Common Cause, a Washington-based watchdog group, is suing the U.S. Senate over the constitutionality of its filibuster rule that enables a 41-member minority to block the debate of bills.
The 52-page complaint asks the U.S. District Court to declare the Senate’s filibuster rule unconstitutional because it violates the principle of majority rule. Bob Edgar, the group’s president and CEO, said the American public has lost confidence in Congress’s ability to get anything done.
“They have good reason,” he said in a press release. “Congress is mired in gridlock as partisan factions put political advantage over the national interest. Requiring 60 votes to do anything in the Senate is a big part of the problem. It creates a disincentive to compromise, and allows powerful special interests to call the shots behind closed doors.
To debate a bill, the Senate must pass a motion to proceed with the bill. However, senators opposed to the measure can debate that motion endlessly if proponents can’t get the 60 votes necessary to move forward with the bill.
The Common Cause lawsuit alleges the rule gives a dissident minority in the Senate veto power over all three branches of the federal government. Filibusters prevent the Executive Branch from filling positions by not passing nominations, which leaves the Judicial Branch with critical vacancies. Meanwhile, the House of Representatives can’t pass a bill into law unless the Senate does so as well.
The filibuster was designed to allow a bill to be debated extensively. Edgar said the framers of the constitution did not intend for it to be used to prevent a debate entirely. In a blog post on Common Cause’s website, Edgar said the filibuster was even used to prevent a discussion of the filibuster.
“When the 111th Congress opened last year, the filibuster rule even denied my friend Sen. Tom Udall [D-NM] a chance to make the case for filibuster reform to his colleagues; the minority used the filibuster rule to block discussion on Udall’s proposal to change the rule,” he wrote.
However, courts are traditionally hesitant to weigh in on the inner workings of other branches of government.
U.S. Sen. Richard Blumenthal, Connecticut’s former attorney general, said the constitution often prevents lawsuits such as this.
“[The lawsuit] faces some significant obstacles, not the least of which is whether the court can order any remedy. The Judicial Branch is barred by the Separation of Powers Doctrine from controlling the operations of another branch of government,” he said in a phone interview.
“Just as a matter of law, there are high hurdles to achieving an end to filibustering through the courts,” he said adding that litigation takes years.
However, Blumenthal said the rule is a problem that needs addressing by the Senate itself. He said one of the first votes he cast after taking office was to eliminate the 60-vote threshold and to end or dilute filibustering.
“I’m in favor of majority rule,” he said.
Though the vote failed, Blumenthal said he’s been involved in discussions about changing the rules. Senate Majority Leader Harry Reid recently expressed frustration with filibuster abuse and there’s been significant movement in a renewed effort to scrap the rule, Blumenthal said.
U.S. Rep. Chris Murphy, who is running for Senate and was in Hartford for an unrelated press conference this week, agreed the Senate should fix its own rules instead of waiting for legal intervention.
“You need a majority of senators at the beginning of a session to change the rules. I think if you elect a number of senators who are committed to process reform, we can get rid of the filibuster by a simple vote in the Senate rather than by a lawsuit,” he said.
Murphy said he doesn’t want to do away with the filibuster in its traditional sense, as in debating a bill extensively.
“I’d like to see people actually have to filibuster,” he said, adding that currently senators only need to threaten a filibuster to throw up a 60-vote barrier.
If senators actually had to engage in long and drawn out debates, they might be less inclined to obstruct the passage of legislation, he said.
“If you’re going to filibuster then do it. Bring cots to the Senate floor, stay there for weeks on end. Don’t just threaten a filibuster,” Murphy said.