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Infographic showing sharp increase in use of the filibuster to obstruct in the Senate.
While a very public debate is happening in the Senate over rules reform that would make Republican obstruction more difficult for them, a quieter discussion happened Monday in a federal court in Washington. Four House Democrats, Common Cause, and a group of DREAM-eligible young professionals brought the challenge to the Senate's filibuster, claiming it unconstitutionally inconsistent with the principle of majority rule. Monday's hearing centered on Senate lawyers' motion to dismiss the case.
Common Cause lawyer Emmet Bondurant argued that the federal courts, representing a co-equal branch of government, have an established right to review and overturn laws passed by both houses of Congress and signed by the President. “It cannot be that a Senate rule is immune from review when a statute (passed by both houses) signed by the President is subject to review,” Bondurant asserted. [...]

“The Constitution is very specific about when supermajorities are required—to remove judges or high-ranking officials during impeachment trials, to ratify treaties, expel members of Congress, override presidential vetoes and propose constitutional amendments,” said Common Cause President Bob Edgar. “But the filibuster rule essentially imposes a 60-vote supermajority requirement on every piece of legislation coming to the Senate; while the Senate has the power to make its own rules, it cannot impose rules that are incompatible with the Constitution.”

Senate lawyers argued "that to take up the case would be to 'do what no court has ever done—inject the judicial branch into the Senate’s internal deliberations and usurp the Senate’s power to determine its own rules and procedures.'"

The House Democrats bringing the challenge are Reps. Keith Ellison (MN), Hank Johnson (GA), John Lewis (GA) and Mike Michaud (ME). Judge Emmet Sullivan has given no indication when he might rule, but he did ask for written answers from Senate lawyers to his questions about their claim that this suit is a political question, beyond the reach of the courts.

Help make the filibuster a real, talking filibuster. Sign our petition.

Originally posted to Joan McCarter on Mon Dec 10, 2012 at 02:23 PM PST.

Also republished by Daily Kos.

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