Roll Call: Latest News on Capitol Hill, Congress, Politics and Elections
February 9, 2016

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.

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