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Filibuster challenge fails in court

Civic groups, lawmakers, and individuals who believe that the Constitution requires majority rule in Congress failed in their challenge to Senate filibuster rules, as a federal appeals court decided on Tuesday that they had sued the wrong targets.  The right target, it said, would be the Senate itself.  That leaves one problem: that chamber is probably shielded by constitutional immunity.

In a decision by a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit, the challenge was blocked because the court lacked any power to decide it.  Those who sued could not show that they had a right to sue, because they were suing individuals who did not cause the failure of legislation that they favored.  The cause of injury, if any, the panel said, was the Senate itself, and it was not sued.

For the past two years, the advocacy group Common Cause, several members of the House, and individuals — all in support of legislation that failed due to filibusters — have been pursuing their constitutional claim that it violates the principle of majority rule to require sixty of the Senate’s one hundred votes to get a bill passed in that chamber, if there is any significant opposition to it — or even if, for whatever reason, forty-one senators line up against it.

The lawsuit was begun after a filibuster in the Senate in 2010 had killed two bills that had been passed by the House of Representatives — a bill to give Congress power to force more public disclosure of election campaign finances, and a measure to provide benefits to children of undocumented immigrants who had entered the country.  Neither measure was ever brought to a vote in the Senate, because filibusters were mounted and the measures were then abandoned.

The main claim of the lawsuit is that, when those who wrote the Constitution wanted to require more than a majority for the government to act, they did so explicitly in the constitutional text.  A Senate rule that essentially requires sixty votes for passage, the lawsuit argued, was unconstitutional under that principle.

A federal judge threw out the case in 2012, ruling that none of those who sued could show that they had suffered any legal injury from the filibuster rule.  They could not show that the bills would have been passed if not for the filibuster, the judge ruled.  That decision also said there was nothing the courts could do about the problem and that, in any event, the dispute was about a “political question” out of the reach of the courts.

The D.C. Circuit panel agreed with that result, but had its own reasons.  It said that, under Article III of the Constitution, a lawsuit in federal court must point to an individual or an organization that was actually to blame for a claimed injury.

In this lawsuit, the court pointed out in an opinion written by Senior Circuit Judge A. Raymond Randolph, the challengers sued Vice President Biden for his role as Senate presiding officer (now and then) and three of the Senate’s staff officers: its secretary, its parliamentarian, and its sergeant-at-arms.

The panel said it knew why the lawsuit had picked out those four to sue:  senators — and presumably, the Senate itself — cannot be sued for anything done in the way of legislative activity, because such a legal claim is totally barred by the Constitution’s Speech or Debate Clause.

It was the Senate, as a body, that adopted the filibuster rules, beginning in 1917.  And it was the Senate that maintained the rules in 2010, and it was the Senate that refused to let the two House-passed bills come to a vote.

If the court were to rule in favor of the challengers, the opinion said, it would be the Senate “that has to conduct its legislative business according to a court-ordered change in its rules.”  But, it indicated, that won’t happen, because the Senate was not sued.

The decision did not spell out specifically why a lawsuit against the Senate as a body might fail, but it made a glancing comment about one: the Speech or Debate Clause.  Although most court rulings that have dealt with that clause’s meaning have come in cases in which actual legislators or their aides were seeking the immunity from suit, it seems doubtful that a court would deny the Senate the same kind of shield against a lawsuit.

There also is the concept of separation of powers, laid out in the very structure of the Constitution’s first three articles and enforced, more or less, to keep one branch from going too far to cross over into the other’s constitutional territory.

The challengers have the option of asking the full bench of the D.C. Circuit to consider the claim, or of asking the Supreme Court to do so.  Neither the en banc D.C. Circuit nor the Supreme Court is obliged to grant review.

Recommended Citation: Lyle Denniston, Filibuster challenge fails in court, SCOTUSblog (Apr. 15, 2014, 4:57 PM),