The Washington Post

Federal court hears arguments in Senate filibuster challenge

Rep. Keith Ellison, D-Minn., above, and Reps. Hank Johnson (Ga.), John Lewis (Ga.) and Mike Michaud (Maine), along with the nonpartisan government-accountability group Common Cause, have sued to end the use of the filibuster. (Dennis Cook/Associated Press)

A federal judge began hearing arguments Monday in a case about whether Congress is constitutionally required to pass legislation by a simple majority vote and whether the Senate’s filibuster rules violate such a requirement.

The debate over changing the rules of the Senate moved to federal court just blocks from the Capitol on Monday as U.S. District Judge Emmet G. Sullivan considered a legal challenge to the chamber’s rules.

Four House Democrats and the nonpartisan government-accountability group Common Cause have sued to end the filibuster, calling it an unconstitutional “accident of history” inconsistent with the “principle of majority rule.”

The Democratic lawmakers — Reps. Keith Ellison (Minn.), Hank Johnson (Ga.), John Lewis (Ga.) and Michael H. Michaud (Maine) — are joined by three other challengers whom Common Cause says are being “denied a path to American citizenship” because Republicans have repeatedly filibustered legislation that would grant them an opportunity to apply for it.

Federal courts have tossed similar challenges before. Senate attorneys wrote in court papers that to take up the case would be to “do what no court has ever done — inject the judicial branch into the Senate’s internal deliberations and usurp the Senate’s power to determine its own rules and procedures.”

In a hearing sprinkled with references to the Federalist Papers, Sullivan seemed focused on whether the plaintiffs have any legal standing to challenge Senate rules, which require 60 votes to end debate on any piece of legislation. The ability to extend the debate indefinitely allows a minority of senators to block legislation that has majority support.

Sullivan pressed attorneys for the plaintiffs about why the court should get involved in reviewing the rules of the Senate and asked what remedy he could realistically provide when there is no guarantee that the immigration bill known as the Dream Act, or a proposal to expand campaign finance disclosure, would be revived.

“The legislation has died. Isn’t it sheer speculation that it would be passed again by the House?” Sullivan asked.

Attorney Emmet J. Bondurant said the plaintiffs are not looking for guaranteed passage but an opportunity for debate and a vote on bills that were initially passed by the House but blocked in the Senate.

“If it had been voted down, that’s the democratic process,” Bondurant said of the immigration bill. “It was not. It was vetoed by an undemocratic process.”

Between 1840 and 1900, there were 16 filibusters. Between 2009 and 2010, there were more than 130, according to Senate records. Senate Democrats need to meet a 60-vote threshold on virtually every piece of legislation, making it difficult — most Democrats would say impossible — to advance legislation sought in recent years by President Obama.

Senate attorneys cautioned the court against overreaching and argued that the Constitution’s “speech or debate” clause bars lawsuits against Congress and its members.

“It’s beyond the power of the court to line edit the Senate rules,” said Thomas E. Caballero, an attorney for the Senate who described the stalled bills as the “natural outcome” of the legislative process.

At one point, Sullivan asked, “So, House members are just out of luck?”

The judge gave Senate attorneys until Thursday to respond to the questions of whether there is a constitutional right to have bills passed by majority vote, and whether the filibuster process violates that right.

Senate Majority Leader Harry M. Reid (D-Nev.) has vowed that he will seek to change the filibuster rules when a new Congress convenes in January.

After hinting at the changes for months, Reid ramped up his rhetoric last week, saying: “We’re going to change the rules. We cannot continue in this way.”

But Republicans — who called for a rules change in 2005 when they controlled the chamber — now say that the filibuster preserves the rights of the minority and note that Democrats supported its use when they were in the minority. Senate Minority Leader Mitch McConnell (R-Ky.) has dubbed talk of a rules change the “nuclear option” and has vowed to grind Senate operations to a halt if Democrats move forward — a move that could even block the completion of committee assignments for new senators.

After the court hearing Monday, Bob Edgar, a former congressman and president of Common Cause, said that the Senate does have the right to craft its own rules but that courts can push back if those rules are unconstitutional.

“This is not about Democrats or Republicans,” he said. “This is about whether democracy should be based on majority rule.”

Ed O’Keefe is covering the 2016 presidential campaign, with a focus on Jeb Bush and other Republican candidates. He's covered presidential and congressional politics since 2008. Off the trail, he's covered Capitol Hill, federal agencies and the federal workforce, and spent a brief time covering the war in Iraq.
Ann covers legal affairs in the District and Maryland for the Washington Post. Ann previously covered state government and politics in California, New Hampshire and Maryland. She joined the Post in 2005.

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