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Atlanta attorney Emmet Bondurant says the U.S. Senate’s filibuster rule is an accident of history that is not embodied in the U.S. Constitution and should be struck down.

The rule, which is 95 years old, violates the Constitution because it has created “a tyranny of the minority” in defiance of the intent of the document’s framers, he said.

Bondurant will fight to keep that argument alive today before a federal judge in Washington against Senate lawyers who say the judiciary cannot tell the legislative branch how to run its affairs.

Judge Emmet Sullivan of the U.S. District Court for the District of Columbia is hearing a motion to dismiss Bondurant’s case made by the Office of Senate Legal Counsel. The Senate lawyers were authorized to challenge the suit in June in a resolution co-sponsored by Senate Majority Leader Harry Reid, D-Nevada, and Senate Minority Leader Mitch McConnell, R-Ky., that passed the Senate on a unanimous voice vote.

Bondurant and Washington attorney Stephen Spaulding, staff counsel for plaintiff Common Cause, filed the suit in May on behalf of the national nonprofit organization that works for accountability and openness in government. Four members of the U.S. House of Representatives, including Democrats John Lewis and Hank Johnson of Georgia, are also plaintiffs. The plaintiffs include several undocumented young professionals living in the United States who were born overseas and, according to the suit, have been denied a path to U.S. citizenship by filibusters of the DREAM (Development, Relief, and Education for Alien Minors) Act.

Bondurant has been contemplating a challenge to the filibuster for more than two years. A member of the board of Common Cause, the Atlanta lawyer testified in April 2010 before the U.S. Senate Committee on Rules and Administration on the history of the filibuster.

Supermajority rules

Since 1917, no legislative matter debated by the Senate has been put to a vote without either the unanimous consent of the Senate as a whole or the passage of a motion ending debate—known as the filibuster or cloture rule—that currently requires the votes of three-fifths of the Senate to pass.

Securing a supermajority to bring a bill to a vote is problematic. But Senate rules also prohibit any bill, resolution or presidential nomination from being debated without the Senate’s unanimous consent or passage of a motion to proceed, according to the Common Cause complaint.

The motion to proceed is itself subject to debate and the filibuster rule with what is now a 60-vote mandate, according to the complaint. The result, it says, is that absent unanimous consent, 60 votes—rather than a simple majority of 51—also are needed to even open debate.

The logjam created by any 41 senators who want to forestall a vote “conflicts with the fundamental principle of majority rule embedded in the Constitution and on which the Constitution was founded,” the Common Cause suit asserts.

The filibuster rule “also upsets the carefully crafted checks and balances between the three branches of government by giving a dissident minority in one house of one branch (the legislative branch) the power to create gridlock, cripple and impede the effective functioning of not only the legislative branch, but also the executive and judicial branches of government,” the suit says.

The Senate’s motion to dismiss does not address the constitutional questions that form the basis of the Common Cause complaint. But it too argues that the effectiveness of government is at stake.

“This suit asks the Court to do what no court has ever done—inject the Judicial Branch into the Senate’s internal deliberations and usurp the Senate’s power to determine its own rules and procedures,” the dismissal motion states. “The Court should reject this attempt to have the Judicial Branch rewrite the Senate’s rules.”

Moreover, it claims that Common Cause and the other plaintiffs have no standing to sue because they cannot show they have suffered particular injury and because the defendants have legislative immunity from damage claims.

Senate Legal Counsel Morgan Frankel—who is defending the filibuster rule and named defendants Vice President Joe Biden, in his capacity as president of the Senate, Senate Secretary Nancy Erickson, Senate Parliamentarian Elizabeth MacDonough and Sergeant-at-Arms Terrance Gainer—would not comment on the litigation.

Questions of reform

Today’s questions about the filibuster in federal court come when talk of reforming or even eliminating it is again attracting attention. According to the Common Cause suit, during the first year of the Obama administration in 2009, there were a record 67 filibusters—double the number of filibusters that had taken place in a 29-year-span between 1950 and 1979. By the end of the 111th Congress in December 2010, that number had risen to 137.

“Threats by the minority party in the Senate to filibuster have now become so common and pervasive in the Senate that no significant bill or resolution can be debated on the floor of the Senate, much less passed by the Senate, and no presidential judicial nominee or nominee to a significant executive branch agency can receive a confirmation vote in the Senate without the support of at least 60 Senators,” the complaint said.

The filibuster has also been used by Democrats to block Republican presidential appointments. During the George W. Bush administration when the Senate was controlled by Republicans, Democrats made such frequent use of the filibuster to stall judicial nominations that then-Majority Leader Bill Frist, R-Tenn., sought to reform the filibuster rule to eliminate the supermajority requirement. He dropped his efforts after Democrats agreed not to filibuster judicial nominations—a compromise that Republicans did not reciprocate once President Barack Obama was elected.

If Bondurant’s efforts to end the filibuster are successful, he also will have removed one possible obstacle of his law partner Jill Pryor’s confirmation as a judge on the Eleventh U.S. Circuit Court of Appeals in Atlanta. Obama nominated Pryor to fill a vacancy in February.

The filibuster as it is used today is not like the filibuster enacted by Jimmy Stewart’s character in Mr. Smith Goes to Washington. In that 1939 movie, Stewart, as a U.S. senator, holds forth on the Senate floor for more than 24 hours until, utterly exhausted, he persuades a majority of his colleagues to change their votes to defeat a graft-riddled public project.

Today, according to Common Cause, the filibuster rule coupled with other Senate rules often result in “a silent filibuster” that requires little more than an objection by a single senator.

A senator has only to signal that he or she objects to the motion to proceed that is required to introduce a bill for debate on the Senate floor. The Senate must then garner 60 votes under the filibuster rule in order to introduce the bill for debate.

“If you can’t get 60 votes, the Senate can’t even debate,” Bondurant told the Daily Report last week, and the senator blocking the bill is not even obligated to make his or her objections public or to appear in person on the Senate floor.

On Dec. 5, Reid—despite co-sponsoring the resolution to defend the filibuster rule in the Common Cause suit—told reporters that he, in tandem with some Republicans and other Democrats, intends to change the filibuster rule when the new Congress convenes in January along with other Senate rules that have made calling for a vote on legislation virtually impossible without a supermajority.

At a Capitol Hill news conference the day after the Nov. 6 election, Reid said the filibuster rule had been abused. “I’m not going to do away with the filibuster,” he said, “but … we are going to make it so we can get things done.”

But last week, McConnell and Senator Charles Grassley, R-Iowa, the ranking member of the U.S. Senate Judiciary Committee, took to the Senate floor to oppose efforts to eliminate or abolish the filibuster.

“Majorities are fleeting,” McConnell said. “One can wake up after the first Tuesday in November and find oneself in the minority. I say with respect, I hope my Democratic colleagues are mindful of that as we continue this discussion, and are prepared not only to live under the rules they would change, but to live with the precedent they establish in making those changes.”

No right to unlimited debate

Bondurant told the Daily Report that proponents of the filibuster rule claim that it safeguards the right of the minority to be heard. “All of that is a lie,” he said. “What it does is to give the minority the right to prevent the majority from being heard. It allows the minority to avoid accountability because they never have to vote. They never have to explain themselves. That is why the Senate is dysfunctional.”

“Contrary to common belief,” he added, “when Moses came down from the mountain, the 11th Commandment was not that there was a right of unlimited debate in the Senate or a right of filibuster or a right of the minority to obstruct.” The filibuster, he added, “did not exist when the Constitution was adopted.”

When the country was founded, the Continental Congress operated largely by simple majority votes, and a simple majority had the power to end debate and bring a measure to a vote by employing a parliamentary maneuver known as calling the previous question, the suit states.

Citing The Federalist Papers, the suit says that James Madison argued against a supermajority requirement for the passage of legislation. He wrote that it would mean that “no longer would the majority … rule; the power would be transferred to the minority.”

Alexander Hamilton also wrote in The Federalist Papers that such a requirement would mean that “the majority, in order that something may be done, must conform to the views of the minority; and thus … the smaller number will overrule that of the greater,” according to the complaint.

Hamilton warned that a vociferous minority could use a supermajority voting requirement “to embarrass the administration … destroy the energy of government,” and would substitute “the pleasure, caprice or artifices of an insignificant, turbulent, or corrupt junta… [for] the deliberations and decisions of a respectable majority.”

Said Bondurant: “Madison and Hamilton were absolutely prescient in describing what would happen if you required supermajority voting.” Anyone reading their writings today “would think they were contemporary writers describing the current dysfunction in the United States Senate,” he said.

Birth of the filibuster

The birth of the filibuster, according to the complaint, can be traced to Thomas Jefferson’s vice president, Aaron Burr, who, in his farewell address to the Senate upon leaving office in 1806, called on the Senate to simplify its rules. One rule that Burr said was not needed was the “previous question” rule, which he said was rarely used. The Senate took Burr’s advice and eliminated the rule. The filibuster, according to the Common Cause suit, was the unintended consequence.

Bondurant said the Senate rarely made use of the “previous question” rule because, “They conducted themselves as gentlemen philosophers. Nobody tried to obstruct. They were willing to hear things out. There was mutual agreement that when they had heard enough, they could bring something to a vote.”

Thirty-five years would pass before a small group of senators in 1841 realized there was no longer any Senate rule to limit debate. Because there was no way to stop them, the senators adamantly refused to end a debate that would have allowed for a vote on the government’s lucrative printing contracts, and, according to the suit, the filibuster was born.

Attempts to eliminate the filibuster began that same year, according to the suit. But because any proposed changes to the filibuster rule can be filibustered, more than 100 attempts to change or eliminate it since then have failed, the suit said.

In 1917, after one particularly contentious filibuster earned the ire of President Woodrow Wilson, the Senate crafted a rule intended to provide, for the first time, a way to end a filibuster—but only with a supermajority vote. That rule remains in place today.

Bondurant said the Senate has been incapable of changing the filibuster rule, in part, because many senators “are not willing to declare one of their own rules unconstitutional.”

Senate lawyers, for now, have sidestepped the constitutional questions raised by Common Cause in favor of seeking dismissal of the suit on procedural grounds.

The Senate dismissal motion claims that injuries alleged by Common Cause, the House members and the DREAM plaintiffs “rely on an underlying, unprovable proposition: that a bill that fails to advance because of a filibuster would otherwise—but for the [filibuster] rule—have been enacted into law.”

Common Cause has countered that the plaintiffs do not need to show that bills that never came to a vote would have been enacted but for the filibuster in order to have standing to sue. The plaintiffs who were the intended beneficiaries of the DREAM Act and House legislators who saw House bills die without a vote “were injured when the bills died in the Senate without the Senate majority having had an opportunity to debate or pass them.”

The case is Common Cause v. Biden, No. 1:12-cv-00775.

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