Earlier this year, Common Cause and other organizations filed a lawsuit in Federal Court seeking to have the Senate filibuster declared unconstitutional. As I noted at the time, the lawsuit was questionable on the merits at the very least, and faced an uphill battle given the traditional reluctance of Courts to interfere in the internal operations of the Legislative Branch. The case has been sitting in Federal Court for most of the year, with most of the action centering on a Motion To Dismiss filed by the Defendants in the matter. Shortly before the Christmas holiday, the Court dismissed the lawsuit in a ruling that really shouldn’t be all that surprising:
A judge on Friday dismissed a lawsuit challenging the constitutionality of Senate rules that establish a 60-vote threshold for defeating filibusters.
U.S. District Judge Emmet G. Sullivan in Washington ruled that the plaintiffs lack the legal right to sue, and that if the court took up the case, it would offend the separation of powers among the different branches of government.
The suit was brought by Common Cause, a citizen lobby group; Democratic Reps. John Lewis and Hank Johnson of Georgia, Michael Michaud of Maine, and Keith Ellison of Minnesota; and Mexican-born Erika Andiola, Celso Mireles and Caesar Vargas. The Mexican-born plaintiffs, who live in the United States, contend that a GOP-led filibuster in 2010 prevented the Senate from voting on a bill, known as the DREAM Act, which would have given them a legal path to citizenship. They say the now risk being deported because of the filibuster of that legislation.
“Plaintiffs identify no authority for the proposition that an individual has a ‘procedural right’ to any particular form of congressional consideration or debate on a bill,” Sullivan wrote. He added that “plaintiffs’ assertion that the bills are likely to be reintroduced does not demonstrate that the bills will ever be enacted by the House and the Senate and signed by the president.”
In addition to finding that the Plaintiffs in this case lacked standing to challenge the Constitutionality of the filibuster, the Court also ruled that the Political Question Doctrine barred it from interfering in the internal affairs of the Senate in this manner:
[T]he Court finds that reaching the merits of this case would require an invasion into internal Senate processes at the heart of the Senate’s constitutional prerogatives as a House of Congress, and would thus express a lack of respect for the Senate as a coordinate branch of government. Pl aintiffs argue that judicial review of the Cloture Rule would not reflect lack of respect for the Senate; instead, it reflects respect for the Constitution. Pls.’ Opp’n at 30. According to Plaintiffs, the “federal courts show no disrespect for other branches of government when they perform their constitutionally assigned duties to review and rule upon the constitutionality of acts of the President . . . , or the joint acts of Congress and the President . . . , or of only one House of the legislative branch . . . . Such determinations fall within the traditional role accorded courts to interpret the law and do not involve a ‘lack of the respect due [a] coordinate [branch] of government.’” Id. (citations omitted). Plaintiffs provide no authority, however, for the proposition that the Court’s review of an internal rule of Congress, rather than a legislative act, would reflect respect for the Constitution and not a lack of respect for the Senate, particularly where, as here, Plaintiffs have identified no constitutional restraint on the Senate’s power to make rules regulating debate.
In Judicial Watch, Inc. v. United States Senate, although the D.C. Circuit did not explicitly reach the political question doctrine, the court noted:
While [plaintiff] may have asked for such a judicial rewrite [to require a simple majority rule for cloture on judicial nominations], our providing one would obviously raise the most acute problems, given the Senate’s independence in determining the rules of its proceedings and the novelty of judicial interference with such rules.
432 F.3d 359, 361 (D.C. Cir. 2005).
This Court agrees. Accordingly, the Court finds that, absent a clear constitutional restraint, under the separation of powers recognized by Article III, it is for the Senate, and not this Court, to determine the rules governing debate.
It strikes me that the Court got this right. It isn’t, and shouldn’t be , the purview of the Federal Courts. to determine the validity of the rules of a co-equal branch of government unless there is an explicit Constitutional bar to the rule in question. In this case, there is nothing in the Constitution that prevents the Senate from enacting a filibuster rule. Indeed, since the rule itself traces its roots back to a time when members of the Founder’s generation where in the Senate, one can conclude that they didn’t believe it was inconsistent with the Constitutional structure that they created. This case will likely be appealed to the Court of Appeals for the D.C. Circuit, but I suspect that they will come to much the same conclusion that the District Court Judge in this case. Trying to use the Courts to invalidity a validly passed Rule of the Senate simply isn’t going to work.
Garrett Epps points out that the Court decision that filibuster opponents really have only one option:
[C]ourts aren’t suited to resolve every political problem. This question in particular is entrusted to the Senate itself by Article I, § 5, cl. 2 of the Constitution, which provides that “[e]ach House [of Congress] may determine the rules of its proceedings.”
Nothing elsewhere in the text suggests that the courts should ride herd on those rules; and if federal judges begin disciplining Congress in this case, where would they stop? The Senate is, after all, the branch of Congress in which the Democrats hold a majority. Given the conservative dominance of the federal courts, I would think progressives would be hesitant about inviting Sam Alito and Nino Scalia to decide how the body shall operate.
The Democratic majority needs to handle this crisis itself, It can enforce filibuster reform through a rule change at the opening session January 3. These is an ongoing dispute about whether this would take 51 votes or 67 — an unattainable super-majority. Pushing through reform with 51 votes — or 50 votes plus Vice President Joe Biden — has been called the “nuclear option” because it would represent a power play by the majority.
Senate Minority Leader Mitch McConnell recently warned that if Democrats pursue the “nuclear option” to impose limits on the filibuster, “the fighting, the bitterness, and the gridlock will only get worse.” This is a bit like hearing the first mate say, “Sir, hitting a second iceberg might make Titanicsink faster.” The last two years were a near-death experience for the Senate; another two like it and the body will have drowned in its own bile. Given the political facts of post-election America, McConnell’s posture is a bluff, and should be called.
The real threat to filibuster reform is the hesitancy of some senior Democrats. They remember when their party used the filibuster — to a much lesser extent — to oppose judicial nominees named by George W. Bush. News reports suggest that, behind the scenes, these elders are warning that the day may come when Democrats are a minority and need filibusters to fight the Republicans.
This is what derailed filibuster reform in 2011, of course, and it appears that Harry Reid is running up against the same sort of opposition this time around. He does have the luxury of a larger majority this time around, but if there are enough Senior Democrats reluctant to make major changes to a rule that they know, from experience, their party will need to use in the future then even that larger majority may not be enough to pass anything more than minor reforms. Additionally, using the “nuclear option” now creates a precedent for the future that Democrats may be reluctant to set. In either case, we’ll know in about a week if filibuster reform will actually happen this time. Whatever happens, though, it’s clear that it won’t be happening through the Courts. And that’s not a bad thing.
Here’s the opinion:
