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Court Hears Arguments on Constitutionality of the Filibuster

While Senators work out a potential compromise on the filibuster, one which would in all likelihood keep the option of a supermajority requirement for legislation and confirmations intact while constraining it somewhat, a group of House Democrats have gone to federal court to challenge the filibuster as an unconstitutional procedure:

A federal judge began hearing arguments Monday in a case about whether Congress is constitutionally required to pass legislation by a simple majority vote and whether the Senate’s filibuster rules violate such a requirement.

The debate over changing the rules of the Senate moved to federal court just blocks from the Capitol on Monday as U.S. District Judge Emmet G. Sullivan considered a legal challenge to the chamber’s rules.

Four House Democrats and the nonpartisan government-accountability group Common Cause have sued to end the filibuster, calling it an unconstitutional “accident of history” inconsistent with the “principle of majority rule.”

Keith Ellison, Hank Johnson, John Lewis and Mike Michaud are the House Democrats participating in the lawsuit.

I would consider this something of a longshot. The same part of the Constitution that reformers in the Senate want to use to change the rules by majority vote – Article 1, Section 5 – would seem to prohibit an outside actor from demanding alterations to the Senate rules not determined by the body. It clearly states in Article 1, Section 5 that “Each House may determine the Rules of its Proceedings.” I don’t know how members of the House get around that, or more to the point the judiciary, to strike down the filibuster rule. Indeed, the courts have refused to step in on this matter every other time they have been asked to.

However, the plaintiffs in the case argue that the filibuster has denied certain rights to people, including three undocumented immigrants who are party to the case, who would otherwise become citizens if the Senate hadn’t filibustered legislation that would put them on that path through the DREAM Act. They argue that there is a Constitutional right to legislation getting a majority vote. The Constitution does prescribe certain types of votes needing a super-majority (treaties, Constitutional amendments, impeachment), so by association you could argue that a majority vote would be sufficient on all other votes.

Judge Emmet G. Sullivan wanted mainly to know why his court should involve himself in the Senate’s rules, and whether these plaintiffs could force the Senate to change their procedures. Indeed, the current makeup of the House would not pass the DREAM Act, and so even with a change to the Senate rules, the court could not guarantee the restoration of rights to the immigrants.

The Senate hired an attorney to argue against judicial intervention in their rules process.

I’m not terribly hopeful that a judge will bail the country out on this and end the super-majority Senate. Its own members will probably have to do that on their own.

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David Dayen

David Dayen