Lawsuit Challenges Constitutionality of Senate Filibuster Rule

Courts 05.16,12

Common Cause, a government watchdog group, filed a lawsuit yesterday with the U.S. District Court in Washington, D.C., challenging the use of the filibuster in the Senate as unconstitutional.

The filibuster is a Senate rule that allows a single senator to extend debate indefinitely on a bill or nomination. The only way to overcome a filibuster is with a supermajority vote of 60 senators. Once rare, filibusters are now being invoked on a routine basis by a minority of senators to block consideration of legislation and nominees that have majority support. During the 111th Congress, a record 137 filibusters were used to obstruct legislation, according to the lawsuit.  That’s more than three times the number of filibusters in the 20 years from 1950 to 1969.

“Most Americans have lost confidence in Congress and its ability to act in the best interest of the American public,” Bob Edgar, president and CEO of Common Cause, said at a news conference announcing the lawsuit.  “They have good reason. Congress is mired in gridlock as partisan factions put political advantage over the national interest. Requiring 60 votes to do anything in the Senate is a big part of the problem. It creates a disincentive to compromise, and allows powerful special interests to call the shots behind closed doors.”

Beyond killing legislation, the current Senate minority is using the filibuster to block many of the president’s executive and judicial nominees, resulting in an unprecedented backlog and a vacancy crisis in the federal courts. The Administrative Office of the U.S. Courts has designated 32 current vacancies to be “judicial emergencies,” primarily due to large caseloads. Recent bills on job creation, resources for veterans, student loans, campaign spending transparency, and immigration reform have also been blocked. And in December 2010, 55 senators voted to consider the DREAM Act, which would give some undocumented children a pathway to permanent residency. But the bill was blocked from consideration because 41 senators voted to maintain a filibuster.

Erika Andiola was one of three DREAMers who joined four members of Congress as plaintiffs in the Common Cause lawsuit. Andiola, who earned a degree in psychology from Arizona State University in 2009, attended the school on full scholarship until Proposition 300 stripped publicly-funded scholarships for undocumented students. Fortunately, she was able to graduate and currently serves as an advocate for immigrants while aspiring to become a school counselor.

Andiola said at the press conference that she risked being deported to publically push the Senate to pass the DREAM Act, only to see it fall five votes short of overcoming a filibuster. “It’s only because five people decided to put my future on hold [that] I am not able to use my degree or contribute to the country I love,” she said.

The congressmen argue that the filibuster rule is unconstitutional because it illegally nullifies their legislative votes, and that the Constitution requires supermajorities only in specific cases, such as overriding a veto, ratifying a treaty, or impeaching an officeholder.

“The filibuster is becoming a monster, rearing its ugly head repeatedly,” said Rep. Hank Johnson, D. Ga., who went on to say yesterday that the rule creates gridlock, is “undemocratic” and “invalidates my vote.”

The Common Cause lawsuit traces the history of the filibuster and argues that it is not the only way for the minority to be heard, that it no longer allows for debate, and that it promotes gridlock rather than compromise. “Nothing is more fundamental to a democratically elected legislative body than the principle of majority rule,” Emmet J. Bondurant wrote in the introduction of the 52-page complaint. Bondurant, founding partner of Bondurant, Mixson & Elmore, is Common Cause’s lead attorney and a member of the organization’s National Governing Board.

Edgar said, “This is not what the founders had in mind. We have no choice but to ask the courts to step in and enforce the Constitution as a matter of law.”