May 22, 2012
By Adam Bink
We didn’t get to this in a busy week last week, but Atlanta-area members of the U.S. House of Representative, joined by Common Cause and of late by Rep. Keith Ellison (D-MN), filed a lawsuit last week to challenge the constitutionality of the filibuster in the U.S. Senate. As most of you know, the U.S. Senate functions under a unique rule requiring 60 Senators voting in the affirmative for “cloture” to proceed to debate on a bill or nomination. If cloture is not invoked, it is known as carrying out a filibuster. The lawsuit — Common Cause v. Biden, Vice President — challenges the constitutionality of such a rule, based on how the DREAM Act failed to reach cloture and was filibustered several times in late 2010, failing to reach cloture by as little as four votes. The lawsuit claims that the filibuster provided direct injury to three young Mexicans who were born abroad but grew up in the U.S. and would like to avoid deportation.
Obviously, this case carries very important implications for LGBT rights in Congress. A brief tour of issues concerning LGBT equality for which the Senate’s 60-vote cloture rule had or has implications:
- Repeal of “Don’t Ask, Don’t Tell” failed twice on cloture votes in late 2010. On September 21, 2010, 56 Senators voted in favor of the National Defense Authorization Act which included repeal of “Don’t Ask, Don’t Tell” and it failed because of the filibuster. On December 9, 2010, another vote was held which failed to muster 60 votes in favor of cloture. Only later when a stand-alone bill was introduced, in what amounted to a last-ditch attempt at the very end of the congressional session, was 60 votes reached.
- In mid-2010, with Democrats controlling both houses of Congress and the White House, the Employment Non-Discrimination Act (ENDA) had 45 Senate co-sponsors — usually enough to find an additional 5 or more Senators who would vote to pass the bill, enough if operating under rules requiring a simple majority. But ENDA did not advance in committee or on the floor in part because Senate leadership knew 60 votes were not to be found.
- The filibuster also affects legislative maneuvering and the likelihood of a bill or amendment succeeding if not added in committee. Last year, the Senate Health, Education, Labor and Pensions (HELP) Committee held a markup of legislation to reauthorize the Elementary and Secondary Education Act (ESEA), including reforms of No Child Left Behind. Two important and relevant bills addressing bullying of LGBT in schools — the Safe Schools Improvement Act, with 41 Senate co-sponsors, and the Student Non-Discrimination Act, with 37 — were not added to the package reauthorizing ESEA, or even voted upon as amendments, despite the lead sponsors of both bills sitting on the committee and a the two bills enjoying support from a majority of committee members who co-sponsored or otherwise voiced support for the bills. What that means is that it will take 60 votes to add these two bills to the package on the Senate floor, instead of having them included as part of the overall bill with broad support (the package reauthorizing ESEA passed the HELP Committee on October 20, 2011, by a bipartisan vote of 15-7). While passage of legislation reauthorizing ESEA and reforming No Child Left Behind has since become more unlikely in this Congress, a significant chance was missed to address bullying on a federal level and remains tough because of the 60-vote rule.
- The Respect for Marriage Act, which repeals the Defense of Marriage Act (DOMA), will face the 60-vote threshold sooner or later if DOMA does not fall in the courts first. There are currently 33 co-sponsors.
- There are also any number of judges known to be more likely to support equality for LGBT people who have been blocked by the filibuster. An example would be Goodwin Liu, whose nomination for the U.S. Court of Appeals for the Ninth Circuit failed despite 52 Senators voting in favor. Liu, a former law professor at UC-Berkeley, was one of 17 law professors who urged the California Supreme Court to overturn the state’s ban on same-sex marriage in the landmark In re Marriage Cases. His nomination for the 9th Circuit was later withdrawn and he went on to be nominated and confirmed for a seat on the California Supreme Court.
Opinions on whether the lawsuit is likely to succeed are mixed. Article 5, Section 1 of the U.S. Constitution says the House and Senate have the authority “to determine the rules of its proceedings,” to which the plaintiffs respond by noting that Senate Rule 22 (which governs the filibuster) violates other parts of the U.S. Constitution, something the Supreme Court said was unconstitutional in United States v. Ballin. Other commentators have noted the Supreme Court’s history in refusing to wade into rules of the other branches, observing separation of powers. Our colleague Lyle Denniston of SCOTUSBlog (writing at the National Constitution Center blog) notes that the District Judge before whom the lawsuit will be heard — Emmit Sullivan — has a reputation for bold decision-making, but notes that the case may hinge on whether there is a “live controversy” that allows for standing to sue. He explains:
The Constitution’s Article III allows the federal courts to decide only “cases or controversies,” and the Supreme Court has interpreted that to mean that the only people or groups allowed to sue in federal courts are those able to show that they face a genuine injury, that their harm was caused by the government action they challenge, and that the courts can fix it.
That is what is called “standing to sue.” The courts are generally not open to hear claims by members of Congress who lost battles in the legislative halls, and turn to the courts for relief, so lawmakers who feel frustrated by Senate Rule XXII probably can’t complain on that basis alone. And the courts look with disfavor on lawsuits by individuals who only have a civic grievance that they share with many others in the political community.
But this lawsuit, reflecting attorney Bondurant’s extensive research on the subject, is based on claims of more direct harm to Common Cause and those who joined it in the lawsuit: four Democratic members of the House and three young adults who were born in Mexico but have grown up in the U.S. and would like to become citizens in order to avoid deportation.
Each of those suing claims that the filibuster, and its practical effect of requiring 60 votes to get virtually anything done in the Senate, has had a direct, negative impact on them.
The lawmakers’ strongest claim to injury is that a filibuster barred the passage of a new law to force disclosure of the identities of corporations and wealthy individuals who are spending heavily in federal election campaigns, and as a result the lawmakers and their constituents have no way to track the sources of financial influence on campaigns.
The House members’ separate claim of injury – that bills they had supported in the House died due to Senate filibusters – appears to be weaker.
The three young Mexican nationals claim a very specific injury from a filibuster: that their path to U.S. citizenship has been closed by a Senate filibuster that prevented the passage of what is called the DREAM Act to facilitate early entry into a legal status in the U.S. Those three would have benefited personally if that measure had passed.
The Common Cause claim to injury does not seem as compelling, or as direct: It claims it has had to spend money and energy trying to get new campaign finance disclosure bills through Congress. That, however, is the fate of anyone who wants a bill passed, but doesn’t get it enacted.
There is another potential question hanging over this lawsuit: is there really constitutional status for majority rule? The lawsuit, of course, contends that, when the Framers wanted more than majority rule in Congress, they spelled it out explicitly (a two-thirds vote, for example, to override a presidential veto or to propose a constitutional amendment). And there is language in Supreme Court opinions (and in the Federalist Papers) lauding majority rule, but it may not be so firmly embedded in the structure of the Constitution that it can be enforced by the courts.
Moreover, while the lawsuit argued that there was a clear majority in favor of each of the bills that did not get passed and that would have benefited the members of the House and the three young Mexican nationals, the proof of that – usually, the number of votes cast on a failed motion to move the bills forward – might not be interpreted by the courts as proof of what the tally would actually have been on final passage, had the measures come to such a vote.
Full text of the lawsuit can be found here.