U.S. Senate Rule XXII – dwkcommentaries

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.

Open Letter to Members of the U.S. Senate in the Upcoming 113th U.S. Congress

As a Christian and a citizen of the United States and Minnesota and a Democrat, I address these comments to all members of the U.S. Senate in the upcoming 113th U.S. Congress.

First, congratulations to everyone who was elected or re-elected on November 6, 2012! And congratulations and thank you to those who will continue to be members of the Senate. You all know that you have serious obligations to “We the People” of the U.S. as well as to the citizens of your own states.

Second, when you convene in early January 2013, I plead with you to adopt new rules by a simple majority vote and shake off the “dead hand of history” practice that the Senate is a continuing body with continuing rules and that those rules (XXII (2)) require a two-thirds vote to amend the rules, including the rule on cloture or filibuster. Those new rules should abolish the filibuster.[1]

In this regard, I am pleased that at least the following Senators-elect have made statements favoring some kind of changes to the filibuster rule:

Angus King (I) Maine – “The Senate’s recent overuse of the filibuster has stalled progress on practically every issue of importance in America. The 60-vote requirement that it creates is not in the Constitution.”
Maria Cantwell (D) Washington – “I’m not going back to the United States Senate to salute stalemate.”
Tammy Baldwin (D) Wisconsin – “There have been a number of proposals that say you start with a 60-vote threshold, and maybe after a month, it is lowered — until a point that after a matter has been pending in the Senate for a very long time — where everyone has had adequate opportunity for input — the threshold needed to move forward would be a simple majority.”
Martin Heinrich (D) New Mexico – co-sponsored house measure to force reform in the Senate in 2010.
Mazie Hirono (D) Hawaii – “Washington is indeed broken and part of the problem is the misuse and abuse of the filibuster in the U.S. Senate. Senator Tom Udall has proposed several ways in which the filibuster could be reformed that I believe warrant further discussion including: eliminating secret holds and requiring Senators that use the filibuster to stay on the Senate floor during a filibuster. These proposals could potentially bring transparency and efficiency to the Senate and help increase the public’s confidence in Congress”
Tom Kaine (D) Virginia – “A filibuster has had a venerable historical purpose, and the 60 votes to overcome a filibuster, I would leave that where it is. But I would make anybody who filibusters anything to have to stand on the floor of the Senate, and stand up and say, ‘This is why I’m acting to block … whatever’s going on.’ Because at the end of the day, the American public ought to be entitled to know whether the filibusterer is like Jimmy Stewart in ‘Mr. Smith Goes to Washington,’ or just an SOB who wants to stand in the way of progress, you know?”
Chris Murphy (D) Connecticut – “The filibuster is in dire need of reform. Whether or not it needs to go away, we need to reform the way the filibuster is used, so it is not used in the order of everyday policy, but is only used in exceptional circumstances.”
Elizabeth Warren (D) Massachusetts – “We need to reform the filibuster, beginning with a requirement that anyone who wants to stop the people’s business must go out onto the Senate floor and actually filibuster, live and in person, so that the American people see precisely who is creating gridlock.”

In addition, Senator Harry Reid, the current Majority Leader, said at a November 7th press conference that filibuster reform will happen in the new Congress. Reid is not proposing to eliminate the delaying tactic — which requires 60 votes and days to overcome. But he is proposing some modifications — 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.”

Third, I urge the Democrats and the Republicans to elect new leaders. Senators Reid and McConnell should be congratulated for their service in this capacity, but new leaders perhaps would make it easier to effectuate better bipartisan cooperation. It might also be useful in this regard if two of the 20 female Senators in the next session became leaders of their parties.

Fourth, all Senators should remember that power and fame are fleeting. Don’t overplay your hand!

[1] I have written many posts about the filibuster and the need for its abolition or severe restriction.

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.