Prior posts have discussed the internal Senate movement for reforming its filibuster rule that now requires 60 of the 100 Senators to agree to vote on the merits of most proposed legislation and confirmation of presidential appointments. Other posts have covered the pending federal lawsuit challenging the constitutionality of that rule.

There have been further developments on both fronts.

Internal Senate Efforts

Jeff Merkley, Democratic Senator from the State of Washington and the leader of the filibuster reform effort, is building a simple majority (at least 51 votes) for reforming the filibuster rule on January 3, 2013, when the new session of Congress opens. His basic proposal is the so-called “talking filibuster” with these major points according to his December 12, 2012 memo to fellow Senators:

• If at least 41 Senators voted for additional debate on a legislative proposal, there would be additional debate.
• Such additional debate would require at least one Senator to be on the floor presenting arguments on the proposal.
• If there were no Senator present to speak to the proposal, the presiding officer would rule that extended debate was over, and the Majority Leader would schedule a simple-majority cloture vote to end all debate after an additional 30 hours of debate,

Approving such a change by a simple majority vote has been called “the nuclear option” or “the constitutional option.”

In response to a simple majority coalescing to support such a reform, some of the leading Senate Republicans (John McCain, Lamar Alexander, Jon Kyle and Lindsay Graham) are trying to convince Democratic Senators (Mark Pryor, Carl Levin and Chuck Schumer) who are reluctant to use the “nuclear” or “constitutional” option to embrace a more limited reform that could be supported by 67 Senators (the number required by the existing Senate rules). The exact nature of such a more limited reform has not been disclosed. Nor has the likelihood of enlisting 67 Senators to support such a more limited reform been assessed.

Moreover, many observers are skeptical about the ability of the “talking filibuster” proposal put forward on December 12th by Senator Markley to stop the dysfunctionality of the Senate. They point out that the proposal does nothing to prevent “holds” by individual Senators that prevent Senate action or to prevent the offering of amendments during a debate. Nor does this proposal ban filibusters on motions to proceed with consideration of a bill or nomination or require any Senator’s remarks to be germane to the matter at hand. Moreover, who doubts the willingness of the Republican Senators to talk and talk?

As we come closer to January 3rd, a failure to resolve the “fiscal cliff” stalemate may preempt attention to filibuster reform that day and politically eliminate the possibility of changing the filibuster rule by a simple majority.

Litigation over the Filibuster Rule

In May 2012 Common Cause, four members of the U.S. House of Representatives and three private citizens sued certain Senate officers. The complaint alleged that the filibuster rule was unconstitutional, and the defendants moved to dismiss the complaint on various grounds.

On December 5th the U.S. District Court for the District of Columbia issued an order asking that at the upcoming hearing on the dismissal motion the parties should be prepared to discuss all arguments set forth in the briefs and in particular to address Plaintiffs’ vote nullification theory of standing for the plaintiffs who are members of the House of Representatives.[1] The following are the parties’ arguments on that theory from their previously filed briefs:

• According to the plaintiffs, the House member plaintiffs were in the majority when the House passed the Development, Relief and Education for Alien Minors Act (the DREAM Act) on December 8, 2010, only to have it die in the Senate when it subsequently failed to invoke cloture of the debate 55-41. So too the House member plaintiffs were in the majority when the House passed The Democracy Is Strengthened by Casting Light On Spending in Elections Act (the DISCLOSE Act), 219 to 206, on June 24, 2010 only to have it die in the Senate when a vote for cloture of the debate failed, 59-39 on September 23, 2010. As a result, it is contended, these plaintiffs’ legislative votes were nullified by the Senate’s filibuster rule, and they have standing to sue under Raines v. Byrd, 521 U.S. 811 (1997); Coleman v. Miller, 307 U.S. 433, 438 (1939); and D.C. Circuit cases.
• The defendants, on the other hand, assert that the House members lack standing under Raines because they have not been individually deprived of something they are personally entitled to  and because their votes would not have been sufficient by themselves to defeat or enact a bill if they had not been nullified.

The December 10th two-hour hearing itself apparently focused on the issue of whether the plaintiffs had standing to bring the lawsuit. Judge Emmit G. Sullivan said the case raised difficult issues and at the end of the hearing asked defense counsel to submit a short brief on certain questions. Later that same day, however, the court limited the request for an additional brief to whether the court could address the political question doctrine without reaching the issue of standing.

The defendants’ supplemental brief of December 11th cited precedents from the U.S. Supreme Court and the U.S. Court of Appeals for the District of Columbia Circuit holding that a federal court may address the issue of lack of justiciability under the political question doctrine without first addressing the issue of the plaintiffs’ standing to bring the lawsuit.

The next day the plaintiffs filed their supplemental brief agreeing with that legal proposition. However, they argued, the case was justiciable on the grounds of U.S. Supreme Court cases holding that rules of the Senate or the House are subject to judicial review. In short, said the plaintiffs, there was no “political question” foreclosing the courts from considering this case.

We now await the court’s ruling on the dismissal motion.