Roll Call: Latest News on Capitol Hill, Congress, Politics and Elections
August 1, 2015

Filibuster Unconstitutional? D.C. Circuit Denies Appeal, Cites ‘Speech or Debate’ Flaw

Advocates asking the judiciary to declare the filibuster unconstitutional were dealt a major setback Tuesday by the D.C. Circuit Court of Appeals.

The court said it lacked jurisdiction because Common Cause and the House lawmakers associated with bringing the lawsuit had sued the wrong party.

“In short, Common Cause’s alleged injury was caused not by any of the defendants, but by an ‘absent third party’ — the Senate itself,” the court held.

A. Raymond Randolph, a senior circuit judge also highlighted the trouble with resolving that technical issue.

“[T]he complaint named neither the Senate nor a Senator. It is apparent why.” Randolph wrote. “The 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.'”

“When the Clause applies, it is an absolute bar to suit,” the opinion said, continuing:

What defeated the DREAM and DISCLOSE bills was legislative action, activity typically considered at the heart of the Speech or Debate Clause. … Yet Common Cause, in objecting to the Senate rule dealing with how Senators “Debate” legislation, named as defendants only the Vice President, in his capacity as President of the Senate, … the Secretary of the Senate; the Parliamentarian of the Senate; and the Sergeant-at-Arms of the Senate. Relying on the Supreme Court’s Speech or Debate Clause decisions, the defendants mount an argument that the Clause protects them from suit, just as it does Senators and their aides. Whether they are right is unnecessary for us to decide. In suing only non-Senators, Common Cause is “Hoist with [its] own petar.”

Which is to say, citing Hamlet, that the court found that the plaintiff’s attempt to avoid the Speech or Debate clause blew up on themselves. And there’s no obvious way around it.

“Obviously, we’re disappointed by today’s DC Circuit decision. Our attorneys are reviewing the court’s opinion before deciding on a future course of action,” Common Cause policy counsel Stephen Spaulding said in a statement.

“It’s important to note that the court’s decision was strictly procedural; the judges did not rule on the merits of our claim that the filibuster rule and its 60 vote requirement for Senate action is unconstitutional,” Spaulding added.

Comments (49)

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  1. reldim

    April 15, 2014
    5:16 p.m.

    What’s unconstitutional about it. The Constitutional drafters knew how to put in a vote requirement when they wanted to and they put in nothing about requiring that a bill pass on a majority vote. The Constitution merely says that a bill becomes law when it “passes” both the House and Senate and is signed by the President. It is silent on how a bill “passes” either chamber. Also expressly leaves the rules that will govern the chamber in the hands of the members of the chamber. So it would seem there is nothing inherently unconstitutional about the chamber setting a “super-majority” threshold for passage.

    Not to mention that the filibuster only postpones the ability of supporters to have the measure voted on. It is only the modern practice of “dual tracking” that allows that postponement to be “indefinite” and fairly painless for those filibustering. So Common Cause’s problem could be alleviated by eliminating the “dual track” – which could theoretically be done by any majority leader (since it was unilaterally imposed by Robert Byrd in the late ’70s).

    Personally I’m all for that idea – I think it would make filibusters much more costly for those trying them – not only would you be defeating the bill in question, but you would effectively be bringing the entire Senate to a halt and blocking anything else from getting done until a) you gave up the filibuster or b) the leadership decided to abandon the bill and withdraw it from consideration.

    The point of the filibuster was always that a small majority should not always get its way. A determined and very firm minority should be able to at the very least slow things down. And if they are determined enough, maybe it’s not such a great idea to be passing the measure in the first place. Remember that a majority of Senators don’t always mean a majority of voters (you can get to 51 votes by gathering the Senators from the 26 smallest states by population, which won’t get you to senators representing 51% of the people). Presumably, with filibusters very much attached to the whole party in the minority now, the electorate would punish them at the next election if there “determination” was contrary to public opinion.

  2. 1DUKEZ

    April 15, 2014
    5:59 p.m.

    I love reading about all these these attempts to change thwe interpretaion of the constitution. Just face it, the constitution is whatever the judicial branch and their sponsor politicians wants for the country. I propose a test. Take a copy of the constitution and run a poll to the people to find out how many can identify where the constitution approves abortion, government spending on education, owning more than 50% of Western land, the list goes on. Our government has successfully changed our country without firing a shot or a constitutional amendment.

    • Sam Houston

      April 17, 2014
      1:45 a.m.

      The Federalist Papers, straight from the Founder’s quills, explain how to interpret the US Constitution. It is what sold the individual State Delegations on ratifying the Constitution into Law.

      • 1DUKEZ

        April 18, 2014
        5:05 p.m.

        Little known secret.that I learned from an anonymous source, When someone gets to be a federal judge, they get a life time supply of toilet paper embossed with with copies of select government documents.
        .

  3. davesnothere

    April 15, 2014
    6:12 p.m.

    “It’s important to note that the court’s decision was strictly procedural.” A loss is a loss. Challenges to the procedure of the federal government are almost always decided on procedural grounds like standing or jurisdiction.

  4. omakone

    April 16, 2014
    10:21 a.m.

    I for one wish the Congress would quit passing laws and concentrate on simplifying and repealing some of the overly complex and unneeded laws. It seems to me that every time Congress passes a new law the unintended consequences are 10 times worse than the issue the law was originally addressing.

    For example, they passed the bill to limit the penalties that banks could charge for over drafting your account. So what happens the banks start charging higher fees or implementing fees on accounts that were previously free. So the people that are taking advantage of the system (the poor) are getting a pass on the backs of the middle class as always.

    • Sam Houston

      April 17, 2014
      1:48 a.m.

      Here! Here! Bully idea. Too bad it is based in Common Sense. This Government runs on Common Law, not Common Sense. That is a foreign concept to them.

  5. Sam Houston

    April 17, 2014
    1:43 a.m.

    Common Cause is straight up Liberal yet they claim to be non-partisan. Caught them in a lie about voter intimidation. In a report they published called ‘Deceptive Election Practices and Voter Intimidation – The Need for Voter Protection’, they claimed “eligible immigrants” were being disenfranchised from the Vote. While voting to Legal immigrants have been extended by various States of and on since the Birth of this Nation, it has been illegal for any immigrant to vote in all 50 States since 1926. It has been a privilege, never a Constitutional Right for foreign persons to vote. Fictionalized truth to feint a loss of “right” to the immigrants to effect harmful emotion against those that speak out against unchecked and open immigration.

  6. 1DUKEZ

    April 21, 2014
    5:42 p.m.

    Didn’t serve, but I think you have a great idea. Except for the stack part. I for one would have more confidence that a NCO would be more faithful to the constitution that any law student.

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