Constitution Check: Will the Courts Strike Down the Senate Filibuster?

Does a case for banning the use of the filibuster in the Senate stand a chance of success with the Supreme Court? I look at a recent news story that claims the case looks strong, but with significant obstacles.

The statement at issue:

Emmet Bondurant [an Atlanta lawyer] thinks the filibuster is unconstitutional. And, alongside Common Cause, where he serves on the board of directors, he's suing to have the Supreme Court abolish it... Bondurant makes a strong case. Will the Supreme Court buy it? I have no idea.

- Ezra Klein, column in the Washington Post on May 14, "Is the filibuster unconstitutional?," commenting on a lawsuit filed that day in federal court in Washington by Mr. Bondurant's law firm and the Common Cause legal staff. The column includes a link to a research study Mr. Bondurant wrote on the subject in 2001 for the Harvard Law School Journal on Legislation, found here.

We checked the Constitution, and...

Under Article I, Section 5, the Senate and the House is each given the authority "to determine the rules of its proceedings." But the new lawsuit, Common Cause v. Biden, Vice President, filed in Washington this week proceeds on the theory that this provision is only the beginning of the constitutional conversation, not the end of it. As long ago as 1892, the lawsuit notes, the Supreme Court in the case of United States v. Ballin declared that the Senate lacks the authority to write rules that conflict with other parts of the Constitution.

As this lawsuit proceeds before District Judge Emmet G. Sullivan, a judge who has a reputation for bold decision-making, it has real promise. But it will have to overcome some potential obstacles perhaps more daunting than what Article I says about congressional rules.

The most significant of those is whether, in fact, this challenge is a "live controversy" -- that is, whether it is a genuine legal dispute, not simply an abstract exploration of an idea about the right way to run a government. 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.

The lawsuit, though, has yet to play out, so its chances cannot be gauged definitely at this stage. It at least serves, though, to highlight the increase in filibustering at a time when legislative gridlock is widely recognized as a problem.

Previous Analysis From Lyle Denniston

Lyle Denniston is the National Constitution Center's Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court's work.