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.