Tag: Common Cause

Will Upcoming U.S. Presidential Election Be Legitimate? 

Any country that claims to be a democracy in the midst of the Covid-19 pandemic should be taking steps to encourage maximum voter participation while protecting voters from risking their health. Such steps would include facilitating voter registration and maximizing the use of voting by mail. That seems self-evident. Yet it is not happening throughout the U.S., and, as is usual in our complex federal system, the rules governing this November’s U.S. election are complicated.[1]

Introduction

While every presidential election year brings an increase in voting rights litigation, the current pandemic has multiplied the number of lawsuits filed in the past 3½ months. Democrats and voting rights advocates are pursuing cases to make it easier to vote by mail, filing more than 60 lawsuits in 25 states.

These lawsuits “are now poised to shape the details of how roughly 130 million registered voters are able to cast ballots in upcoming contests.” However, “conflicting court decisions could exacerbate the differences in voters’ experiences at the ballot box in November. And as the fights play out, the uncertainty is further complicating election officials’ ability to prepare for the vote.”

The American Civil Liberties Union’s Dale Ho, who supervises its voting litigation, says, “I think it’s clear we have a potential disaster on our hands on Election Day if we can’t process as many votes as possible beforehand. The alarm bells are going off. It’s not just some sort of hypothetical as a problem — we’ve seen it as a problem multiple times. It will repeat in November. The question is how much and in how many places and how badly.”

A Democratic elections attorney, Marc Elias, agrees. “When the political branches fail to protect voting rights, it is left to the courts to do that. If the political branches were functioning the way they’re supposed to, you would have Republicans and Democrats agreeing to increase access to absentee voting. You’d be putting in place safeguards to make sure every eligible voter who casts a ballot has that ballot counted. . . . Unfortunately, the Republican Party is taking its cues from Donald Trump.”

Common Cause’s director of voting and elections, Sylvia Albert, said decisions about how to handle voting during a pandemic are not easy but “have to be made.” She added,“There is no waiting it out,” noting that as more time passes, the shorter the window for educating voters about any changes becomes. “As a state legislator, as a secretary of state, as a governor, you are responsible for ensuring that voters can access the ballot. By not moving ahead, they’re really abdicating their responsibility to the voters.”

President Trump’s Opposition to Mail Voting

The principal cause of the problem of this election is President Trump, who has made it clear that he is determined to curtail access to mail ballots, claiming without evidence that their use leads to widespread fraud. “My biggest risk is that we don’t win lawsuits,” the president said in June in an interview with Politico. “We have many lawsuits going all over. And if we don’t win those lawsuits . . . I think it puts the election at risk.” As a result, the GOP is pushing to limit the expansion of voting by mail, backed by a $20 million Republican National Committee effort and help from conservative groups.

However, there is no evidence that mail voting leads to the kind of massive fraud Trump has described. A recent analysis by The Washington Post found that cases of potential fraud have been exceedingly rare in states that conduct voting exclusively by mail.

Nevertheless, with “Republican governors under pressure from President Trump not to expand voting by mail and many legislatures adjourned for the year or deadlocked along party lines, changes in the coming months are likely to come through court decisions.” As a result, this blogger fears that the Trump Administration will do anything and everything to try to steal this year’s presidential election.

Fortunately former Republican Governor of Massachusetts, Bill Weld, has come out against Trump on this (and other) issues. He says,“absentee voting has been around since the Civil War and . . ., increasingly, states both red and blue are not just allowing but also encouraging citizens to vote by mail.”[2]

Indeed, Weld says, “Public support for voting-by-mail was in place long before the novel coronavirus came along. In the past week, Colorado and Utah conducted successful, smooth primary elections almost entirely by mail, with strong turnouts and no need for voters to stand in unhealthy lines. For a highly contested June 23 primary, Kentucky’s Democratic governor and Republican secretary of state worked together to make absentee voting less cumbersome. It worked, and turnout was at near-record levels. . . . The only problems Kentucky encountered resulted from the covid-19-driven consolidation of in-person, Election Day polling places.”

Weld also notes that public opinion polls show nearly 80 percent of voters support giving all voters the option of voting in person or voting absentee. That includes a majority of Republicans — the president’s paranoia notwithstanding.”[3]

Therefore, Weld concludes, “To my fellow Republicans, I plead with you to not follow Trump off this cliff. A political party that brands itself as the party of exclusion, disregard for citizens’ safety and thinly veiled vote suppression is not a party with a future.”

 State Developments on Mail Voting

Here is an attempted analysis of where at least some of the states stand on rules for the November 3, 2020 election.

Alabama. Because of the virus, Alabama officials are allowing any registered voter to cast an absentee ballot in the upcoming election without having to cite a valid reason. In  a lawsuit filed by civil rights groups citing coronavirus dangers, Birmingham-based U.S. District Court Judge Abdul Kallon on June 15 struke down a requirement for absentee voters to submit a copy of a photo ID and to have their ballots signed off by two witnesses or a notary public as well as lifting a statewide ban on curbside voting at polling places. The judge said he would permit willing counties to allow drive-up voting, but he stopped short of requiring such an accommodation. This order was upheld by the 11th Circuit Court of Appeals, but on July 2, the U.S. Supreme Court, 5-4,  reversed that order for the July 14 primary runoff election for the U.S. Senate between Jeff Sesssions and Tommy Tuberville.[4]

California, Nebraska (counties < 10,000) and North Dakota provide counties the option to conduct all voting by mail. In addition, California Gov. Gavin Newsom (Dem.) ordered election officials to proactively send absentee ballots to all active registered voters in the state for the general election. This move drew fierce opposition from the right, including a lawsuit from the Republican National Committee, but the change subsequently was authorized by a new state law.[5]

Colorado, Hawaii, Oregon, Utah and Washington authorize all voting by mail. “For these elections, all registered voters receive a ballot in the mail. The voter marks the ballot, puts it in a secrecy envelope or sleeve and then into a separate mailing envelope, signs an affidavit on the exterior of the mailing envelope, and returns the package via mail or by dropping it off.”[6]

District of Columbia. It will send absentee ballots to all registered voters.

Georgia. The GOP Secretary of State mailed absentee ballot request forms to voters for the June 9 primaries. The Republican House Speaker, however, warned that expanded absentee voting could lead to fraud, and a state House committee approved a measure that would bar the mailing of absentee request forms for the fall, but the bill failed to pass before the legislature adjourned. The Georgia Secretary of State, however, already had said his office lacked funds to send ballot request applications for the general election, even though,

“By a wide margin, voters on both sides of the political spectrum agree that sending absentee applications to all active voters was the safest and best thing our office could do to protect our voters at the peak of COVID-19.”

Illinois and Michigan. This year these states will mail absentee ballot applications to all registered voters.

Iowa. Gov. Kim Reynolds (Rep.) signed a bill into law that will require the secretary of state to seek legislative approval to send absentee ballot request forms to voters before November. This was seen as a rebuke to Iowa’s Republican Secretary of State, who mailed the forms to voters for the primary last month, resulting in a new turnout record for a June primary in the state.

Massachusetts. For the rest of this year this commonwealth has chosen to abandon its requirement for an excuse for an absentee ballot.

Missouri. As a result of an ACLU lawsuit, the Missouri Legislature adopted a statute expanding voting by mail during the pandemic, while retaining the statutory requirement for a notarization of the ballot with the legitimacy of that requirement still being litigated under a ruling by the Missouri Supreme Court.[7]

Pennsylvania. The Trump campaign recently sued to stop voters from using drop boxes to return completed absentee ballots and block ballots from being counted if they do not arrive inside the provided secrecy envelope. The Complaint alleged that mail voting “provides fraudsters an easy opportunity to engage in ballot harvesting, manipulate or destroy ballots, manufacture duplicitous votes, and sow chaos.” The Democratic Party obviously is opposing this lawsuit

Tennessee. Last month a Nashville judge ruled that any eligible voter who is concerned about contracting covid-19 at a polling place may cast an absentee ballot this fall, even though state law would typically require that voter to qualify using an excuse. The state Supreme Court declined last week to stay that decision after a request from Republican Secretary of State Tre Hargett.

Texas. The Texas Democratic Party and several voters sued in federal court to allow all eligible Texas voters to vote by mail, at least during the coronavirus pandemic, on the ground that the state’s over-65 age limitation for such voting allegedly was unconstitutional, which contention was upheld by a trial court’s injunction, but reversed by the appellate court with the U.S. Supreme Court on June 26th rejecting an emergency appeal by the plaintiffs and remanding the case to the appellate court. (Justice Sotomayor urged the appellate court to consider the case “well in advance of the November election”).[8]

Wisconsin. On June 29, the U.S. Court of Appeals for the 7th Circuit ruled that after more than three years, Wisconsin must reinstate several Republican-backed voting restrictions, including limits on early voting. The original GOP policies were struck down in 2016 for discriminating against minority voters, a conclusion the appellate panel rejected this week.[9]

Guarding Legitimacy of this Year’s Presidential Election

Great concern over the integrity of this presidential election has been expressed by William A. Galston, the Ezra K. Zilkha Chair in the Brookings Institution’s Governance Studies Program, a former policy advisor to President Clinton and a Wall Street Journal columnist.  He said, “After a quarter-century of toxic division, our democracy is imperiled. A contested election could tip the U.S. into a devastating crisis of legitimacy, a prospect that every patriot must regard with dismay.”[10]

Therefore, Galston suggested four ways to minimize the risks in this upcoming election.

First, “To reduce pressure on the mail-in option, localities must provide the fullest possible opportunity to vote in person, as New York University law professor Richard A. Pildes has argued. This means increasing the number of polling places while expanding opportunities for early voting. Many elderly poll workers will be reluctant to do the job this year; large numbers of younger Americans should be recruited and trained to replace them. Schools should continue to serve as polling places, as they have for decades, and Election Day should be a school holiday.”

Second, “states should do what they can to facilitate the fastest possible count of mail-in ballots. Mr. Pildes recommends processing the mail-in ballots that arrive before Election Day so that they can be tallied in time for the results to be included in the count soon after the polls close, a procedure that California now employs. Other states—including Michigan, North Carolina and Pennsylvania—would have to change their laws to permit this, and they should.”

Third, “As Nathaniel Persily, a co-director of the Stanford-MIT Healthy Elections Project points out, the media have a crucial role to play as well. Reporters should educate themselves and the public about the all but certain delay in the vote count that the flood of mail-in ballots will entail. Above all, media organizations should resist the urge to call the election ahead of their competitors and instead wait until enough ballots have been tallied to know the result with confidence. In the past, ill-judged early calls of key states have sown confusion. This year, the consequences could be far worse.”

Fourth, “America’s elder statesmen must do all they can to ensure election integrity. Former Presidents Bill Clinton and George W. Bush should spearhead the formation of a bipartisan committee including respected figures such as former Senate Majority Leaders Tom Daschle and Trent Lott, former Secretaries of State Madeleine Albright and Condoleezza Rice, and former Secretaries of Defense Leon Panetta and Robert Gates, along with lawyers and election experts from both parties who have served in previous presidential campaigns. Committee staff should be ready to investigate charges of fraud as soon as they arise and observe the counting of mail-in ballots if asked. Committee leaders should announce their findings as quickly as accuracy permits and stand united in their defense.”

Such a committee’s “most important tasks would be meetings soon after Labor Day with Senate Majority Leader Mitch McConnell and House Speaker Nancy Pelosi. These leaders should be asked for a public pledge to stand together against unsubstantiated claims that the election has been stolen and to do their utmost to persuade elected officials in their respective parties to stand with them.”

Conclusion

In addition to all of the above litigation, the Supreme Court still has to resolve two cases about so-called “faithless” electors in the Electoral College that actually elects the President. Presumably decisions in those two cases will come down this coming week and will be discussed in a future post.[11]

Another future post will examine ways to create stronger voting rights from Richard L. Hasen, Professor of law and political science at the University of California, Irvine and the author of “Election Meltdown: Dirty Tricks, Distrust and the Threat to American Democracy.”

Comments to this post for corrections and supplementation for new developments are earnestly solicited.

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[1] See generally Viebeck, Voting rules changed quickly for the primaries. But the battle over how Americans will cast ballots in the fall is just heating up, Wash. Post (July 3, 2020).

[2] Weld, Please, Republicans don’t join Trump’s crusade against voting-by-mail, Wash. Post (July 3, 2020). See also Strauss, ‘We’ve got to do something’: Republican rebels come together to take on Trump, Guardian (July 2, 2020).

[3] See also Brennan Center for Justice, Americans of All Stripes Want a Mail Ballot Option.

[4] Liptak, Splitting 5-4, Supreme Court Grants Alabama’s Request to Restore Voting Restrictions, N.Y. Times (July 2, 2020); Gerstein, Supreme Court blocks judge’s order loosening Alabama voting requirements due to virus, Politico (July 2, 2020).

[5] National Conf. State Legislatures, All-Mail Elections (aka Vote-By-Mail).

[6] Ibid.

[7] ACLU, Press Release: Court Rules Lawsuit To Allow All Missourians to Vote By Mail Without a Notary During Covid-19 Can Proceed (June 23, 2020).

[8] Liptak, Supreme Court Turns down Request to Allow All Texans to Vote by Mail, N.Y.Times (June 26, 2020); Assoc. Press, Supreme Court doesn’t wade into mail-in voting battle, Wash. Post (June 26, 2020); Barnes, Supreme Court won’t force Texans to allow absentee ballots for all voters, Wash. Post (June 26, 2020).

[9] Earlier this year there was federal court litigation over the Wisconsin primary election that lead to counting of ballots that had been mailed no later than election day. (See these posts and comments to dwkcommentaries.com: Pandemic Journal (# 10): Wisconsin Primary Election (April 10, 2020); Comment: More Criticism of Republican Strategy of Limiting Voting (April 12, 2020; Comment: More Comments on Wisconsin Election (April 13, 2020); Comment: Surprising Results in Wisconsin Election (April 14, 2020); Commnet: George F. Will’s Opinion on Voting By Mail (VBM) (April 15, 2020); Comment: Emerging Battles Over Changing State Election Laws (April 15, 2020); Comment: New York Times Editorial on Wisconsin Election (April 20, 2020; Comment: Thousands of Wisconsin Absentee Ballots Counted After Election Day (May 3, 2020).

[10] Galston, How to Prevent an Electoral Crisis, W.S.J. (June 30, 2020).

[11] Liptak, Supreme Court Seems Ready to Curb ‘Faithless Electors,’ N.Y. Times (May 13, 2020); Wegman, The Electoral College Is a Confusing Mess, N.Y.Times (May 13, 2020).

 

 

 

Courts Reject Lawsuit Challenging U.S. Senate’s Filibuster Rule

Today is Election Day in the U.S. Most public opinion polls and political commentators say that the Republican Party is likely to emerge from the election with at least a simple majority in the U.S. Senate, i.e., more than 50 Senate seats. As a Democrat I lament this likely result and probably should be glad that the Senate’s filibuster rule will provide the Democrats in the Senate with a means to block at least some of the Republican-backed measures in the next Session of Congress. But I am not pleased with the possible use of the filibuster by the Senate Democrats. I have believed, and still believe, that the filibuster rule is an abomination and should be eliminated, as has been discussed in many prior posts.

Such elimination, however, will not come from the courts.

As discussed in a prior post, on May 14, 2012, Common Cause, a non-profit organization, joined by four members of the U.S. House of Representatives and three private citizens commenced a lawsuit challenging the constitutionality of U.S. Senate Rule XXII that requires at least 60 votes to stop debate and proceed to a vote on the merits of a bill or other proposal. In other words, the rule that permits filibusters.

The U.S. District Court for the District of Colombia on December 21, 2012, dismissed the complaint in the case. (Common Cause v. Biden, 909 F. Supp. 2d 9 (D.D.C. 2012).) The court held that none of the plaintiffs had standing to bring the case and that the case presented a non-justiciable political question. This decision also was covered in a prior post.

On April 15, 2014, the U.S. Court of Appeals for the District of Colombia Circuit unanimously affirmed the dismissal of the complaint, but on different grounds.

According to the Court of Appeals, the plaintiffs failed to sue the proper defendant: the U.S. Senate or a U.S. Senator. The reason this was not done is apparent. The U.S. “Constitution’s Speech or Debate Clause provides that ‘for any Speech or Debate in either House,’ Senators and Representatives ‘shall not be questioned in any other Place.’ U.S. CONST. art I, § 6. The Clause confers immunity for any act that falls ‘within the sphere of legitimate legislative activity.’ Eastland v. U.S. Servicemen’s Fund, 421 U.S. 491, 503 (1975); see also Kilbourn v. Thompson, 103 U.S. 168, 204 (1880) (the Clause covers all ‘things generally done in a session of the House [or Senate] by one of its members in relation to the business before it’). And it protects not only elected legislators but their aides, to whom legislative work is delegated. See Gravel v. United States, 408 U.S. 606, 616-18 (1972). That is, the Clause covers aides when their conduct ‘would be a protected legislative act if performed by the Member himself.’ Id. at 618.”

As a result, the Court of Appeals held it had no jurisdiction to decide the case on the merits.

On November 3, 2014, the case ended with the U.S. Supreme Court’s denial of the plaintiffs’ petition for a writ of certiorari, i.e., refusal to hear the case on the merits. (Common Cause v. Biden, No. 14-253 (U.S. Sup. Ct. Nov. 3, 2014).)

Common Cause immediately issued a statement criticizing the Supreme Court’s action. Its President, Miles Rapoport said, “The Supreme Court’s refusal to hear Common Cause’s case challenging the constitutionality of the U.S. Senate’s filibuster rule is both shortsighted and ominous. Instead of protecting debate, the 60-vote filibuster rule has shut down discussion on important legislation, from a living wage to addressing climate change.” Rapoport added, “the extreme use of the filibuster has led to partisan gridlock and dysfunction that ultimately robs the American people of a Senate that should be responsive to the needs of our country.” Moreover, “the Supreme Court let stand a DC Circuit Court of Appeals decision that makes it logically impossible to challenge Senate rules that violate the Constitution.”

Although I share Common Cause’s disappointment in the failure to have the filibuster rule eliminated, I am not surprised by the courts’ refusal to treat the issue on the merits. Indeed, courts in our constitutional system should not be deciding issues like this.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

District Court Dismisses Lawsuit Challenging Constitutionality of U.S. Senate’s Filibuster Rule

On December 21, 2012, Judge Emmet G. Sullivan of the U.S. District Court for the District of Columbia dismissed the lawsuit challenging the constitutionality of the U.S. Senate’s filibuster rule.[1]

The court did not reach or discuss the merits of the constitutional issues even though it said that the filibuster rule was “an important and controversial issue” and that “in recent years, even the mere threat of a filibuster is powerful enough to completely forestall legislative action.” (P. 2.)[2]

Instead, there were two jurisdictional grounds given by the court for the dismissal. First, none of the plaintiffs, the court stated, had the necessary standing to sue. Second, the court found that “this case presents a non-justiciable political question.[3]

No Standing To Sue

In the introduction of the opinion, the Court said it “cannot find that any of the Plaintiffs have standing to sue,” which is a “bedrock requirement of an Article III court’s jurisdiction to resolve only those cases that present live controversies.” (P. 2.) This conclusion was elaborated in the “Analysis” portion of the opinion.

According to the court, there is a doctrine of “procedural standing” when (i) “the government violated [the plaintiff’s] . . . procedural rights designed to protect their threatened, concrete interest” and (ii) the violation resulted in injury to their concrete, particularized interest.” (P. 15.) However, the plaintiffs in this case “are unable to demonstrate that any alleged procedural right to majority consideration of proposed legislation is designed to protect [their] . . . particularized, concrete interests.” (P. 18.)

Quoting a Supreme Court case, Judge Sullivan said for an “irreducible constitutional minimum” showing of Article III standing, a plaintiff must show “(1) he has suffered an ‘injury in fact’ which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical; (2) there is a causal connection between the alleged injury and the conduct complained of that is fairly traceable to the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” (P. 14.)

The plaintiffs in this case, however, concluded the court, “cannot show that the invalidation of the Cloture Rule [the filibuster rule] has any connection to, or will have any connection to, their ability to benefit from a particular piece of legislation.” (P.27.)

Non-Justiciable Political Question

The opinion’s introduction stated, “the Court is firmly convinced that to intrude into this area would offend the separation of powers on which the Constitution rests. Nowhere does the Constitution contain express requirements regarding the proper length of, or method for, the Senate to debate proposed legislation. Article I reserves to each House the power to determine the rules of its proceedings. And absent a rule’s violation of an express constraint in the Constitution or an individual’s fundamental rights, the internal proceedings of the Legislative Branch are beyond the jurisdiction of this Court.” (P. 3.)

In the detailed analysis of this issue, the opinion appropriately quotes the relevant U.S. Supreme Court precedent of Baker v. Carr, 369 U.S. 186, 210 (1962). Judge Sullivan said that the “nonjusticiability of a political question is primarily a function of the separation of powers.” The Judge then concluded that three of the six circumstances listed by the Baker decision for such political questions were presented by this case.

First, there was “a textually demonstrable constitutional commitment of the issue to a coordinate political department.”  Here, Article I, § 5(2) of the Constitution grants each House of the Congress the power to “determine the Rules of its Proceedings.” Moreover, there is no constitutional provision that explicitly limits this power. (Pp. 37-43.)

Second, according to Judge Sullivan, “no judicially manageable standards exist against which to review the Senate’s rules governing debate.” (Pp. 43-44.)

Third, it was impossible for “a court’s undertaking independent resolution [of the case] without expressing lack of respect due coordinate branches of government.”  Indeed, said the court, “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.”  In short, “it is for the Senate, and not this Court, to determine the rules governing debate.” (Pp. 45-46.)

Conclusion

Immediately after the decision, Common Cause, the lead plaintiff, said it would appeal the case to the U.S. Court of Appeals for the District of Columbia Circuit.

[1] The complaint in this case was the subject of a prior post.

[2] A prior post discussed the merits of the constitutional challenge to the filibuster rule.

[3]  A prior post reviewed the jurisdictional arguments raised by the dismissal motion while the hearing on the motion was mentioned in another post.

Sign Petition for Reform of U.S. Senate Filibuster Rule!

U.S. Senator Jeff Merkley of Oregon is leading a campaign for a petition of public support for the Senate´s passing “meaningful filibuster reform as its first order of business when the new Congress begins” in early January 2013. He is joined in this campaign by  five other Senators—Tom Udall of New Mexico, Kirsten Gillibrand of New York, Tom Harkin of Iowa, Amy Klobuchar of Minnesota and Jeanne  Shaheen of New Hampshire–and by Senator-Elect Elizabeth Warren of Massachusetts.

I have signed this petition and urge all other U.S. citizens to do the same. All of us also should write to these Senators and Senator-Elect  and applaud them for proposing the change while urging other Senators to join them.

I do so even though I do not like the proposed reform they are advocating. It calls for a new “Talking Filibuster” rule. It would retain a rule allowing a filibuster that would prevent voting on the merits of proposed legislation or other action unless 60 Senators vote to close debate, but would require filibustering Senators “to stand on the floor and make their case to the American people with a real talking filibuster!” (Now Senators can filibuster without making any speeches, and this makes filibustering too easy to invoke and too easy to abuse.)

Senator Merkley recently elaborated on this proposal. He said under “the proposed rules, if a cloture vote[to end debate failed to win a simple majority, the bill would be killed and the Senate would move to new business. But if it won a majority — though less than a supermajority of 60 — the bill would remain on the floor for any senator who wished to opine on it. If at some point no senator rose to speak, after given several chances to do so, a new vote would be called — and only a simple majority would be needed to pass it.” Merkley also said the not yet completed proposed change might also include eliminating the filibuster on motions to proceed to debate and restrictions on filibustering efforts to send a bill to conference.

Making any change to the Senate rules at the start of a new session of the Congress permits, they will argue, adoption of new rules by a simple majority vote, rather than the two-thirds requirement (67 votes) under the current rules for their amendment. (We can anticipate that some Senators will oppose the proposed change and will argue that a two-thirds vote is still required under a long-standing Senate practice that the Senate is a continuing body and that its rules continue from one Congress to the next.) I strongly favor the argument that only a simple majority vote is necessary for these changes when the new Congress meets for the first time.

Perhaps this group of reformers believes that their modest change is the only one that stands a chance of obtaining at least 51 votes for adoption. If so, then this political judgment must be respected by the citizenry even though, in my opinion, it is not sufficient to stop abuse of the filibuster. Indeed, as discussed in prior posts, I believe this rule should be eliminated in its entirety.

The seven organizers of the petition apparently have the important backing of the current Senate Majority Leader, Harry Reid of Nevada, who  said at a November 7th press conference that filibuster reform will happen in the new Congress. Reid is proposing some modifications to the filibuster rule — most notably to eliminate the possibility of filibustering efforts to begin debate on legislation. “I think that the rules have been abused and that we’re going to work to change them,” Reid said. “We’re not going to do away with the filibuster, but we’re going to make the Senate a more meaningful place, we’re going to make it so that we can get things done.”

Changing the filibuster rule also has the support of seven other Senators-Elect: Angus King of Maine, Maria Cantwell of Washington, Tammy Baldwin of Wisconsin, Martin Heinrich of New Mexico, Mazie Hirono of Hawaii, Tom Kaine of Virginia and Chris Murphy of Connecticut.

Earlier posts have discussed my criticism of the filibuster as well as the pending federal court lawsuit by Common Cause challenging the constitutionality of the rule.

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Jurisdictional Issues for Lawsuit Challenging Constitutionality of U.S. Senate’s Filibuster Rule

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[1] to dismiss the complaint;[2] the August 27th plaintiffs’[3] opposition to the motion,[4] and the September 18th defendants reply to that opposition.[5] 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

Defendants’ Argument

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.

Plaintiffs’ Argument

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

Defendants’ Argument

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.

Plaintiffs’ Argument

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.[6]

Political Question

Defendants’ Argument

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.

Plaintiffs’ Argument

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.

Conclusion

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.

[1] 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).

[2]  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).

[3]  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).

[4]  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).

[5]  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).

[6]  As previously mentioned, I was a junior attorney for the House of Representatives in this case.

Are the U.S. Senate Rules on Filibuster and Changing Those Rules Unconstitutional?

Common Cause on May 14, 2012, started a lawsuit alleging that the U.S. Senate’s filibuster Rule (Rule XXII)[1] 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.[2] 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).[3]

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.[4]

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.

Conclusion

This argument apparently is supported by six law review articles or comments.[5] 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.

[1] 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.

[2] 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.

[3]  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.”

[4] 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.

[5] Plaintiffs’ Brief, at 16, n.30.

 

The History of the U.S. Senate’s Filibuster Rule

As discussed in a prior post, Common Cause on May 14, 2012, started a lawsuit alleging that the U.S. Senate’s filibuster Rule (Rule XXII) was unconstitutional.

On July 20, 2012, the defendants provided the U.S. District Court for the District of Colombia and the plaintiffs with a history of Rule XXII as part of the motion to dismiss the complaint on jurisdictional grounds.[1] This post will summarize that historical record.

Majority Ability To Halt Debate, 1789-1806

From the First Session of the First Congress in 1789 through 1806, the Senate provided for a motion for the “previous question,” which permitted a majority to determine whether a matter should be immediately considered on the merits or postponed.[2]

No Ability To Halt Debate, 1806-1917

From 1806 through 1917, there was no mechanism for the Senate to close debate over the objection of a single Senator who wished to speak.[3] There, however, was only one instance in the first half of t he 19th century when a minority of the Senators sought to block the Senate’s consideration of a matter on the merits. That concerned a resolution to expunge from the body’s journal its 1834 vote to censure President Andrew Jackson, but that attempt failed after the opponents had “talked and talked.”

In the early 20th century there was increased use, intensity and success of what came to be called filibusters. In 1917 such a filibuster prevented Senate passage of a bill authorizing President Woodrow Wilson to arm American merchant ships.

Adoption of Cloture Rule, 1917

Immediately after the blockage of the bill to authorize arming American merchant ships, the Senate held a special session, and on March 8, 1917, adopted a cloture rule. Under that rule, whenever 16 Senators moved to close debate on any pending measure, after a two-day hiatus, the Senate would vote on the question, “Is it the sense of the Senate that the debate should be brought to a close?” If that motion were approved by two-thirds of those voting, the underlying measure would be the pending business until it was voted up or down. Such a vote would come after each Senator had spoken for up to one hour or waived that right. This rule also restricted amendments and prohibited dilatory motions and non-germane amendments.

Experience with the Cloture Rule, 1917-1949

Although cloture was invoked four times between 1917 and 1927, the rule was circumvented by filibustering a procedural motion.

Amending the Cloture Rule, 1949

In 1949 the rule was amended to cover motions and other pending matters, but the number of votes necessary to invoke cloture was increased from two-thirds of those voting to two-thirds of the total Senate membership. The rule also continued to exclude resolutions to amend the rules.

Experience with the Amended Cloture Rule, 1949-1959

During this period filibusters were used to block civil rights legislation. As a result, public pressure increased to change the rule.

Amending the Cloture Rule, 1959

In 1959 the rule was amended to reduce the number of votes necessary to invoke cloture from two-thirds of the total Senate membership to two-thirds of those voting. In addition, the rule was expanded to cover motions to proceed to amend the Senate rules and expressed the Senate’s understanding that its rules continued from one Congress to the next.

Amending the Cloture Rule, 1975

In 1975, the Senate again amended the rule to change the number of votes to invoke cloture from two-thirds of those voting to three-fifths of the Senate membership (now 60 of 100) while maintaining a two-thirds vote of those present and voting to change the rules.

Experience with the Amended Cloture Rule, 1975-Present

Since 1975 there has been an increasing number of cloture votes and various proposals to change the rule regarding filibusters. But no additional changes in the rule have been adopted.

[1] Memorandum of Points and Authorities in Support of Defendants’ Motion To Dismiss at 3-11, Common Cause v. Biden, No. 12-cv-0075 (D.D.C. July 20, 2012). Subsequent posts will discuss (a) the plaintiffs’ legal argument as to why Senate Rules XII and V are unconstitutional; and (b) the jurisdictional issues.

[2] Plaintiffs have pointed out that at the time of the adoption of the Constitution in 1789, filibusters had been prevented in the English Parliament by its adoption in 1604 of the previous question motion and in the Second Continental Congress by its adoption of the same rule for such a motion. (Brief of Plaintiffs in Opposition to Motion To Dismiss at 9-10, Common Cause v. Biden, No. 12-cv-0775 (D.D.C. Aug. 27, 2012).)

[3] The plaintiffs say that the Senate’s elimination of the previous question rule in 1806 was a “quirk.” Its elimination apparently was due to comments by Vice President Aaron Burr that the Senate rules had become too complicated and that the previous question motion could be eliminated because it had only been used once in his four years acting as President of the Senate. (Id. at 11.)

U.S. Senate’s Filibuster Rule Under Attack

 The U.S. Senate’s filibuster rule (Rule XXII) currently requires 60 votes to stop debate and proceed to a vote on the merits of a bill or other proposal. It was designed to encourage full and careful debate, preventing the majority from steamrolling bills into law. In practice, the rule allows a minority – just 41 of the 100 senators — to stifle debate, not just slowing down the majority, but blocking it altogether.

For most of U.S. history, the Senate minority – Republican or Democratic – used the filibuster sparingly.

But in the two years of the 111th Congress (January 2009-January 2011), the minority Senate Republicans staged at least 136 filibusters. In some cases, the majority was able to muster the 60 votes demanded by the filibuster rule and move ahead. But at least 80 times, the minority was able to block action, and even debate. And these are just the filibusters we know about; in other cases, the mere threat of a filibuster persuaded Senate Majority Leader Harry Reid to abandon legislation without even trying to bring it to the floor.

This practice of the minority Senate Republicans has continued in the 112th Congress (January 2011-January 2013).

Reform of the filibuster rule is one of the major issues supported by Common Cause, a nonpartisan, nonprofit advocacy organization for citizens to make their voices heard in the political process and to hold their elected leaders accountable to the public interest.

On May 14, 2012, Common Cause, four members of the House of Representatives and three private citizens sued Senate President Joe Biden and the Secretary, Parliamentarian, and Sergeant-at-Arms of the U.S. Senate in the U.S. District Court for the District of Columbia for declaratory and injunctive relief with respect to  Senate Rule XXII.

The Common Cause complaint asserts that the 60-vote requirement in Senate Rule XXII violates the default parliamentary majority-takes-all rule, the careful balance of powers in the legislative branch and between the three branches, and the power of the Senate itself to changes its own rules (because along with Rule V (which continues the Senate rules from Senate to Senate) Rule XXII seems to require that 3/5 of Senators vote to change Rule XXII). In particular, the complaint alleges that the filibuster violates the Quorum Clause, the Presentment Clause, the power of the Vice President to break a Senate tie, the Advice and Consent Clause, and the equal representation of the states in the Senate–all of which in different ways assume majority rule. It also argues that the filibuster is in tension with the eight constitutional exceptions to majority rule.

U.S. Senator Harry Reid

In the Senate itself last week U.S. Senate Majority Leader Harry Reid admitted that its filibuster rule should be changed and confessed he had erred in not supporting such changes at the start of this session of Congress in January 2011. The precipitating cause of this admission and confession was the Republican Senators’ using the filibuster rule to prevent a vote on reauthorization of the Export-Import Bank.

Reid’s belated support for changing the filibuster rule was welcomed in an editorial in the New York Times. But the newspaper endorsed one of the minimalist proposed changes: requiring 10 senators to start a filibuster and the supporters of a filibuster to speak continuously on the Senate floor to keep it going.

Even such a minimal change would be impossible during this congressional session because another Senate rule requires a two-thirds vote (67 senators) to change the rules. It would be easier to change the rules at the start of the next session (January 2013) when only a majority vote (51 senators) would be needed for such a change changes although some senators probably would argue that such a change would still require a two-thirds vote.

Prior posts have castigated the Senate Rules as a major deficiency in our government: “The Abominable Rules of the U.S. Senate;” “The Abominable Rules of the U.S. Senate Are Modified;”  and “Miniscule Proposed Reform of Dysfunctional U.S. Senate Rules.” A post with a more general critique of the Senate  and other aspects of our national government is “The Antiquated U.S. Constitution.”