With momentum building inside the U.S. Senate to reform the filibuster rule, Common Cause was in federal court today to argue that the rule is unconstitutional and should be discarded.
Lawyers for the non-profit government watchdog group urged U.S. District Judge Emmet Sullivan to schedule a full trial on their lawsuit challenging the constitutionality of the filibuster. Sullivan heard nearly two hours of argument on a Senate motion to dismiss the case, peppering lawyers for both sides with detailed questions about whether any court has the power to overturn the filibuster rule.
Common Cause lawyer Emmet Bondurant argued that the federal courts, representing a co-equal branch of government, have an established right to review and overturn laws passed by both houses of Congress and signed by the President. “It cannot be that a Senate rule is immune from review when a statute (passed by both houses) signed by the President is subject to review,” Bondurant asserted.
The suit, Common Cause et al. v. Biden et al., was filed last May. It cites a variety of America’s founding documents to build a case that the filibuster and its supermajority requirement for Senate action were never contemplated and actually were rejected by the framers of the Constitution.
“Partisan gamesmanship has become the norm in Congress, and the current use of the filibuster is a prime example of that,” said Representative Mike Michaud, D-ME, a plaintiff in the suit. “If successful, this court case will fix the way we do business in Washington and make Congress work again.”
“The filibuster has historically served to check an oppressive majority in matters of extraordinary importance,” said U.S. Rep. Hank Johnson, D-GA., a plaintiff in the case. “But in recent years, it has become a tool for unnecessary obstruction. It undermines the Constitution’s checks and balances, and it denies the Constitution’s guarantee of equal representations to the states.”
“The Constitution is very specific about when supermajorities are required – to remove judges or high-ranking officials during impeachment trials, to ratify treaties, expel members of Congress, override presidential vetoes and propose constitutional amendments,” said Common Cause President Bob Edgar. “But the filibuster rule essentially imposes a 60-vote supermajority requirement on every piece of legislation coming to the Senate; while the Senate has the power to make its own rules, it cannot impose rules that are incompatible with the Constitution.”
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