Suit Claims the Senate Filibuster Violates Unstated Constitutional Principle of Majority Rule
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A suit filed on Monday by Common Cause claims the Senate filibuster is anti-democratic and unconstitutional.
“The principle of majority rule was so basic to the concept of a democratically elected legislative body that it did not need to be expressly stated in the Constitution,” the suit (PDF) says. Other plaintiffs include several Democratic lawmakers and three immigrants who would be aided by passage of the Dream Act, according to Politico, the Atlanta Journal-Constitution and a press release.
The Senate filibuster rule requires 60 votes on motions to proceed with or close debate on bills or presidential nominations. Another Senate rule requires a two-thirds vote to change the rules. Both are inconsistent with the concept of majority rule and unconstitutional, the suit says.
Emmet Bondurant represents Common Cause in the lawsuit, the Washington Post’s Wonkblog reports. He made out his case in a 2011 law review article. “At the core of Bondurant’s argument is a very simple claim,” WonkBlog says. “This isn’t what the founders intended. The historical record is clear on that fact. The framers debated requiring a supermajority in Congress to pass anything. But they rejected that idea.”
Instead, the Constitution sets out only six exceptions requiring a supermajority vote, including for veto overrides and constitutional amendments, Bondurant says.
Wonkblog calls Bondurant’s argument “a strong case” but George Washington University political science professor Sarah Binder isn’t so sure. She told the Journal-Constitution that courts will likely be skeptical because the Constitution gives the Senate the power to make its own rules. Other obstacles, according to the Volokh Conspiracy, are standing issues and the political question doctrine.
