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Representing the Senate, attorney Thomas E. Caballero said the Constitution explicitly allows each legislative chamber to set its own rules and that House members have no basis for the argument that their votes are being diluted by the Senate’s use of the filibuster.
“That’s not vote nullification. That’s the bicameral legislative process,” Caballero said.
Emmet J. Bondurant, the attorney for the plaintiffs, acknowledged that the Constitution allows the Senate to set its own rules but said the Senate is “totally wrong” in arguing that its authority to do so is absolute. He urged the court to review the merits of the lawsuit just as it would review the merits of a lawsuit against a congressional statute.
“It cannot be that a Senate rule is immune from judicial review when a statute is not immune from judicial review,” Bondurant said.
Both sides faced tough questions from Sullivan, who at one point asked whether the House lawmakers might have a stronger case had they enlisted more of their colleagues — possibly including Speaker John A. Boehner, R-Ohio — in the challenge.
At two other points during the hearing, Sullivan questioned the House Democrats’ claim that the immigration legislation, which is a central point in their challenge, would have passed the Senate were it not for the filibuster. He noted that a vote on a motion to invoke cloture is not the same thing as a vote on the underlying bill itself and that it is “sheer speculation” to argue that the DREAM Act would have become law were it not for the 60-vote threshold.
Senate Republicans have opposed Reid’s proposals to change the filibuster rules, and Common Cause said the debate is unlikely to be resolved politically.
“The continuing deadlock leaves court action as the only viable alternative for restoring the principle of majority rule and permitting the Senate to function,” the group said in a statement.