Joe Biden. (Photo: Diego M. Radzinschi/NLJ.)
The U.S. Court of Appeals for the D.C. Circuit today decided not to step too deep in a challenge to the Senate’s filibuster rule.
The appeals court today struck down a suit in which the challengers, led by the advocacy group Common Cause, sued over the constitutionality of the Senate’s filibuster rule. The plaintiffs in May 2012 sued Vice President Joe Biden and three officers of the Senate. The appeals court did not rule on the merits of the case. Instead, a three-judge panel said it lacked jurisdiction to decide the case.
The outcome of the case was not a surprise. “This is not the first constitutional challenge to the filibuster. No court has reached the merits of the dispute,” Senior Judge A. Raymond Randolph wrote for the panel, which included Senior Judge Stephen Williams and Judge Karen LeCraft Henderson.
Common Cause and the co-plaintiffs, including four members of the House of Representatives, said in court papers in the D.C. Circuit that there is “widespread belief that the Senate is broken and is incapable of healing itself by the majority vote through the normal political process.”
The suit centered on bills—the DISCLOSE and DREAM acts—that had large majority support in the House but that later died in the Senate. The DISCLOSE Act was a push for greater transparency in elections spending, and the DREAM Act was an effort to provide residency to certain immigrants. Motions to end debate on the bills failed to garner the necessary 60 votes under Senate rules.
“What defeated the DREAM and DISCLOSE bills was legislative action, activity typically considered at the heart of the speech or debate clause,” Randolph wrote.
A federal district judge in Washington dismissed the Common Cause complaint, concluding that none of the plaintiffs had suffered a cognizable injury.
“In short, Common Cause’s alleged injury was caused not by any of the defendants, but by an ‘absent third party’—the Senate itself,” Randolph wrote in upholding the dismissal of the suit. The lawsuit did not name the Senate or any individual senator as a defendant. (“In suing only non-senators, Common Cause is ‘Hoist with [its] own petard,’ ” Randolph wrote, quoting William Shakespeare’s “ Hamlet.”)
The controversy over the Senate’s filibuster rules has never been higher. The Senate last year amended the cloture rule to overcome filibusters for certain nominees, including the president’s federal judicial picks.
“On November 21, 2013, the Senate considered, and defeated, a cloture motion on a nomination to a judgeship on this court,” Randolph noted today. (The nominee, Patricia Millett, was soon confirmed to the D.C. Circuit.)
Common Cause could decide to ask the full appeals court to review the panel decision, constitutional law professor Jonathan Adler noted in a post at The Volokh Conspiracy today. But the chances are slim, he said, of the suit moving forward. “Whatever one thinks of the filibuster, the suit was futile from the start,” Adler wrote.