Filibuster Challenge Goes to Court

Judge Emmet G. Sullivan (D.D.C.) heard oral arguments on Monday on the defendant's motion to dismiss in Common Cause v. Biden, the case challenging the Senate's filibuster rule.  We posted on the case back in May, when it was filed.  Roll Call summarized the arguments here.  Common Cause has a case resource page here.

Recall that Common Cause filed the case along with four Democratic House members arguing that the Senate's cloture rule, Rule XXII, which requires 60 votes to end debate on a matter, violates the constitutional background principle of majority rule.  Common Cause argued that the Senate filibustered the DREAM Act, harming certain aliens.  See our May post for more on the particular arguments and for background on the filibuster.

According to Roll Call, the arguments today focused on standing: whether the House Dems had it (based on the Senate holding up their favored legislation on filibusters), and whether Common Cause's clients had it (based on their claim that the Senate would have passed the DREAM Act but for the filibuster).  Roll Call reports that Judge Sullivan was deeply engaged and asked for further briefing because the lawsuit raised "complicated issues."  But even if the plaintiffs get past standing, they'll certainly face other hurdles before Judge Sullivan will ever rule on the merits--the political question doctrine and the Senate's authority to determine its own rules, just to name a couple.  (Anticipating these objections, Common Cause says that if a court can review an Act passed by the Senate, it can certainly review a Senate rule.)

The oral arguments come in the midst of increasing talk of filibuster reform in the 113th Congress.  We covered the issues and linked to resources when there was similar talk at the beginning of the 112th Congress.

SDS