Common Cause Fires Back In Filibuster Suit

Written by Jack Mumby

The 112th Congress has been the least popular and least productive in history- to date only 154 have passed a yea-or-nay vote on the floor, and Americans have rewarded them with an approval rating barely in the double digits.

These two facts have a cause in common- Senators are allowed to deliberate over bills as long as they like, and they have begun to abuse that privilege in order to unilaterally prevent any action, or even debate, on important bills and appointments. This filibuster power has done immeasurable damage to Congress’ ability to serve the American people.


Common Cause sued the Senate to put an end to this practice, and the Senate responded with a motion to dismiss the suit. The Senate’s argument to keep the filibuster relies on three claims:

1)      Filibusters, as outlined by Rule XXII of the Senate, are Constitutional

2)      The plaintiffs have no standing to sue

3)      Federal courts have no right to change the Senate’s rules

Earlier this week, Common Cause issued a 70-page rebuttal of the Senate’s arguments, which is available here. Drawing upon the Constitution as well as judicial and legal precedent, it systematically refutes each of these spurious claims.


1)      Filibusters, as outlined by Rule XXII of the Senate, are Constitutional

The main “ask” of Common Cause’s lawsuit is a revision of Senate Rule XXII, removing the portions mandating that three-fifths of the Senate must vote to end debate (cloture) before a bill can be voted on. Historically, this vote was a mere formality, and cloture was granted after everyone had spoken their piece as a matter of course.

Unfortunately, a rule originally intended to promote majority rule is now being exploited by parties in the minority as a roadblock to consensus. Unscrupulous legislators can vote along party lines to “continue debate” on a bill that would be sure to pass a fair up or down vote.

Senators can do this even if they have no intention of even discussing the bill, and the Senate will move on to other issues. For all intents and purposes, if a bill can’t get a supermajority of 60 supporters, it will die on the floor without even being voted on.

The Senate argues that the filibuster, and their present abuse of it, is perfectly within their Constitutional right to determine their own rules and procedures. In doing so, they are attempting a constitutional defense of an indefensible and unconstitutional state of affairs.

When this sort of legislative obstruction becomes the norm in one chamber, there are effectively two different sets of rules for the House, which requires a simple majority and Senate, where whether to continue “debate” ends up being more hotly contested than the bills themselves.

This is clearly unconstitutional- the Supreme Court held in 1983 that laws should be made by a “single, finely wrought and exhaustively considered procedure” that relies upon “the prescribed majority [vote] of the Members of both Houses of Congress.” Letting bills that more Senators support than not die on the floor is a clear violation of these majoritarian principles.


2)      The plaintiffs have no standing to sue

Central to the Senate’s motion for dismissal is that the plaintiffs, a coalition of concerned legislators, organizations, and Americans, do not have sufficient legal standing to bring suit. In order to challenge a law’s constitutionality, plaintiffs have to demonstrate that the law poses them harm- the Senate believes it hasn’t.

This, of course, is flatly untrue. The House members who have brought suit, as well as the people who elected them, have had their votes effectively nullified by a dysfunctional system.

Furthermore, Common Cause and other good government groups saw their efforts for greater transparency go to waste when the DISCLOSE Act got “only” 51 votes- enough to pass, but not enough to break the filibuster. Undocumented Americans who struggle daily with obstacles that would have been removed by another filibuster casualty, the DREAM Act, have been even more grievously injured.

Frankly, it is difficult not to be offended by the claim that any American who is subject to our nation’s laws hasn’t been harmed by the total dysfunction that plagues our Congress. After all, the legislative process isn’t meant to serve legislators, it’s meant to serve us.

However, even if DISCLOSE and DREAM couldn’t have passed a simple majority vote, the abuse of the filibuster to prevent that vote is still doing us harm. Every American deserves an opportunity for their interests to be heard in a fair and majoritarian process. When the minority holds debate hostage, they deny us our Constitutional right to a fair political procedure.


3) Federal courts have no right to change the Senate’s rules

Even if the filibuster is unconstitutional, according to the Senate, any redress of that would violate the separation of powers our system is built upon. However, legal precedent clearly establishes that inaction by the judiciary here would be an abdication of their Constitutional duties.

Although we have some say in who represents us, we the voters have no real check on how our legislators conduct themselves once in office until the next election. Similarly, individual Senators have a lot to lose career-wise if they try to take on the party leadership and change the Senate’s rules.

In other words, filibuster abuse is a difficult problem for a representative democracy to solve on its own. However, existing case law anticipates this sort of problem, and provides a specific way to fix it.

While the Senate is free to write its own rules, those rules may not “ignore constitutional restraints or violate fundamental rights.” Filibuster abuse does both, which means the judiciary has not just a right, but a responsibility to remove the specific portions of the Senate’s rules that enable it- it’s the only entity with the Constitutional ability to do so.


There’s still some time before a final decision on the case is reached- oral argument will take place in the fall, and the Senate must respond to Common Cause’s brief before September 18th. Hopefully a decision will come sooner than later- our country is facing many challenges, and we can’t afford another 4 years of gridlock.

Click here to read the full brief, Exhibit A in support of our brief, or learn more about the suit!


Jack Mumby is a 2012 graduate of St. Mary’s College of Maryland, where he campaigned for wage justice and other progressive causes and earned a bachelor’s degree in Political Science and Public Policy. He is currently working as an intern with Common Cause’s national office.

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3 Responses to “Common Cause Fires Back In Filibuster Suit”

  1. The Senate abuse of it’s filibuster rule does indeed gridlock Congressional action and consequently damage the ability of Congress to represent the interests of the people. Ending this abuse is an important step towards improving the democratic processes employed by our republic.

    Do we want Congress to only act during the lame duck session of the two year election cycle? I don’t. Let’s see transparency, real debate, and votes brought to the floor for a vote so we voters can have more power to decide our collective fate when we vote.

    The current system empowers the unelected people who direct the national committees of the two major parties and those who fund them. This does not lead to a Congress representative of the ordinary citizen.

  2. The Senate abuse of it’s filibuster rule does indeed gridlock Congressional action and consequently damage the ability of Congress to represent the interests of the people. Ending this abuse is an important step towards improving the democratic processes employed by our republic.

    Do we want Congress to only act during the lame duck session of the two year election cycle? I don’t. Let’s see transparency, real debate, and votes brought to the floor for a vote so we voters can have more power to decide our collective fate when we vote.

    The current system empowers the unelected people who direct the national committees of the two major parties and those who fund them. This does not lead to a Congress representative of the ordinary citizen.

  3. The Senate abuse of it’s filibuster rule does indeed gridlock Congressional action and consequently damage the ability of Congress to represent the interests of the people. Ending this abuse is an important step towards improving the democratic processes employed by our republic.

    Do we want Congress to only act during the lame duck session of the two year election cycle? I don’t. Let’s see transparency, real debate, and votes brought to the floor for a vote so we voters can have more power to decide our collective fate when we vote.

    The current system empowers the unelected people who direct the national committees of the two major parties and those who fund them. This does not lead to a Congress representative of the ordinary citizen.