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Roll Call

Federal Court Becomes New Front in Filibuster Battle

Tom Williams/CQ Roll Call
Michaud, left, is one of the plaintiffs in a lawsuit that aims to have the Senate filibuster ruled unconstitutional. He joined Common Cause President Bob Edgar, center, in a news conference outside the U.S. District Court for the District of Columbia.

The debate over the filibuster moved into a federal courtroom Monday, as four House Democrats and other plaintiffs outlined a lawsuit they have filed against the Senate over the controversial use of the parliamentary maneuver.

The House members — Reps. John Lewis and Hank Johnson of Georgia, Michael H. Michaud of Maine and Keith Ellison of Minnesota — contend that the 60-vote threshold required to invoke cloture and overcome Senate filibusters unconstitutionally infringes on the principle of majority rule because it allows a minority of senators to defeat bills that otherwise would pass on a simple majority vote.

The hearing Monday at the U.S. District Court for the District of Columbia came amid growing debate on Capitol Hill over efforts by Senate Majority Leader Harry Reid, D-Nev., to change the filibuster rules in the 113th Congress.

The House Democrats are joined in their lawsuit by Common Cause, an advocacy group that promotes open government, and by several young immigrants who claim that their interests were harmed during the 111th Congress, when House-passed legislation to loosen immigration laws failed to advance in the Senate. The plaintiffs argue that the filibuster is to blame for the defeat of legislation, known as the DREAM Act, because the bill fell five votes short of the 60 votes needed for cloture.

More broadly, the plaintiffs argue, the filibuster regularly prevents the Senate from passing legislation that has the support of a majority of senators.

“The Founding Fathers were smart enough to put a system of checks and balances in place,” Bob Edgar, president of Common Cause and a former member of Congress from Pennsylvania, said during a news conference after Monday’s court hearing. “We think that the current Senate has manipulated the filibuster.”

The case is Common Cause et al. v. Joseph R. Biden Jr. et al., naming the vice president in his official capacity as Senate president.

The two-hour hearing focused on the question of whether the plaintiffs have the standing to bring their lawsuit. Lawyers for the Senate asked Judge Emmet G. Sullivan to dismiss the case.

Sullivan did not take that step Monday. Rather, he asked the Senate’s legal team to provide written briefings on additional legal questions by Dec. 13, noting that the lawsuit raises “complicated issues.” Edgar said he expects a ruling on the standing question late this year or early next year.

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.

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