DC Court: Common Cause 'hoist with [its] own petar' in filibuster case

The D.C. Circuit Court of Appeals rejected Common Cause’s case, which argued that the Senate filibuster was unconstitutional.

Common Cause — a liberal non-profit — blamed the 60-vote threshold needed to overcome a filibuster for lack of progress on House passed bills, the DISCLOSE Act and the DREAM Act. The organization argued that Senate votes should be held to a simple majority, as it is in the House or Representatives.

ADVERTISEMENT
D.C.’s lower court had already dismissed Common Cause v. Joseph Biden in 2012, saying Common Cause lacked standing to sue.

On Tuesday, a three-judge panel on the D.C. Circuit Court of Appeals also dismissed the case but for different reasons.

“We agree with the district court that Common Cause lacks standing, but for a different reason,” the senior Circuit Court judge Arthur Randolph wrote in the opinion. “Our analysis focuses on whom Common Cause chose to sue — or, more to the point, not to sue.”

Under current Senate rules, the minority party can force a cloture vote before a final passage vote — ending debate on a bill requires 60 votes. Common Cause argued that forcing lawmakers to get 60 votes to advance legislation violated the Constitutional principle of majority rule. But the court ruled that because the Senate determines its own rules, Common Cause sued the wrong person — Vice President Joe Biden, who acts as the president of the Senate.

“In suing only non-Senators, Common Cause is ‘Hoist with [its] own petar,’” Randolph wrote, citing William Shakespeare’s “Hamlet.”

The Senate is able to vote to change its rules at the beginning of each new Congress. Even last year, the Senate voted to change filibuster rules on most presidential nominations. Only a simple majority is now needed to advance nominees instead of the previously needed 60-votes.

“Here, Common Cause does not identify anything the defendants did (or refrained from doing) to cause its alleged injuries,” Randolph wrote. “The Senate established the cloture rule and the Senators voting against cloture doomed the DREAM and DISCLOSE bills. It is hard to imagine how any of the defendants bore responsibility for that outcome.”

During the 111th Congress, the Senate failed to overcome Republican filibusters on both the DREAM Act and the DISCLOSE Act — Democratic priorities that passed in the House when it was controlled by Democrats. Common Cause, which advocates for more transparent election funding and other liberal principles, was disappointed that neither bill got a final vote in the Senate, sparking the lawsuit. 

But the court ruled that because Biden has nothing to do with cloture votes, only final passage of bills in case of a tie, he couldn’t be held responsible for the outcome.

After the lower court ruling was upheld Tuesday, Common Cause issued a statement saying it was disappointed in the decision and its lawyers are reviewing the decision before deciding whether to appeal the ruling again or file another suit.

"Obviously, we’re disappointed by today’s DC Circuit decision. Our attorneys are reviewing the court’s opinion before deciding on a future course of action," Common Cause said in a press release Tuesday. “It’s important to note that the court’s decision was strictly procedural; the judges did not rule on the merits of our claim that the filibuster rule and its 60 vote requirement for Senate action is unconstitutional."