Common Cause on May 14, 2012, started a lawsuit alleging that the U.S. Senate’s filibuster Rule (Rule XXII) was unconstitutional.
On September 18th, the plaintiffs in that case provided the U.S. District Court for the District of Colombia and the defendants with a legal argument as to why Rule XXII and Senate Rule V that continues the Rules from one Congress to the next were unconstitutional. Let us look at that argument.
Rule XXII Is Unconstitutional
1. The Constitution was adopted to remedy the defects of the Articles of Confederation, including its supermajority provisions.
Under the Articles of Confederation, no action could be taken without the approval of delegates from nine of the 13 states. This was true for a quorum and for approval of legislation.
These provisions made the government under the Articles ineffective and unable to act. As a result, the Constitutional Convention was convened to create a new governmental structure without these and other defects.
First, the Convention rejected proposals for supermajority requirements for quorum and for passage of legislation. Instead the Convention approved the Constitution that required the presence of “a Majority of each [house of Congress] [to] . . . constitute a Quorum to do Business” (Art. I, § 5(1)) and that “every Bill which shall have passed the House of Representatives and the Senate, shall . . . be presented to the President” (Art. I, § 7(2)).
Second, the Constitution was specific as to when a super-majority was required. That is the case in the following six circumstances:
- two-thirds vote of Senators present for conviction of impeachment (Art. I, § 3(6));
- (ii) two-thirds vote of each house of the Congress to expel one of its members (Art. I, § 5 (2));
- (iii) two-thirds vote of each house to override a presidential veto of a bill (Art. I, § 7(2));
- (iv) two-thirds vote of each house to override a presidential veto of an order or resolution (Art. I, § 7(3));
- (v) two-thirds vote of Senators present to provide Advice and Consent to treaties (Art. II, § 2 (2)); and
- (vi) two-thirds vote of both houses to propose constitutional amendments (Art. V).
2. The Constitution’s framers expressed their intent to reject general super-majority requirements.
Alexander Hamilton and James Madison in The Federalist Papers emphasized that the “fundamental principle of free government” was majority rule. Moreover, they said that general super-majority requirements would lead to “impotence, perplexity and disorder.”
3. Senate Rule XXII violates the Constitution’s Quorum Clause.
The Constitution’s Quorum Clause (Art. I, § 5(1))) provides that “a Majority of each [house of Congress] shall constitute a Quorum to do business.” (Emphasis added.)
But under Rule XXII a majority of the Senate cannot do business–it cannot debate, deliberate or vote– without the presence of 60 Senators to vote in favor of a motion for cloture if even one Senator wants to engage in a filibuster.
Therefore, it is unconstitutional.
4. Senate Rule XXII violates the Constitution’s Presentment Clause.
The Constitution’s “Presentment Clause” (Art. I, § 7 (2)) sets forth the same procedure for the passage of bills by both the House of Representatives and the Senate: passage by a majority of those voting. This is mandatory.
Rule XXII, however, requires a supermajority (60 votes) in order for the Senate to pass a bill if even one member objects to ending debate on the matter.
Therefore, it is unconstitutional.
5. Senate Rule XXII violates the Constitution because it is not included in one of the Constitution’s specific super-majority requirements.
As previously mentioned, the original Constitution has six specific situations calling for super-majority votes for certain actions by the Senate.
This specific enumeration of supermajority votes precludes the Senate from adding another in Rule XXII.
Therefore, it is unconstitutional.
6. Senate Rule XXII violates the “grand compromise” of the Constitution.
The “Great Compromise” of the Constitution provided each state with equal representation in the Senate and, therefore, when in the majority with the power to pass laws.
Rules XXII violates that fundamental principle of the Constitution and, therefore, is unconstitutional.
Rule V and Rule XXII Are Unconstitutional
Rule V states that “the rules of the Senate shall continue from one Congress to the next Congress unless . . . changed as provided in these rules, and Rule XXII requires a two-thirds vote to amend those rules.
These two rules in combination violate the Constitution for the reasons previously stated for Rule XXII alone.
This argument apparently is supported by six law review articles or comments. The defendants in this case, however, have not yet responded to this argument. Nor has the court ruled on the argument.
Therefore, the legal argument set forth in this post is just that–a legal argument. It is not a legal precedent.
 The history of the Senate’s Rule XXII or filibuster rule was discussed in a prior post. Another post voiced my opinion that the Senate Rules were abominable.
 This argument was set forth in the plaintiffs’ opposition to the defendants’ motion to dismiss the complaint for lack of jurisdiction. (Brief of Plaintiffs in Opposition to Motion To Dismiss at 16-21, Common Cause v. Biden, No. 12-cv-0775 (D.D.C. Aug. 27, 2012) [Plaintiffs’ Brief”].) Those jurisdictional issues will be discussed in a subsequent post.
 There are two other super-majority requirements in constitutional amendments. The Fourteenth Amendment, Section 3 requires a vote of two-thirds of each house to remove an individual’s disability from holding any federal or state office for having “engaged in insurrection or rebellion against same or given aid or comfort to their enemies.” The Twenty-Fifth Amendment, Section 4 provides that a two-thirds vote of both houses is necessary to determine that a President “is unable to discharge the powers and duties of his office.”
 Analogous support for this conclusion is provided by the U.S. Supreme Court’s decision in Powell v. McCormick, 395 U.S. 486 (1969) involving the power of each house of Congress in Article I, Section 5 (1) to “be the judge of the . . . Qualifications of its own Members.” The House of Representatives had excluded Member-elect Adam Clayton Powell from Harlem because of his personal conduct outside of Congress and even though he satisfied the qualifications for membership set forth in Article I, Section 2(2): attainment of the age of twenty-five years plus seven years as a U.S. citizen and being an inhabitant of the state in which he was chosen. The Court held that “in judging the qualifications of its members, Congress is limited to the standing qualifications prescribed in the Constitution.” As previously mentioned, I was a junior attorney for the House of Representatives in this case.
 Plaintiffs’ Brief, at 16, n.30.
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