Common Cause on May 14, 2012, started a lawsuit alleging that the U.S. Senate’s filibuster Rule (Rule XXII) was unconstitutional. Other prior posts reviewed the history of that rule and the argument as to why that rule was unconstitutional.
Now we look at the jurisdictional issues raised by the July 20, 2012, motion by defendants to dismiss the complaint; the August 27th plaintiffs’ opposition to the motion, and the September 18th defendants reply to that opposition. The hearing on the dismissal motion has been scheduled on December 3, 2012, before Judge Emmet G. Sullivan of the U.S. District Court for the District of Colombia.
The following are the three jurisdictional issues: (1) whether the plaintiffs have standing to bring this suit; (2) whether the Constitution’s Speech or Debate Clause bars this suit; and (3) whether the complaint presents a non-justiciable political question.
Standing To Sue
Article III of the Constitution sets forth provisions regarding the “judicial Power of the United States” and extends such Power to “Cases” and “Controversies.” A necessary part of any such “Case” or “Controversy” is a plaintiff with standing to bring suit.
To satisfy this standing requirement a plaintiff must show that: (1) the plaintiff “has suffered an injury in fact (an invasion of a legally protected interest which is concrete and particularized and actual or imminent); (2) the injury was caused by the defendant’s challenged conduct; and (3) the injury is likely to be redressed by a favorable decision by the court.
All of the plaintiffs fail to meet this standing requirement because, defendants argue, none of the plaintiffs has alleged a cognizable injury in fact and the alleged injuries are not traceable to the defendants’ actions and are not redressable by the court in this lawsuit.
Indeed, the courts have dismissed three prior lawsuits attacking the filibuster rule over the last two decades because those plaintiffs lacked standing to sue.
The plaintiffs cannot and do not challenge the major legal premise of this argument. Instead, they argue that they satisfy the requirement for various reasons and that the three prior cases are distinguishable.
Speech or Debate Clause
Article I of the Constitution sets forth provisions regarding the Legislative powers of the United States and provides in Section 6(1) that “for any Speech or Debate in either House [of Congress], they [Senators and Representatives] shall not be questioned in any other Place.”
The Supreme Court has consistently read this Clause broadly to effectuate its purposes to provide immunity from lawsuits for all actions within the sphere of legitimate legislative activities. This is true for federal legislators themselves and for congressional officers and employees.
Here, defendants assert, all of the alleged actions by the Senate officers fall within the scope of that legitimate legislative activity. The Powell case discussed below, they say, is distinguishable because it concerned non-legislative conduct.
Vice President Biden as President of the Senate is not covered by the Clause because he is not a Senator; his duty is to preside over the Senate is derived from the Constitution, not from the Senate; the Vice President may not speak or debate on the Senate floor; and his membership in the Senate is prohibited by the Constitution (Art. I, § 6 (2)).
The other defendants are not protected by the Clause. In Powell v. McCormick, 395 U.S. 486, 503-08 (1969), the Supreme Court held that the House of Representatives’ Clerk, Sergeant-at-Arms and Doorkeeper were not protected in a lawsuit alleging that member-elect Adam Clayton Powell was unconstitutionally excluded from the House even though they were acting pursuant to the express orders of the House.
Under U.S. Supreme Court precedents, claims that raise political questions are not judicially cognizable and must be dismissed.
According to those precedents, such a political question arises when (1) the claims involve a matter textually committed by the Constitution to another branch, here the Senate; or (2) there is a lack of judicially discoverable and manageable standards for resolving the claims; or (3) resolution of the claims would require the court to intrude into another branch’s internal proceedings and thereby express a lack of respect for that branch.
Each of those alternative requirements is satisfied in this case.
First, the Constitution in Article I, Section 5(2) provides, “Each House [of Congress] may determine the Rules of its Proceedings.” Moreover, the Supreme Court has determined that to present a justiciable challenge to such rules, the plaintiff must identify a separate constitutional provision limiting those rules. Here, however, the defendants argue, there is no such separate provision.
Second, according to the defendant s, there are no judicially manageable standards to determine appropriate limits on debate in the Senate or whether or how such debate could be terminated.
Third, again per the defendants, this case would require the court to make an invasive inquiry into internal Senate processes–scheduling of legislative business, establishing and interpreting its rules, allowing debate within the Senate, determining how long such debates may continue and deciding when and how to schedule votes.
The validity of a Senate rule is not the kind of political question that is nonjusticiable, and the Supreme Court has resolved many cases with political implications.
The validity of a Senate rule is not textually committed solely to the Senate by the Constitution like its “sole Power” to try impeachments (Art. I, § 3(6))(emphasis added))
Indeed, the Court has reviewed the validity of other Senate rules in resolving other cases. In the Powell case, for example, the Court held that the Constitution’s delegation of power to each house of the Congress to be the “Judge of the . . . Qualifications of its own Members” (Art I, § 5(1)) did not reflect a “textual commitment to the House, in its own discretion, to determine whether a Member-elect could be seated.”
The plaintiffs merely ask the court to declare that the super-majority vote necessary for cloture be declared unconstitutional. Such a declaration would leave Rule XXII in place as a procedure for closing debate, but with a simple majority vote required. Therefore, there is no problem of having judicially manageable standards.
Finally judicial review of Senate Rules XXII and V would not reflect any lack of respect for the Senate. Instead, it would show respect for the Constitution.
Although I have some familiarity with these issues from my years of practicing law and have expressed my personal opinion against this Senate Rule , I have not read or re-read the many legal authorities cited by the parties. Therefore, I am not able to make a quasi-judicial evaluation of the relative merits of these arguments.
With that caveat, I think the dismissal motion should be denied with two exceptions. First, the four members of the House of Representatives and three “Dream Act” plaintiffs should be dismissed for lack of standing. This would leave Common Cause as the sole plaintiff. Second, the case against Vice President Biden should be dismissed on the basis of the Speech or Debate Clause.
 The defendants are Vice President Joseph F. Biden (as the Senate’s President), Nancy Erickson (as the Senate’s Secretary), Elizabeth MacDonough (as the Senate’s Parliamentarian) and Terrance W. Gaines (as the Senate’s Sergeant-at-Arms).
 Memorandum of Points and Authorities in Support of Defendants’ Motion To Dismiss at 15-45, Common Cause v. Biden, No. 12-cv-0075 (D.D.C. July 20, 2012).
 In addition to Common Cause, the plaintiffs are four members of the U.S. House of Representatives (John Lewis, Michael Michaud, Henry (“Hank”) Johnson and Keith Ellison) and three so-called “Dream Act” plaintiffs (Erika Andiola, Celso Mireles and Cesar Vargas).
 Brief of Plaintiffs in Opposition to Motion To Dismiss at 22-70, Common Cause v. Biden, No. 12-cv-0775 (D.D.C. Aug. 27, 2012).
 Reply Memorandum of Points and Authorities in Support of Defendants’ Motion To Dismiss at 3-25,, Common Cause v. Biden, No. 12-cv-0075 (D.D.C. September 18, 2012).