Opinion: Common Cause offers a case against the filibuster rule
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Common Cause President Bob Edgar disclosed Tuesday that his group is preparing a lawsuitto challenge the constitutionality of the Senate filibuster rule. The courts have rejected at least three previous challenges to the filibuster rule by individuals and interest groups on technical grounds, but Edgar contends that Common Cause has found a way to overcome that hurdle: by persuading one or more members of Congress to be plaintiffs. And once in court, Edgar and Common Cause board member Emmet J. Bondurant II said, the group believes it can prove that the filibuster rule conflicts with the Constitution in seven related ways.
Executives from the group stopped by The Times on Tuesday morning to lay out the legal challenge Bondurant has been preparing. At the heart of the case is the observation that the Constitution specifically calls for a greater-than-majority vote in only six instances, including the impeachment of a president and the approval of a treaty. Otherwise, the Constitution requires only that a bill ‘pass’ each chamber in identical form, with passage defined as a simple majority vote.
The Senate’s filibuster rule, by contrast, effectively blocks a bill ...
...unless it has a 60-vote supermajority, in violation of the presentment clauses in Article I Section 7, Bondurant argues in a brief on the issue. A handful of judges have opined that the filibuster doesn’t conflict with the presentment clause because it’s merely a procedural rule, or an interim step leading to the vote to pass a bill. But Bondurant contends that the substance of the rule matters, not the form, and the substance is to impose a 60-vote threshold. The practical effect of the filibuster is to require 60 votes even to debate a bill, let alone vote on it. According to Bondurant, the rule also exceeds the power that the Constitution grants the Senate in Article I Section 5 to determine its own procedures; gives ‘disproportionate power to the minority’ in violation of the ‘finely wrought’ balance of interests crafted by the framers; conflicts with the requirement in Article I Section 5 that just the presence of a quorum is required for the Senate to ‘do business’; and deprives the vice president of the power to break tie votes. Finally, Bondurant’s brief contends that Senate Rule V, which keeps the rules of the Senate in force continuously, regardless of adjournments and shifts in power, improperly enables one Congress to bind its successors. Given that Senate rules require a two-thirds vote to make any changes, it’s all but impossible to change the filibuster rule, Edgar argued. Not only do members of the Senate minority threaten filibusters routinely to influence bills and the Senate agenda, filibusters also give individual lawmakers significant leverage to extract concessions in exchange for voting to cut off debate.
The Supreme Court has been willing to consider challenges to the rules of the two chambers in the past. The problem for the previous challenges to the filibuster has been finding a plaintiff who has ‘standing,’ or the legal qualifications necessary to challenge the rule. Bondurant’s brief argues that current members of the Senate would qualify if they could show they’d been denied the opportunity to vote to pass a bill because of a filibuster. Similarly, members of the House would have standing if their votes to pass a bill were nullified when the measure was blocked by a Senate filibuster. Other possibilities include citizens who stood to gain directly from a blocked bill; presidential nominees who were denied a vote on the Senate floor; and the vice president.
Common Cause is a nonprofit group that lobbies on good-government issues, but its sentiments on the filibuster have, shall we say, evolved over the years. For example, it opposed a GOP filibuster in 1993 against a campaign-finance reform bill, but in 2005 it strongly defended Democrats’ ability to filibuster some of President Bush’s judicial nominees. ‘A longtime Senate procedure should not be scrapped simply because it is inconvenient to the goals of one political interest,’ said the group’s president, Chellie Pingree. ‘It’s an abuse of power to strip the Senate minority of a tool designed to protect its rights -- rights both parties have defended throughout the Senate’s history.’
Edgar said Bondurant’s research persuaded the board to change its tune on the filibuster. According to Bondurant, the framers chose not to allow filibusters and to permit the vast majority of measures to be approved by simple majority vote. The filibuster came into being almost by accident, Bondurant said, when the Senate dropped a little-used rule in 1806 that allowed a majority of senators to vote to cut off debate. The first filibuster didn’t occur until more than 30 years later, he said, and they remained rare until the civil rights battles in the 1970s.
Filibusters have been used on a weekly, even daily, basis since 2007. Edgar claims that such routine use of the filibuster has pushed the parties further apart, leading to a more partisan and dysfunctional legislative branch. He may be confusing correlation with causation, but there’s no question that Congress is a far less harmonious and productive place than it was when he was a Democratic congressman from Pennsylvania in the 1970s and 1980s. Of course, there are plenty of conservatives who would argue that the country is better off when the Senate is tied up in procedural knots. One side’s dysfunction, after all, can be the other side’s victory.
-- Jon Healey
