The Senate Filibuster - Common Cause v. Biden

Recently, a group of democrats (John Lewis (GA), Michael Michaud (ME), Henry Johnson (GA), and Keith Ellison (MN)) serving in the House of Representatives along with a non-profit group called Common Cause and three undocumented immigrants sued the United States Senate over the Senate filibuster rule.  The Plaintiffs cited the DREAM Act on immigration reform and the DISCLOSE Act on campaign finance reform as examples of legislation that failed to come to a vote in the Senate due to a filibuster.  The case, Common Cause v. Biden (Docket Number: 12-775),  alleged that the filibuster's 60 vote requirement to end debate (cloture) was unconstitutional because it was not consistent with majority rule.  The Plaintiffs also challenged Senate Rule 5 which allows the Senate's rules to continue from one congress to the next unless changed.  The Plaintiffs argued that the Senate should be able to change its rules by a majority vote

The defendants moved to dismiss the case under FRCP 12(b)(1) for lack of subject matter jurisdiction.  The defendants asserted that the Plaintiffs lacked standing to bring the suit, that the suit is barred by the speech and debate clause of the constitution, and that the complaint is an non-justiciable political question. 

Judge Emmet Sullivan of the United States District Court for the District of Columbia held that the Plaintiffs lacked standing to sue.  The house plaintiffs alleged that they were injured as the filibuster effectively nullified their votes in the house.  They claimed that they had a procedural right to have a bill fairly considered by the Senate though they did not claim a right to have legislation passed by the Senate.  This was not convincing to the court which could not identify a right that they were denied by the filibuster.  The DREAM Act plaintiffs claimed that they were injured by not being able to benefit from the DREAM and DISCLOSE Acts.  The court ruled that this was a hypothetical injury as neither law has been passed by congress and there is no guarantee that they will be.  Judge Sullivan also stated that the court would offend the separation of powers if it were to strike down the filibuster rule.  The court ruled that the challenge to the filibuster rule presented a non-justiciable political question.

http://thehill.com/blogs/blog-briefing-room/news/274277-judge-dismisses-lawsuit-from-house-dems-challenging-filibuster

The opinion is here: https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2012cv0775-25

More information about the Filibuster can e found in NPR's Planet Money Podcast: http://www.npr.org/blogs/money/2012/12/11/166993494/episode-422-schoolhouse-rock-is-a-lie-or-how-the-filibuster-ate-washington

s/ Kurt Koehler
The Law Office of Kurt T. Koehler,
 308 1/2 S. State Street
Ann Arbor, Michigan (MI) 48198 (Washtenaw County)