Could a lawsuit put an end to the Senate filibuster?

The organization Common Cause filed suit today against the United States Senate claiming current filibuster rules are unconstitutional. In a statement released today – Common Cause President Bob Edgar said the abuse of the filibuster by minorities on both sides of the aisle – especially Republicans – is, “an affront to our democracy and not the way the Senate was supposed to work.”

Citing a previous Supreme Court decision ruling that the Senate’s rules cannot conflict with the Constitution – Common Cause’s lawsuit alleges that the Constitution ONLY calls for a super-majority requirement in special cases like overriding a Presidential veto or ratifying a treaty – and does not require a super-majority to begin debate, approve judges, or pass routine legislation - as it's used today. Several Members of Congress are plaintiffs in the lawsuit.

For the last few years - led by Mitch McConnell – who boasted that his number one goal is NOT to create jobs for Americans but instead to put President Obama out of a job – a Republican minority has shut down an entire branch of government by abusing the filibuster. This is not what democracy what looks like.


edayres's picture
edayres 11 years 3 weeks ago

I've often thought the filibuster to be unconstitutional, and have been anxiously waiting for some group to legally challenge it. There is certainly nothing explicity mentioned in the Constutution about it so one one would think it would require an amendment to change. It's difficult to know whether the Supreme Court would see it as a violation of Separation of powers to even rule on it.

beerad007 11 years 3 weeks ago

On one hand I am certainly glad that someone is trying to do something, but do I think they will win, I would say no. It's a GOP controlled Supreme Court and there is just not enough people that actually c are about what is going on around them. I am becoming more and more convinced that there will have to be a Great Depression type event to start the cycle all over again. We just don't seem to learn in our society.

PhilipHenderson's picture
PhilipHenderson 11 years 3 weeks ago

I am pleased to learn that Common Cause is taking this issue head on. I wonder if the Supreme Court members have enough understanding of the Constitution to see that the Senate has no right to tie its hands. The Senate was supposed to make decisions on majority rule unless they were ratifiying international agreements. This filibuster rule is crazy.

R.A. Stewart's picture
R.A. Stewart 11 years 3 weeks ago

I am not finding an explicit declaration in Article I that ordinary votes should be decided by simple majority, though perhaps it can be understood by implication as applying to votes for which a two-thirds majority is not specified. So I don't know how strong a case Common Cause and their co-plaintiffs will have, especially (as beerad007 points out) before this partisan Supreme Court.

The current rules will be changed, though. When the Republicans retake the Senate, their first order of business will be to make routine votes determinable by a simple majority and to strip the Democratic minority of all rights and powers possible, including that of filibuster.

Gregory Wonderwheel's picture
Gregory Wonderwheel 11 years 3 weeks ago

This lawsuit looks like a really elegant argument that actually may have legs. At least it would have legs if we had a SCOTUS that actually cared about the Constitution.

The first hurdle will be whether they can establish standing as citizen's to challenge the rules of the Senate.

Then, for folks who don't know, there are general and specific rules of statutory construction and interpretation of legislation, from constitutions of nations to bylaws of corporations, that have a long tradition in our law. For example, one rule of construction provides that a phrase may not be construed to have an effect that would render another provision meaningless because the legislation can not be thought to have been written in a manner that would nullify itself. In other words, where two interpretations are possible, the one that would give effect to two provisions must be adopted over one that would deny effect to one of the two provisions.

Some of the important rules of construction are:

1. 'The fundamental rule of statutory construction is that the court should ascertain the intent of the Legislature so as to effectuate the purpose of the law.

2. Every statute should be construed with reference to the whole system of law of which it is a part so that all may be harmonized and have effect.

4. If possible, significance should be given to every word, phrase, sentence and part of an act in pursuance of the legislative purpose.

5. Such purpose will not be sacrificed to a literal construction of any part of the act.

6. For purposes of statutory construction, the various pertinent sections of all the codes must be read together and harmonized if possible.

7. When the seeming inconsistencies appear in separate codes, the rule declares that the codes blend into each other and constitute a single statute for purposes of statutory construction.

It makes perfect legal sense that the Senate's rules can not conflict with the Constitution because the Constitution is the supreme law of the land, but the case will be decided on the question of how the Constitution is to be interpreted or construed. Of course the phony “strict constructionists” on the Supreme Court will claim that the Senate must be allowed to have the filibuster rule because they have had it so long and the founding fathers certainly never said a filibuster rule was wrong.

However the rule that must be applied is the familiar rule of construction, expressio unius est exclusio alterius, that is, where exceptions to a general rule are specified by statute, other exceptions are not to be implied or presumed. Thus, where the Constitution has established the general rule that bills are to be adopted by majority vote, and where the Constitution has specified exceptions to this rule, other exceptions to the general rule are not to be implied or presumed.

The question for the Courts will be whether the Senate’s rule of filibuster creates an unacceptable implied or presumed exception to the general rule of majority vote. It looks to me like it does, so it will take legal pretzels to get around it. But since we have seen such legal pretzels in Bush v. Gore and Citizens United, we know that SCOTUS is very capable of cooking up the pretzels.

Gregory Wonderwheel's picture
Gregory Wonderwheel 11 years 3 weeks ago

Good point. Without a specifically stated general rule, the conservatives on the SCOTUS will most likely say there is no application of the rule requiring exceptions also to be specific. However, there is a general rule of parliamentary law in the common law that states "unless otherwise stated, all votes are by majority." So in fact, this is the context for why the Constitution doesn't specifically state the general rule because all the people in the Constitutional Convention knew this general rule of parliamentary law and didn't see any need to add it into the Constitution.

Gregory Wonderwheel's picture
Gregory Wonderwheel 11 years 3 weeks ago

Here's a great bit of info on the filibuster pointing out it was never intended and instead was an unintended consequence.

In 1806, the Senate, on the advice of Aaron Burr, tried to clean up its rule book, which was thought to be needlessly complicated and redundant. One change it made was to delete something called “the previous question” motion. That was the motion senators used to end debate on whatever they were talking about and move to the next topic. Burr recommended axing it because it was hardly ever used. Senators were gentlemen. They knew when to stop talking.

That was the moment the Senate created the filibuster. But nobody knew it at the time. It would be three more decades before the first filibuster was mounted — which meant it was five decades after the ratification of the Constitution. “Far from being a matter of high principle, the filibuster appears to be nothing more than an unforeseen and unintended consequence of the elimination of the previous question motion from the rules of the Senate,” Bondurant writes.


This is a strong argument that can be used to protect and reestablish the majority voting rule.

brown3740's picture
brown3740 11 years 3 weeks ago

It's time that the Dems just starting using the Nuclear Option, whenever needed.

What's the downside?

described at:

mathboy's picture
mathboy 11 years 3 weeks ago

Pfft. No. The Senate is allowed to make its own rules. The only thing that implies that votes in the Senate should be decided by majority is the provision that the President of the Senate has a vote only if "they be equally divided." However, since there are cases that require different ratios for passage (overriding a veto, approving a Constitutional amendment, expelling a member, and removing the President from office are all 2/3, and recording yeas and nays in the journal is 1/5) this can't be used to argue that all other votes must be by majority, only that there must be some votes decided by majority, and those would be actual passage of bills (i.e. things that also need to go through the House).

The filibuster rule is not about the passage of a bill. It is about ending debate, which is an internal procedure, and therefore entirely up to the Senate rules. Some processes other than passage of a bill might not even make sense if a majority were required. They could involve senators having multiple votes, or collectively choosing more than one option (say, the top three candidates to be on a commission are the winners). And requiring that everything the Senate does be decided by a majority of the senators (unless otherwise specified in the Constitution, of course) would certainly make committee work very difficult.

If the Supreme Court even took on the case, it would be exactly the kind of meddling across branches that Thomas Jefferson complained about in his letter to Spencer Roane.

Joseph L. 11 years 3 weeks ago

Hey Thom. I just watched the re-run of the Big Picture tonight, and some of your talk show today, and I've gotta say that I'm becoming a little concerned about a tendency I'm seein' from you that mirrors a lot of what I see on MSNBC. We both know that the Re-gressives have lost their minds, but when I started listening to you a few months ago, I was floored by your knowledge and wisdom. Now, I'm seeing you not only as a shill for Obama, (who is nothing but another puppet for the jew banksters), but also as someone who seems to tow the line that is the Al Qaeda/OBL lie. 9/11 was the beginning of the end, and was perpetrated by the Zionist Jews, (who aren't even Jews). What gives man?

2950-10K's picture
2950-10K 11 years 3 weeks ago

"Abuse of the filibuster by minorities on both sides"????? I strongly surmise that Democratic party usage of the filibuster would be a reaction supportive of rule by the ruled, which in my world is not abuse, as opposed to the true minority party, "the republicans," who filibuster in support of rule by the rich only! I do support the suit however.

MontanaMuleGal's picture
MontanaMuleGal 11 years 3 weeks ago

Threats are not action.

Legislation is stopped by the THREAT of a filibuster. No one is actually forced to filibuster. I think senators should have to filibuster and stay on their feet on the floor.

And, in a similar way, there were hundreds of bills during the Bush years (and, no doubt, now, too), that were not voted on because Bush THREATENED to veto them. Why not pass the legislation and then have the president ACTUALLY veto them?

Why not carry through with the actions of law-making? When I called my senator's office, frequently in those days, I was told: "There are not enough votes to pass." Well... why not VOTE on the bill anyway? Why say, "It's futile to vote" because of being short three votes to get a super-majority that the president can't veto. VOTE on the bills! Go for the VETO! Force the mouthy fili-busterers into backing up their words with ACTION!

brushryder 11 years 3 weeks ago

The Senate can make its own rules every ywo years. If Harry Reid is against changing, perhaps we need a new majority leader.

chuckle8's picture
chuckle8 11 years 3 weeks ago

One downside is that Harriet Myers would be on SCOTUS and Bork.

rocketman1701's picture
rocketman1701 11 years 3 weeks ago

I respectfully disagree that the Republicans will change the rules. Here is why. There are too many people who will be too afraid that they will be back in the minority again. With the current game plan, both sides have more to gain in having a minority veto than majority rule.

Blackpandas's picture
Blackpandas 11 years 2 weeks ago

Did you think it was unconstitutional when Democrats controlled the house? Show me where and when you first piped-in on its unconstitutionality?

Blackpandas's picture
Blackpandas 11 years 2 weeks ago

This country first needs to put a competent congress into office and then discussions need to get underway about holding a Constitutional Congress. The country is disillusioned and no one hardly understands the constitution any more. It may be the biggest debate since the Civil War but our great divide has many believing that secession from the "Grand Ole Union" may be the only answer to preserve the document. And I'm one of them.

douglaslee's picture
douglaslee 11 years 2 weeks ago

The seccesionists still have a constitution, the confederate one. The eight most populous states have 50% of the population, the eight least populous have 3% of the population. TX could be the leader of the new confederacy, they even have a constitution as a sovereign republic with no federalist ties. They could arm all the citizens, including toddlers. They could franchise their prisons. 'Executions are US' with a marketing slogan " 'Gauranteed Snuff in under 3 Years, or it's Free' that's right 'In 3 or Free!' ask about our friends and family plan."

CA has more people than the bottom 21 states, 21 that can filibuster. 42 votes to 2, or 21 times the influence. All men created equal is just as nonsensical as fair and balanced.

William Carr's picture
William Carr 11 years 2 weeks ago

It's not that people don't understand the Constitution. It's that the Libertarians are trying to re-interpret the Constitution as a "Mother, May I" document.

The Constitution says what the Government may NOT do. And leaves latitude to create new laws, because the Founders knew there would be circumstances they couldn't foresee or plan for.

The Libertarians and anti-government lunatics HATE the idea of a "Living Constitution" so they pretend the Constitution says things it doesn't.

And enough people are easily fooled that this argument confuses them.

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