Monday, August 5, 2013

Filibuster Case Briefing

Common Cause filed its Reply Brief last week in Common Cause v. Biden, the case challenging the Senate's filibuster rule.  We posted on the case, with links, here.

Recall that the district court dismissed the case for lack of standing and for raising a political question.  The defendants in their brief raised those issues and another ground for dismissal: the claims are barred by the Speech or Debate Clause.  The defendants said that "[u]nder that Clause, Senate officers are absolutely immune from suit for any actions assisting the Senate in carrying out debate under its rules because such acts fall squarely within the sphere of legitimate legislative activity protected from questioning by the Clause."  Brief of Appellees at 21.

Common Cause responded:

Actions that violate the Constitution are not "within the sphere of legitimate legislative activity"--they are ultra vires.  As the Supreme Court held in Powell, Dombrowski and Kilbourn, "legislative employees who participated in the unconstitutional activity" are not immune from suit under the Speech or Debate Clause and are "responsible for their acts."  Powell.

Reply Brief at 30.

SDS

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