Court case challenges the filibuster

Forget Grover Norquist’s minimalist dream of shrinking government until he can “drown it in the bathtub.” Today’s modus operandi for anti-government crusaders is gridlock and minority rule.

Its consequences are cruel. Consider this week’s Senate filibuster of a three-month extension of unemployment benefits, which despite the support of a majority of Americans failed to advance. It got 55 votes, a clear majority, but thanks to the filibuster rule a 45-senator minority blocked it.

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Try explaining that to a laid-off worker struggling to survive another week in the bleak mid-winter, or to a high schooler whose textbooks explain how our government operates on the principle of majority rule. Americans are turned off by the procedural games that make our government appear dysfunctional - which is exactly the point for the faction of senators now calling the shots.

This is unacceptable. And next week, three federal judges have a rare chance to start fixing it.

Although the Senate moved to end the 60-vote threshold on nominations last November, the filibuster’s anti-democratic rule remains in place for Supreme Court nominees and for every bill or resolution that comes to the Senate floor.

A lawsuit brought by Common Cause, four members of the House of Representatives and three immigrants seeking American citizenship seeks to declare the 60-vote filibuster rule unconstitutional.  Whether any party has standing to bring this claim will be argued on Tuesday in the D.C. Circuit Court of Appeals.

The filibuster’s 60-vote provision is an accident of history that violates the bedrock principle of majority rule upon which our democracy was founded. Our system of government – with its carefully calibrated checks and balances - guards against knee-jerk majoritarianism that runs roughshod over the rights of the minority. For example, the House is apportioned by population where every person is equally represented, while each state enjoys equal voting power in the Senate. At the same time, the Constitution requires a supermajority to impeach a president, override a veto, amend the Constitution or ratify a treaty.

There’s nothing in the Constitution about a supermajority requirement to pass legislation.  The founders considered and rejected such a mandate because it could be used “to embarrass the administration, to destroy the energy of government” and subject decisions of Congress to “the caprice, or artifices of an insignificant, turbulent, or corrupt junta,” Alexander Hamilton wrote.  Who needs government shutdowns to “destroy the energy of government” when blocking the Senate from legislating will do?

The founders notwithstanding, the filibuster rule’s defenders today rely on a constitutional provision granting each house of Congress exclusive authority to write its own rules. They say it leaves the courts powerless to hear challenges to the constitutionality of those rules.  But if a court can rule on whether a law like the Affordable Care Act exceeds congressional power, surely it can also decide if a chamber’s procedural rule exceeds that power.

In fact, the Supreme Court long ago held in United States v. Ballin that Congress “may not by its rules ignore constitutional restraints” on its operation. And earlier this month, justices heard another case touching on a symptom of Senate gridlock, NLRB v. Noel Canning. In that case, the justices examined the scope of the President’s authority to install through recess appointments nominees blocked from confirmation by the historic backlog of Senate filibusters.

It is the courts’ duty to rule on such questions of law, including the scope of the Senate’s power to distort the legislative process by cloaking supermajority requirements in the language of mere Senate rules.

We can no longer tolerate obstruction for obstruction’s sake as a governing strategy. The unconstitutional filibuster rule undermines our representative democracy because it nullifies the outcome of elections. The 60-vote rule is no longer the exception to the rule, but the rule itself. It’s time for the rule to go.

Spaulding is staff counsel at Common Cause.