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Ruling that the courts have no power to do anything about it, a federal judge on Friday threw out a claim that Senate filibusters are an unconstitutional denial of majority rule. U.S. District Judge Emmet G. Sullivan, in a 40-seven-page opinion, said none of the challengers had a right to pursue their case in court, and ruled that it would intrude on the Senate’s powers for the court to decide “an important and controversial issue.”
The decision leaves any chance of reducing the routine use of filibusters to block Senate action entirely within the hands of the Senate itself. There, Democratic leaders have been talking about a possible effort at the opening of the next Congress in January to make at least some changes in Rule XXII.
Under Rule XXII, it takes the votes of 60 senators to move ahead with debate or to close down debate on bills or presidential nominations. While the Senate is in the midst of one of its regular two-year sessions, the rule also requires a two-thirds vote to start or close debate on any proposal to change the Senate’s rules. Only at the opening of a new Congress could the Senate change its rules by a simple majority vote.
Judge Sullivan commented that, in today’s Senate, “even the mere threat of a filibuster is powerful enough to completely forestall legislative action.” But, he said, he “cannot find that any of [those who sued] have standing to sue….Second, and no less important, the Court is firmly convinced that to intrude into this area would offend the separation of powers on which the Constitution rests.”
The Constitution, the judge wrote, does not contain any “express requirements regarding the proper length of, or method for, the Senate to debate proposed legislation. Article I reserves to each house the power to determine the rules of its proceedings. And absent a rule’s violation of an express constraint in the Constitution or an individual’s fundamental rights, the internal proceedings of the Legislative Branch are beyond the jurisdiction of this Court.”
Although attempts to challenge filibusters through a lawsuit have been tried in the past, groups interested in reforming Senate procedures had crafted this new lawsuit, Common Cause v. Biden (District Court docket 12-775), with high hopes that they had found a way around judicial obstacles.
Their lawsuit involved four members of the House of Representatives, who claimed that their votes when the House passed a bill had been nullified by a Senate filibuster that killed that measure. They were joined by the civic advocacy group, Common Cause, and by three individuals who would have benefited from a House-passed measure on immigrants’ rights, had it not been killed by a Senate filibuster.
Alleged nullification of a lawmaker’s votes on proposed legislation, Judge Sullivan found, is not a sufficiently strong claim to entitle that lawmaker to seek a court remedy. As for the others who sued, the judge found, the courts have no authority to remedy their inability to take advantage of proposed legislation that “was never debated, let alone enacted,” in the Senate.
The challengers now have the option of appealing the Sullivan decision. They have a right to do so at the U.S. Court of Appeals for the D.C. Circuit. In addition, they also have the option of trying to persuade the Supreme Court to hear their plea, before the court of appeals acts, or after.