Futile suit against filibuster dismissed

April 15

In May 2012, Common Cause and several members of Congress filed suit challenging the constitutionality of the Senate filibuster. Specifically, they argued that allowing a minority of elected senators to prevent a substantive bill from coming up for a final vote violates the constitutional principle of majority rule. This suit was always destined to go nowhere, for reasons I discussed here.

In December 2012, the District Court dismissed the case, finding that the plaintiffs lacked standing and that the case presented a non-justiciable political question.  Today, a unanimous panel of the U.S. Court of Appeals for the D.C. Circuit affirmed, resting its decision on standing grounds.  As the court explained, the plaintiffs’ alleged injury — the Senate’s failure to pass the DREAM Act and DISCLOSE Act — was caused by the Senate.  Yet the plaintiffs did not sue the Senate or  specific filibustering senators, likely because such a suit would have been precluded by the Constitution’s Speech and Debate Clause.  Instead, Common Cause filed suit against the vice president (in his capacity as president of the Senate) and three Senate officers, yet this will not do. It is the Senate that established the filibuster rule, and individual senators who filibustered.  Thus, the court concluded, “Common Cause’s alleged injury was caused not by any of the defendants, but by an ‘absent third party’—the Senate itself.”  Thus, Common Cause did not have standing, and the court lacked jurisdiction to decide the case.

Common Cause may well decide to file a petition for certiorari with the Supreme Court, but any such filing is likely to be denied.  Whatever one thinks of the filibuster, the suit was futile from the start.

UPDATE: Common Cause reacts to the decision here.

Jonathan H. Adler teaches courses in constitutional, administrative, and environmental law at the Case Western University School of Law, where he is the inaugural Johan Verheij Memorial Professor of Law and Director of the Center for Business Law and Regulation.
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Jonathan H. Adler · April 15