During a federal district court hearing in Washington December 10, attorneys debated the constitutionality of a long-standing U.S. Senate rule taken for granted by many in D.C.: the filibuster. 

Common Cause filed suit in May, claiming that the filibuster is unconstitutional in part because it allows for minority rule. The plaintiffs include undocumented people living in the United States who were allegedly denied the path to citizenship by the Senate’s filibuster of the DREAM Act.

Arguing against a motion to dismiss, the plaintiff’s lead attorney, Emmet Bondurant, said the filibuster rule nullifies the votes of the House of Representatives and thus violates the will of the majority. The suit is opposed by the Senate, which had its attorneys file a motion to dismiss in July.

Judge Emmet Sullivan of the U.S. District Court for the District of Columbia, who presided over the two-hour hearing, asked Bondurant what the plaintiff would gain if the filibuster rule were voided. “That doesn’t get you a vote in the Senate,” Sullivan said. “What does that get you?”

Bondurant, a partner in the Atlanta-based law firm Bondurant Mixson & Elmore said that it allows for “the procedural opportunity to have legislation come to a vote.”

Sullivan also raised the issue of how the court could hope to redress the alleged wrong. “This legislation has died and it’s pure speculation that this legislation would ever be passed again,” he said.

Bondurant argued that the rule obstructs the will of the majority by allowing a single senator to stymie the legislative process. “The majority was not allowed to even debate on it,” he said. “The majority is hamstrung by its own rules.”

Bondurant, a member of Common Cause’s board, had been contemplating a challenge to the filibuster for more than two years, according to a recent profile by the Daily Report, the Atlanta-based affiliate of the National Law Journal

Thomas Caballero, an attorney with the Office of Senate Legal Counsel, argued the case should be dismissed for several reasons: because the plaintiff lacks standing to bring the suit; the speech and debate clause bars the suit; and because the court lacks the power to amend Senate rules.

“That’s not vote nullification if the Senate fails to make a vote,” Caballero argued. “The Senate accepted the bill. That wouldn’t change the fact that there had been no final vote. Just because more than 50 people voted for the cloture doesn’t mean we can assume the vote will pass. All we have is the natural outcome of a bicameral process.”

Caballero continued: “The Senate has complete authority to make their rules. The court can’t take the legislative process into the judicial branch.”

Sullivan has given both sides until the end of December 12 to file a memorandum of three-pages maximum to support its position.

Contact Matthew Huisman at mhuisman@alm.com.