt if Democrats move forward — a move that could even block the completion of committee assignments for new senators.
After the court hearing Monday, Bob Edgar, a former congressman and president of Common Cause, said that the Senate does have the right to craft its own rules but that courts can push back if those rules are unconstitutional.
“This is not about Democrats or Republicans,” he said. “This is about whether democracy should be based on majority rule.”
So this is where Mike wants to plant his flag? Nothing about fiscal responsibility, crushing debt, overspending. Nooo!, he’d rather tilt after windmills and go after a process that once removed, he might come to regret when the pendulum swings back. But at least he shows the appearance of doing something to earn his keep.
The point is that nothing gets done with the filibuster as a barrier. You can’t even get to those issues you brought up if there is that barrier.
I’m anxious to see a change. The abuse of the filibuster has become ridiculous.
if you want change, either amend the constitution or elect senators who will change their own chamber’s rules
otherwise, this is just typical lib political theatre and will go absolutely nowhere in the courts
Yes, Jack.
And by the way, am I the only one who was astonished at Common Cause being described as “non partisan”?
Oh, wait—I went back, and noticed this article is from the Washington Post. Maybe they DO think Common Cause is “non partisan”, or maybe even a little to the right (nudge nudge).
“And by the way, am I the only one who was astonished at Common Cause being described as “non partisan”?”
Nah. But it’s only worth an eye-roll.
Article 1, Section 5
“Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.”
doesn’t get much clearer than that…
Missed it by that much. ;^)
YES, Jack—why don’t stories like this mention a little background, or even history (more than that 1840 to 1900 tidbit).
Until the 1950’s or early ’60’s, the requirement for cloture (to end a filibuster) was a two thirds vote, just like the Constitution specifies for removal of a member.
And, oh my goodness, don’t we have separation of powers??? How can a federal judge tell the Senate how to conduct its business???
Politicians can be so shameless sometimes. For many many (roughly 200) years, the filibuster was used to delay or block legislation—but then some genius decides it could be used to block presidential appointments. I don’t recall much outrage from the usual suspects (Michaud et al)
Since Article 1 Section 5 of the Constitution says “Each House may determine the rules of its proceedings….” it doesn’t seem like there’s much point to this suit.
They don’t even need to eliminate filibuster, just force them to actually take the floor and speak, rather than just saying they will. Back to the days of “Mr. Smith”. Senators have too many fundraisers to attend to spend all that time on the floor reading the phone book.