Common Cause's Filibuster Challenge: Dead on Arrival
Earlier this week, Common Cause filed a lawsuit that seeks to declare unconstitutional Rule XXII of the Senate (the filibuster rule), which requires an affirmative vote by 60 members of the Senate to bring a close to debate. The Rule has this oddity: it takes more votes to close a debate than it does to pass the measure.
It is easy to think of a thousand reasons why that supermajority requirement is a good idea—or a bad one. At certain times we all think that some legislation should proceed more rapidly, while at other times we would all like to stop legislation in its tracks. It is not possible to mold the filibuster rule to the peculiarities of each individual case, so that all concerned are required to take the bitter with the sweet once the rule is in effect.
In principle, we should all be ambivalent about the rule. In my view, the ideal Senate rule would look like this: it would take a simple majority to close debate on a measure to repeal existing legislation, but a 60 percent (or more) rule to pass new legislation. But there is not a shred of evidence in support of this approach in either past practice or constitutional text.
Indeed, there are two simple features of the Constitution that in all likelihood doom this lawsuit to defeat, both of which are noted in the complaint. The first is that there are six specific provisions (dealing with impeachment, expulsion, veto overrides, treaties and amendments) that require some supermajority vote to carry the day. The second is that the Senate has -- under Article I, § 5, cl. 2, -- the power to “determine the rules of its proceedings.”
From the first, it seems clear that there is no indisputable constitutional preference for majority rule. From the second, it is clear that the Senate and not the courts should determine its internal operation.
Common Cause huffs and puffs to escape the obvious. But it seems likely that this case is doomed from the start.