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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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Comment Preferences

  •  I can't help thinking that the SCOTUS (20+ / 0-)

    would not touch this whilever they have a hole in their ass.

    What I would like to see is action against those who signed the Norquist Pledge, on the grounds that it is in direct contradiction to their Oaths of Office.

    I hope that the quality of debate will improve,
    but I fear we will remain Democrats.

    by twigg on Mon Dec 10, 2012 at 02:35:38 PM PST

    •  It's clearly a political question. (33+ / 0-)

      And I suspect the representatives bringing the suit know that, and are bringing it to call attention to the problem, rather than seriously making the case they're making.  They're trying to bring the suit under 28 U.S.C.§1331, which is a good sign it isn't serious.

      Joan, here's the filing if anyone's interested in reading it.

      Saint, n. A dead sinner revised and edited. - Ambrose Bierce

      by pico on Mon Dec 10, 2012 at 02:41:55 PM PST

      [ Parent ]

      •  Thanks Pico (5+ / 0-)
        Recommended by:
        pico, elwior, Onomastic, thomask, Larsstephens

        That makes sense.

        I hope that the quality of debate will improve,
        but I fear we will remain Democrats.

        by twigg on Mon Dec 10, 2012 at 03:24:04 PM PST

        [ Parent ]

      •  Thanks (8+ / 0-)

        and I think yo're right.

        "There’s class warfare, all right, but it’s my class, the rich class, that’s making war, and we’re winning." —Warren Buffett

        by Joan McCarter on Mon Dec 10, 2012 at 03:30:11 PM PST

        [ Parent ]

      •  I am curious about that (2+ / 0-)
        Recommended by:
        bear83, BlueStateRedhead

        It seems that it is t necessarily a political question, although it is t a doctrine I am an expert in. (So I'm seeking a little edumacshun). The Senate's authority to set rules must be bounded by other constitutional provisions.  They couldn't, for example strip votes from black senators, so there must be some governing principle where that authority ends.  It does seem that here there are some discernible principles of law and constitutional construction to be applied which would make it justifiable, wouldn't it?

        Hay hombres que luchan un dia, y son buenos Hay otros que luchan un año, y son mejores Hay quienes luchan muchos años, y son muy buenos. Pero hay los que luchan toda la vida. Esos son los imprescendibles.

        by Mindful Nature on Mon Dec 10, 2012 at 07:29:15 PM PST

        [ Parent ]

        •  No doubt, but what governing principle (0+ / 0-)

          would be in effect here?  For rules that are strictly procedural, the Constitution grants both chambers full control over their own rules (Article 1, Section 5).  It's hard to see how the cloture rule violates any principle that overrides that power, especially when the Senate adopted those rules by unanimous consent...

          Stripping votes from Black Senators would violate all kinds of laws, not to mention Equal Protection.  I'm not sure I see anything similar here.

          Saint, n. A dead sinner revised and edited. - Ambrose Bierce

          by pico on Mon Dec 10, 2012 at 10:37:37 PM PST

          [ Parent ]

          •  exactly (1+ / 0-)
            Recommended by:

            we can argue that it's wrong, or unhelpful, or anti-democratic, etc and work to change it but the Constitution clearly and unambiguously gives them full power to set their own procedural rule and the filibuster is by definition a procedural rule.

          •  Interestingly enough (1+ / 0-)
            Recommended by:

            I was going to suggest that passing both houses by majority would be the violated principle.  However, reviewing the text of Art I, section 7 I find no mention of any majority requirement, just that it be done by Yeas and Nays. So, I guess if the Senate wants to require unanimity to pass laws it very well could  

            Hay hombres que luchan un dia, y son buenos Hay otros que luchan un año, y son mejores Hay quienes luchan muchos años, y son muy buenos. Pero hay los que luchan toda la vida. Esos son los imprescendibles.

            by Mindful Nature on Tue Dec 11, 2012 at 08:57:18 AM PST

            [ Parent ]

      •  can someone explain... (1+ / 0-)
        Recommended by:

        why these rules don't violate "one man - one vote" ?  It makes each minority vote bigger than a majority vote.  

        Free markets would be a great idea, if markets were actually free.

        by dweb8231 on Mon Dec 10, 2012 at 07:48:07 PM PST

        [ Parent ]

        •  How so? (0+ / 0-)

          Aren't 2/3 votes constitutionally kosher (and in some cases, required) for certain procedures?  Why would the Senate self-selecting a higher threshold for cloture be any more problematic?

          Saint, n. A dead sinner revised and edited. - Ambrose Bierce

          by pico on Mon Dec 10, 2012 at 10:12:02 PM PST

          [ Parent ]

          •  Yes, the constitution does set... (0+ / 0-)

            2/3rds requirements in a very few specific instances.  The cloture rule (60 votes) and constitutional amendments like California's super majority vote requirement for bills involving tax increases however, do not fall under that Constitutional stricture.

            Congress has made laws in the past which have later been found unconstitutional.  I do recognize the reluctance of the courts to get into the rules of the Senate, but the plain fact is that with a cloture rule, those who lost elections have defacto given themselves far more power than the electorate gave them.

            The voters said they want tax rates on the wealthiest increased as evidence by the outcome of the election and by polls.  But if a bill is proposed to do that, a minority of Republicans could simply filibuster under the existing rules and block the vote.  

            They don't have a majority, but if they are given the right to demand 60 votes instead of 51, even though they are in the minority, they have, in effect, given themselves votes worth >1, while the majority's votes are <1  

            Prior to the recent election in CA, Republicans, who were hanging one or two seats shy of less than one-third of the Legislature, still managed to deny voters a referendum on whether or not they wanted to extend existing taxes to help reduce the deficit.  It took a ballot initiative to force that vote and the voters spoke and agreed to increase taxes.  (The GOP clearly was deadly afraid of any vote because if the voters approved the increase it would blow a hole in their long-standing assertion that taxpayers do not want any tax increases ever.)

            The courts have established the precedent of one person, one vote.  Why is this not a violation of that precedent?  Yes the Constitution says the legislature can set its own rules, but what if a court challenge led to a court decision that the rules they set are unconstitutional?

            Free markets would be a great idea, if markets were actually free.

            by dweb8231 on Tue Dec 11, 2012 at 08:00:30 AM PST

            [ Parent ]

            •  Here's the problem: (0+ / 0-)
              those who lost elections have defacto given themselves far more power than the electorate gave them.
              No, because those who won the elections proposed that rule, and it was passed unanimously (as it usually is) at the start of the session.

              "One person, one vote" is the wrong way to frame this discussion: it's a meaningless argument in the face of procedural rules of this kind.  Your better angle is to cite United States v. Ballin and argue that cloture effectively trumps the majority votes required of the Constitution.  It's still a longshot, but it's at least a defensible argument.

              Saint, n. A dead sinner revised and edited. - Ambrose Bierce

              by pico on Tue Dec 11, 2012 at 10:33:14 AM PST

              [ Parent ]

        •  Article1, Section 5, paragraph 2 (0+ / 0-)

          US Constitution.

          Each House may determine the rules of its proceedings, ...
          In short, they have exclusive right to do anything they want.  They could require unanimous consent to pass any legislation or, on the other hand, if one Senator consents to a House action then it is considered adopted by the Senate.  

          These are two extremes, but it illustrates the power to set their own rules, fairness does not enter into this discussion except as an abstract principle.

          However, I think Pico is right, this is a message, sent via lawsuit.  

          On the practical side, the Supreme court is not going to touch this issue (except to deny any appeal citing Art 1.5.2,

          There are WAY to many ways the Senate and House can screw with the Supreme court if it interjects and meddles with their privileges and rules.  The Supreme court sticking their nose into Senate business will make the Senate want to meddle back... Hard.

          Clear Now?

          ... the watchword of true patriotism: "Our country - when right to be kept right; when wrong to be put right." - Carl Schurz; Oct. 17, 1899

          by NevDem on Mon Dec 10, 2012 at 11:42:52 PM PST

          [ Parent ]

    •  Yeah (4+ / 0-)
      Recommended by:
      twigg, Onomastic, HappyinNM, Larsstephens

      I have a hard time seeing it move forward and not just being dismissed now. It's hard to imagine a judge wanting to get into this.

      "There’s class warfare, all right, but it’s my class, the rich class, that’s making war, and we’re winning." —Warren Buffett

      by Joan McCarter on Mon Dec 10, 2012 at 03:29:47 PM PST

      [ Parent ]

      •  I read about this case this morning in the (3+ / 0-)
        Recommended by:
        Eric Nelson, bear83, Larsstephens

        Washington Post.

        While it seems unlikely that a judge would take the case, this bit of banter made it seem as if the judge was interested.

        “It’s beyond the power of the court to line edit the Senate rules,” said Thomas E. Caballero, an attorney for the Senate who described the stalled bills as the “natural outcome” of the legislative process.

        At one point, Sullivan asked, “So, House members are just out of luck?”

        The judge gave Senate attorneys until Thursday to respond to the questions of whether there is a constitutional right to have bills passed by majority vote, and whether the filibuster process violates that right.

        I don't know where it goes after there. However, regarding standing, Common Cause has clients who were denied rights based on the Senate filibustering the Dream Act. It should be interesting to follow.
    •  twigg - nothing unconstitutioanl about the (10+ / 0-)

      Norquest pledge for the simple reason that it isn't a legally binding contract. It is no different that if any member of Congress pledging to not cut SocSec or Medicare benefits. The remedies for taking or violating these pledges is political, not legal. Pledges are just another form of campaign promises.

      "let's talk about that"

      by VClib on Mon Dec 10, 2012 at 03:34:11 PM PST

      [ Parent ]

  •  "Incompatible with the Constitution" (10+ / 0-)

    Interesting showdown.  I see the Senate's objections to judicial interference in its own rule-making, but when those rules actually impede the people's ability to have laws passed, as outlined in the Constitution?  Hmmm.  

    My preference would be for the Senate to revise its own rules, but it doesn't seem completely unreasonable to have judicial oversight of such a critical Constitutional issue.

    •  It's completely unreasonable (4+ / 0-)
      Recommended by:
      dinotrac, lorell, qofdisks, soros

      Sorry, the Constitution clearly says that Congress sets its own procedures. It's ok (legally speaking) for Congress to fail to do its job. The remedy is the ballot box.

      (-5.50,-6.67): Left Libertarian
      Leadership doesn't mean taking a straw poll and then just throwing up your hands. -Jyrinx

      by Sparhawk on Mon Dec 10, 2012 at 07:01:31 PM PST

      [ Parent ]

      •  So can one Senate make rules (2+ / 0-)
        Recommended by:
        Eric Nelson, bear83

        that the next Senate will be stuck with?

        It's been a hundred years, isn't it time we stopped blaming Captain Smith for sinking the Titanic?

        by happymisanthropy on Mon Dec 10, 2012 at 07:15:02 PM PST

        [ Parent ]

        •  Well, of course. The filibuster. (1+ / 0-)
          Recommended by:
        •  That is the question... (1+ / 0-)
          Recommended by:

          Is the Senate a long standing body, or do each of its sessions have the same limitations as those of the House: i.e. that no Senate may impose upon future Senate sessions. SCOTUS has ruled that for the House, rules must be reinstated every session, but hasn't ruled for the Senate...

          I would argue that at some point the same logic that held for the House would have to hold for the Senate - that long-dead Senators can't dictate to their successors the rules of the body. That is what, hopefully, Sen. Tom Udall and co-sponsors of filibuster reform will be arguing in January.

          Necessity is the plea for every infringement of human freedom. It is the argument of tyrants; it is the creed of slaves. - William Pitt

          by Phoenix Rising on Mon Dec 10, 2012 at 07:27:52 PM PST

          [ Parent ]

        •  No, not "stuck with" per se (0+ / 0-)

          Each January the Senate can vote on its procedural rules. If it wants to do away with the filibuster altogether then it can. Or just change the way it works, e.g., requiring the presence and oration of the leader who is filibustering.

          That last bit, incidentally, is exactly what Reid is proposing to do. That used to be the case, and can be again.

      •  I think there are limits (1+ / 0-)
        Recommended by:

        I imagine a rule giving black senators three fifths of a vote might incur judicial oversight for example.   Given that the question is where the limits on the authority are

        Hay hombres que luchan un dia, y son buenos Hay otros que luchan un año, y son mejores Hay quienes luchan muchos años, y son muy buenos. Pero hay los que luchan toda la vida. Esos son los imprescendibles.

        by Mindful Nature on Mon Dec 10, 2012 at 07:43:25 PM PST

        [ Parent ]

  •  If the SCOTUS can... (21+ / 0-)

    ...overrule a line-item veto, why can't they overrule the filibuster?

    When they overruled the line-item veto, they said that Congress could not delegate their powers (something that is not in the Constitution, but the SCOTUS sometimes makes stuff up). The filibuster basically delegates to 40  Senators the powers of 51 Senators.

    It also goes against the spirit of the compromise that created the Senate. The Founders already gave a small minority extra rights to influence legislation: That minority is known as "New Hampshire, Rhode Island, Delaware, and South Carolina" (only some snark intended).

    Creating an even smaller minority and granting them even more rights was not contemplated by the Founders at all.

    I see no reason that the SCOTUS shouldn't hear the case and a lot of good reasons for them to side against the filibuster.

    •  Makes Sense to This Legal Layman. nt (0+ / 0-)

      We are called to speak for the weak, for the voiceless, for victims of our nation and for those it calls enemy.... --ML King "Beyond Vietnam"

      by Gooserock on Mon Dec 10, 2012 at 03:04:45 PM PST

      [ Parent ]

    •  Because Congress gets to make its own (11+ / 0-)

      rules, and the President wasn't empowered to write his own legislation through nullification.

      The two aren't the same, and it's not a matter of "spirit" but plain reading.

      This place needs a PVP server.

      by JesseCW on Mon Dec 10, 2012 at 03:14:47 PM PST

      [ Parent ]

      •  Except the president uses 'signing statements' (0+ / 0-)

        to ignore the stuff he considers 'unconstitutional.' That is, in effect, nullification.

        Filibuster reform now. No more Gentleman's agreements.

        by bear83 on Mon Dec 10, 2012 at 08:45:19 PM PST

        [ Parent ]

        •  It doesn't change what the law *is*. It's (0+ / 0-)

          a statement by a President that he intends to violate his oath and betray the country.

          Voters keep re-electing them after they do it, though.  WE were intended to be the primary check on Presidents who just blatantly refuse to do their jobs.

          This place needs a PVP server.

          by JesseCW on Tue Dec 11, 2012 at 03:04:52 AM PST

          [ Parent ]

    •  That was a very different thing. (2+ / 0-)
      Recommended by:
      Mindful Nature, cstark

      The line item veto was, in effect, giving the executive branch the power to re-write laws, and writing law is the domain of the legislature.

      The Senate rules apply to...the Senate.  No separation of powers issue there.

      LG: You know what? You got spunk. MR: Well, Yes... LG: I hate spunk!

      by dinotrac on Mon Dec 10, 2012 at 07:10:34 PM PST

      [ Parent ]

    •  I have got to agree, even though (1+ / 0-)
      Recommended by:

      I am loathe to interfere in internal Senate rules; these have developed organically over the life of the institution, and should be countermanded by the judicial branch only under the most clear violations of  Constitutional "original intent."  But I have to say, on reading the brief and the arguments outlined in the diary... OK, this is a real and serious case, and the Constitutional case appears strong, and worthy of consideration.  My worry is political: that the power we surrender now could be regretted at a future point when we may need it again (as we Democrats did under Reagan and Bush1 and Bush2).  But political concerns do have to be balanced against the larger, long-view Constitutional issues at stake - and as may be expected, the political issues do not hold the more weighty position.

      If there must be trouble, let it be in my day, that my child may have peace. Thomas Paine

      by WestCider on Mon Dec 10, 2012 at 07:38:42 PM PST

      [ Parent ]

  •  If the Senate voted to make black and women (13+ / 0-)

    Senators sit in a separate room, would that be okay? I mean, it's the Senate making their own rules, right?

    "Marco Rubio es un pañuelo Rosa!" - Montgomery Burns

    by Fordmandalay on Mon Dec 10, 2012 at 02:45:36 PM PST

  •  I think the intent is to help publicize the (10+ / 0-)

    current filibuster as has been suggested above.  I'm sure that still a majority of the public has little to no understanding of the current process and would be quite displeased if they were able to grasp.

    The problem is that with the current journalistic practices of the great majority of "media," sadly few are likely to understand it much better even if it is given attention.

  •  The court will doubtless find a way to punt (6+ / 0-)

    I cannot imagine any judge wanting to decide this.

    Economics is a social *science*. Can we base future economic decisions on math?

    by blue aardvark on Mon Dec 10, 2012 at 03:03:45 PM PST

  •  Isn't this (9+ / 0-)

    a political question?

    I am proud to be a Contributor at Courage Campaign Institute's
    @indiemcemopants on Twitter

    by Scottie Thomaston on Mon Dec 10, 2012 at 03:07:48 PM PST

  •  The Courts aren't about to step in this one. (2+ / 0-)
    Recommended by:
    Dallasdoc, chuckvw

    The Constitution says Congress makes its own rules of operation.  

    This place needs a PVP server.

    by JesseCW on Mon Dec 10, 2012 at 03:12:56 PM PST

  •  All kinds of awesome. (1+ / 0-)
    Recommended by:

    Also, I can kill you with my brain.

    by Puffin on Mon Dec 10, 2012 at 03:16:46 PM PST

  •  This is a very interesting development!! (2+ / 0-)
    Recommended by:
    starduster, bear83

    The minority being able to ofarbitrarily hold the majority hostage, subvert the will of the people and interfering with and obstructing the Presidents' executive powers,as a matter of common practice, is unconstitutional.

    "On this train, dreams will not be thwarted, on this train faith will be rewarded" The Boss

    by mindara on Mon Dec 10, 2012 at 03:22:25 PM PST

  •  This is a prelude... (8+ / 0-)

    and I think it's absolutely perfect.  Once the courts rule that they cannot interfere in Congressional rules, the Republicans will have no recourse after Reid changes the filibuster rule.

    This ruling will preempt a Republican challenge.

    "Ich bin ein Dachs!"

    by PvtJarHead on Mon Dec 10, 2012 at 03:27:05 PM PST

    •  PvtJ - I don't think the Senate Republicans (1+ / 0-)
      Recommended by:
      johnny wurster

      have ever thought they had legal recourse for changing the filibuster rules in the Senate.

      "let's talk about that"

      by VClib on Mon Dec 10, 2012 at 03:40:01 PM PST

      [ Parent ]

      •  Your comment makes no sense.... (2+ / 0-)
        Recommended by:
        elwior, LilithGardener

        The Rs could have legally changed the rules at the beginning of any Congress where they had the majority.  Now, if you meant "challenge" it makes slightly more sense, but...

        Wingnut heads will explode when Reid reforms the filibuster.  Some will call it unconstitutional.  Some will call it treason.  Some will say it's the equivalent of a coup.  If you don't think the Rs will try every conceivable option to try to stop it you're kidding yourself.

        They absolutely would try to fight it in court...  With this move they're stopped before they get the chance.

        "Ich bin ein Dachs!"

        by PvtJarHead on Mon Dec 10, 2012 at 04:43:05 PM PST

        [ Parent ]

        •  the (R)s never would've challenged (3+ / 0-)
          Recommended by:
          chuckvw, nextstep, VClib

          filibuster rules in court.  that was the point.

        •  PvtJ - Nope (0+ / 0-)

          The R's understand that the Senate can change its own rules and have never thought the courts were a remedy for changes in the filibuster rules regardless of this case. If the rules are changed they won't like it, but they would have never gone to court to stop them. My guess is that the filibuster rule changes will be modest and done with consultation from the Rs. Reid does not have 51 votes for substantive changes in the filibuster rules.

          "let's talk about that"

          by VClib on Tue Dec 11, 2012 at 12:05:00 AM PST

          [ Parent ]

          •  I think PvtJ's point was not that (0+ / 0-)

            the R Senators' heads would explode, but rather that their constituents' heads would explode. Not that I'm advocating violence, but for me, that would constitute a win/win scenario if done literally.

            "Lone catch of the moon, the roots of the sigh of an idea there will be the outcome may be why?"--from a spam diary entitled "The Vast World."

            by bryduck on Tue Dec 11, 2012 at 09:19:11 AM PST

            [ Parent ]

  •  a waste of time and money. (4+ / 0-)
    Recommended by:
    VClib, newinfluence, coffeetalk, dinotrac

    certainly there are cheaper ways of issuing a press release.

  •  The parties to the suit are smart enough to know (4+ / 0-)

    ...that no court will touch this. As much as I wish there was judicial oversight of Congressional operations, I would be downright stunned to see this move forward.

    "Mitt Romney isn't a vulture capitalist: vultures only eat things that are dead." -S. Colbert

    by newinfluence on Mon Dec 10, 2012 at 03:59:47 PM PST

    •  which is why sanctions against the (4+ / 0-)

      lawyers that filed the complaint wouldn't be inappropriate.

      its hard to imagine they filed it in good faith.

      •  I wondered about that... (0+ / 0-)

        ...but I haven't yet read enough to know if there's anything sanctionable, so I left it out of my comment. It was the first thing that came to mind when I read this, though. I'll be interested to see if there's a novel approach beyond the third-party argument I've heard a couple of House members make on radio shows or if this is just a media grab.

        "Mitt Romney isn't a vulture capitalist: vultures only eat things that are dead." -S. Colbert

        by newinfluence on Tue Dec 11, 2012 at 02:01:57 AM PST

        [ Parent ]

  •  Very slim chance of prevailing. (0+ / 0-)

    It is a political question and the courts don't like to dive into those.

  •  Dear Antonin (2+ / 0-)
    Recommended by:
    mightymouse, bear83

    Do you see 60 vote filibuster in the Constitution?  No, I didn't think so.

  •  Gut feeling, the chart is misleading (1+ / 0-)
    Recommended by:

    I wonder what that chart would look like if it was parsed by presidential term, not some artificial six year senate cycles.  
    I bet it would be even more stark, R's obstructing a D president.  Maybe I should do some more research before I comment.  Just sayin'.

  •  I wish the taxpayer could challenge Congress... (3+ / 0-)
    Recommended by:
    mightymouse, chuckvw, HappyinNM

    for taking our tax dollars to fund their salaries when they have been doing nothing to earn their pay.

    The filibuster has been used as a political weapon instead of a legislative tool.  

    If Congress is too dysfunctional to put aside political warfare; if they would rather filibuster and investigate than legislate--then maybe it's time for some outside intervention.  

  •  Congress has the right to establish its own rules (1+ / 0-)
    Recommended by:

    Point blank. Section 5, clause II.

    A constitutional amendment requiring each chamber to not impose a rule contravening 50%+1 would be needed to change that in lieu of a change in the Senate's rules coming internally.

    "The two pioneering forces of modern sensibility are Jewish moral seriousness and homosexual aestheticism and irony." Susan Sontag

    by Shane Hensinger on Mon Dec 10, 2012 at 07:12:19 PM PST

  •  Sorry, but going nowhere fast (political question) (0+ / 0-)

    You have exactly 10 seconds to change that look of disgusting pity into one of enormous respect!

    by Cartoon Peril on Mon Dec 10, 2012 at 07:14:26 PM PST

  •  Lotsa luck (0+ / 0-)

    This isn't happening. It is so not happening I wouldn't be surprised at a 9-zip denial.  The rules of legislative procedure are none of the judiciary's business, any more than the federal rules of civil procedure, jurisdiction, etc. are Congress's. If this dumbass suit succeeds, people will be going to court to enjoin someone's filibuster, on the grounds that if a court can make the rules for Congress, it can enforce them too.

    The reason we don't like the filibuster is that following the Civil War the South got very very good at using it, and very very good at a lot of other legislative stuff--from necessity-- and the North didn't. Our hatred of the filibuster is no more than our confession of the Southern tradition of superior legislative skill. We'd do better to get as good at it as they are.  LBJ was that good.  Of course he was  a Southerner.

    This lawsuit is going nowhere.

    •  Of course there is some overlap (0+ / 0-)

      Congress does make some rules about judicial procedure, but they are noninvasive, e.g., you have to certify certain things if you sue someone who may have been in the military, etc., and it makes many rules about time frames and sovereignty and other stuff.  That is nothing compared to what the court is now being asked to do regarding Congress--just nothing.

  •  hmm. how come I cannot share diaries anymore? (0+ / 0-)

    NO share button on the diqry so I can get this to facebook...?

    "We need a revolution away from the plutocracy that runs Government."

    by hangingchad on Mon Dec 10, 2012 at 07:19:59 PM PST

  •  But is it really a rule? (0+ / 0-)

    Just because they called the filibuster a rule doesn't mean it actually is one.  Take what McConnell himself said when he filibustered his own bill last week:

    “What we’re talking about here is a perpetual debt ceiling grant in effect to the president. Matters of this level of controversy always require 60 votes,”
    He plainly is saying it is a requirement to pass this legislation by a supermajority.  Where does that come from? I'm no lawyer but I would think the best cases come from ones that spring from common sense.  Any reading of the constitution leads you to the simple conclusion that the requirement is a 51 vote majority, and no rule should be able to change that.
  •  Maybe they're trying "this" gambit: (1+ / 0-)
    Recommended by:

    Under Constitutional provision, there are specific instances whereby a "supermajority" is required of the Senate.  AND the Constitution allows for the Senate to establish its own rules of order and conduct.

    Now then:  Is there anything "constitutional" that even requires the existence of the filibuster?  In other words: Does a simple majority of the Senate, being 50 sitting Senators and the President Pro Tempore of the chamber (being, in this case, Joe Biden), have the Constitutional right to just overturn the filibuster and move the Senate to a simple majority stance for the purpose of advancing and passing legislation?  If the courts agree to this --- and more specifically, if they agreee to this at the Federal level --- this just might be the straw that break the Republikanner beastie's back on a national level....

    I count even the single grain of sand to be a higher life-form than the likes of Sarah Palin and her odious ilk.

    by Liberal Panzer on Mon Dec 10, 2012 at 07:26:39 PM PST

  •  Petition Signed.....With Delight! (2+ / 0-)

    Did Mitch McConnell filibuster himself today?  What a moron....He just proved our case.  

  •  It's Really Not a Court Thing (0+ / 0-)

    While I'd like to end the filibuster, I don't think the courts are going to rule on this. In the end, they will rule that this is up to the Senate to decide.

    However, I agree with Bondurant and Edgar's arguments. The Constitution is very specific about when a super-majority is required, and passing regular legislation in the Senate isn't one of those times. In my opinion (and I do have one), nothing the Senate does when it's operating under this filibuster rule is legitimate. That basically means all the bills they've voted on since they came up with this crazy idea are called into question.

    And, the more they act this way, the more legitimacy they lose.

    Not only that, but (as I've said before) I think that any Senator can propose any bill at any time with the proviso that it will have limited debate and will pass by a majority vote. By writing the rules into the bill itself, it only requires that a majority pass it under those rules to make it valid.

    So, getting the rules changed or the filibuster thrown out is nice, but not really necessary.


  •  If the court would strike down the filibuster (0+ / 0-)

    of judicial nominees, that alone would be a huge victory.

    Filibuster reform now. No more Gentleman's agreements.

    by bear83 on Mon Dec 10, 2012 at 08:54:24 PM PST

  •  Actually is a sound legal argument (3+ / 0-)
    Rule XXII of the Standing Rules of the United States Senate is unconstitutional. It “reverse[s]” the democratic principle of majority rule which isa “fundamental principle of free government” on which the Constitution is based. The Federalist, No. 58, at 397 (James Madison) (Cooke ed. 1961).
    I didn't really take this thing seriously until I read through the complaint (freely downloadable version).

    Looks to me like there's a legitimate legal argument there for overthrowing the filibuster. The gist of it is that the Senate lacks the power to impose a supermajority except where it is prescribed by the Constitution. Given that the power of the Federal government itself is limited to those ennumerated in the Constituion, it stands to reason that a creature of the Constitution, like the Senate, would also be limited in the same way.

    This isn't Republican Rome where the "upper house" was established by tradition and had its own independent existence. The U.S. Senate has no existence apart from its establishment under our written Constitution. As others have so aptly pointed out in previous comments,  it would clearly be unconstitutional for the U.S. Senate to enact a rule that reduced the vote of members who were in a racial minority to 3/5 that of a white Senator. Is a rule that allows the arbitrary imposition of a supermajority requirement at the whim of a minority materially different?

    •  I'm afraid you're incorrect. (0+ / 0-)

      The Constitution explicitly assigns each House of Congress the right to formulate its own procedures:

      Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two thirds, expel a member.
      It's cut-and-dried, as far as I'm concerned, particularly since the Senate procedural rules permitting filibusters received the endorsement of a majority of Senators at the start of the 112th Congress, as per standing procedure. Sen. Reid is doing the right thing by forging a majority for filibuster reform at the start of the 113th Congress; these clowns are simply grandstanding.

      And the courts are not a tool of political theatre.

  •  While I support filibuster reform wholeheartedly, (0+ / 0-)

    the courts are not the right way to do it, as the branches of government - Executive, Legislative and Judicial - are supposed to be coequal.

    Each of them gets specific powers to hold over the other two: the Executive appoints judges, and the Legislature confirms them, while the Judiciary gets the power of judicial review over any acts undertaken by the other two. Note that each branch of government determines - and has always determined - its own procedures within its bailiwick: the Senate doesn't what court procedure is, and the Executive doesn't set the rules by which the House or Senate meet.

    For the courts to determine that a Senate procedure is un-Constitutional would be an unprecedented over-reach on the part of the judiciary, as it would essentially involve the Judiciary ruling on the constitutionality of internal procedures of the Congress. The separation of powers doctrine - firmly enmeshed into the Constitution - prohibits such interference.

    As does Article I, Section 5, Clause II of the Constitution, more explicitly:

    Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two thirds, expel a member.
    This case hasn't got a leg to stand on, and I don't think I'm being overly Village-y or "bipartisan-y" in suggesting that the only sane course of action is for the suit to be thrown out.

    I support filibuster reform - particularly the model that Sen. Reid is proposing (it's an open question whether he'll stand up to ConservaDem and Rethuglican pressure to water it down) - but the Constitution provides a procedure for it to happen, and it must be adhered to, as the Democratic Party is not in the habit of wiping its arse with the Constitution the way the GOP is. End of story.

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