The liberal group Common Cause filed a lawsuit in Washington on May 15 against the officers of the United States Senate. The lawsuit asks a federal judge to declare one of the Senate’s internal rules unconstitutional—specifically, a provision that requires a three-fifths vote to limit debate on any given subject.
A part of Senate Rule 22, popularly known as the “filibuster rule” or “cloture motion,” provides any 16 senators may submit a motion to close debate on a bill or other proposed action. Thereafter, the affirmative vote of 60 senators (three-fifths of the full Senate) is necessary to adopt the motion. The cloture motion does not immediately force a vote on the underlying bill, however, but rather limits further debate to 30 hours total.
Other legislative bodies employ similar motions, although none require a three-fifths majority. The House of Representatives allows a simple majority to pass a resolution limiting debate on a given bill. The British and Canadian parliaments employ “guillotine motions,” again passed by a simple majority, which limits debate at a particular stage of a bill’s consideration.
In theory, there are no limits on debate in the Senate absent a cloture motion. This would allow a single senator to hold the floor indefinitely as long as he remained standing and speaking—a process famously dramatized in the famous 1939 Jimmy Stewart film, Mr. Smith Goes to Washington. In modern practice, senators don’t actually filibuster but use the threat of one to force a cloture motion.
During its early years, the Senate’s rules incorporated a “previous question” motion, which allowed a simple majority to end debate immediately. The Senate dropped this rule at the suggestion of former Vice President Aaron Burr in 1806. Burr thought the rule unnecessary as it had only been used once during his four years presiding over the Senate. Filibusters remained rare thereafter, and it was not until 1917 that the Senate first provided for a cloture motion.
Common Cause’s lawsuit claims Rule 22 is unconstitutional because it conflicts with five other provisions of the Constitution. For example, Common Clause says requiring 60 votes to pass a cloture motion conflicts with a provision of Article I that states a simple majority of senators (51) constitutes a quorum. Additionally, the lawsuit claims Rule 22 undermines the intent of the Constitution’s authors with respect to the Senate. Finally, the lawsuit notes that since the Senate’s rules provide the rules adopted during a prior Congress remain in effect until amended—an act requiring a two-thirds vote—previous senators are illegally preventing their successors from adopting revised rules by a simple majority vote.
Common Cause is a public-interest group best known for supporting restrictions on campaign spending. Common Cause previously supported Rule 22 during the administration of George W. Bush, when the Democratic minority defeated cloture motions and prevented votes on controversial judicial nominees. Now, Common Cause claims Rule 22 injured the group’s legal interests, specifically its advocacy of a campaign finance law that has the support of 59 senators and a majority of the House. The lawsuit claims that Rule 22’s 60-senator requirement forced Common Cause to “waste” resources.
Three individuals also joined Common Cause’s lawsuit as co-plaintiffs. Erika Andiola, Celso Mireles and Caesar Vargas are Mexican citizens who were brought into the United States by their parents, who were undocumented immigrant workers. They claim that Rule 22 prevented a simple majority of the Senate from adopting legislation that would help them gain US citizenship. Four Democratic members of the House also joined the lawsuit, claiming Rule 22 thwarted their efforts to pass both of the bills mentioned above. (Ironically, the lead defendant in the lawsuit is Democratic Vice President Joseph Biden, who is named in his official capacity as president of the Senate.)
Common Cause’s lawsuit faces a number of hurdles, not the least of which is its standing to challenge a Senate rule. Case Western University law professor Jonathan H. Adler noted at the Volokh Conspiracy blog, “The failure of the Senate to pass a bill is not a legally cognizable injury, even if that bill appears to have majority support.” Even if there is standing, the courts are traditionally reluctant to intervene on “political” questions committed by the Constitution to another branch of government. The lawsuit literally asks the court to re-write part of the Senate’s rules, something no judge may feel comfortable doing even if Common Cause’s argument has merit.
And while Common Cause goes to great lengths to paint the filibuster rule as antithetical to the “democratic principle of majority rule,” defender of Rule 22 can point to the potential for abuse where a majority can simply pass legislation without respecting the minority’s right to have their case heard in debate. In the United Kingdom, for example, the speaker of the House of Commons may reject a closure motion if he feels it is being used to suppress debate unfairly. In Canada, the governing Conservative Party has used its majority in the House of Commons to pass a record number of “time allocation” motions, which are similar to cloture motions, limiting the time for debate on government-sponsored legislation.
Ultimately, the Common Cause lawsuit will likely fail. But the publicity surrounding the case may force the Senate to re-examine Rule 22 and voluntarily amend or abolish the filibuster rule. The Senate Rules Committee held hearings on Rule 22 in 2010, although no action resulted. The problem, of course, is that any changes to the filibuster rule will have to overcome the filibuster rule to succeed.