Fighting the filibuster
President Barack Obama recently said Congress should “seize the moment” and summon a majority to push immigration reform. There is only one problem – Congress already did that.
Majorities in the House and Senate backed the DREAM Act, a bill creating a path to citizenship for young illegal immigrants brought to the United States as children, during Obama’s first term. The bill died, however, when a minority of Republicans filibustered it. So even if a new immigration majority materializes next year, Republicans can just filibuster again. Unless Erika Andiola gets her way.
The U.S. District Court for the District of Columbia is due to hear arguments Dec. 10 in Andiola’s case – an ambitious and erudite lawsuit from Common Cause – which argues that a small band of senators have turned the filibuster into an unconstitutional assault on our democratic government.
Andiola is not a U.S. citizen, so you might wonder how she ended up in the middle of this debate. She moved with her parents from Mexico to Arizona at age 11. She was a quick learner, mastering English, graduating in the top five of her class and earning an academic scholarship to Arizona State University.
Andiola was stripped of the scholarship, however, after Arizona passed a law barring undocumented students from receiving educational benefits. Now she is one of the lead plaintiffs in Common Cause v. Biden, the legal element of an escalating campaign to combat filibuster abuse in the Senate.
Andiola’s lawyers have a novel argument: She can sue the Senate because the filibuster thwarted legislation that would have protected her education.
Back on Capitol Hill, Democrats are also considering reforming the filibuster in January, once the new Senate is sworn in. Majority Leader Harry Reid (D-Nev.) says the Senate can alter its rules with a bare majority on the first day of the session. (It would require a supermajority during the rest of the year.)
Other senators – mostly Republicans, but also some Democrats – say that no matter what day it is, the rules should be changed only with a supermajority. If Reid presses on, there will be a lot more debate about that arcane parliamentary question. The answer could determine the fate of Obama’s legislative agenda. And it’s a central issue in the filibuster lawsuit.
In the briefs for the case, Common Cause documents a radical shift familiar to C-SPAN junkies across the nation: The filibuster went from a rare procedure in the Senate to standard operating procedure. The Senate used to average about two filibusters per year, notes the brief, but that number skyrocketed to 137 for Obama’s first year in office.
Even if you are not a parliamentary junkie and expert on cloture, you have probably still heard the media echo of this trend. Any time a reporter says you “need 60 votes” to pass a bill in the Senate, he is referring to Republican filibuster threats ‑ which require 60 votes to overcome.
Over the past 20 years, and particularly the last four, something radical happened in our democracy. The filibuster has gradually transformed the legislative branch of government from a majoritarian democracy into a body frozen by a “minoritarian” veto.
People can debate whether that makes for good or bad policy. Many conservatives, for example, like the gridlock because they want Congress to pass fewer laws and spend less money. The only question for the courts is whether this unusual dysfunction is constitutional.
The lawyers for Andiola and Common Cause say it’s not. They argue that a supermajority cannot be required for routine votes – let alone for a newly elected Senate to set its own rules. After running through a series of precedents, the suit mirrors Reid’s view that it would be unconstitutional to bar the Senate “from amending its rules by majority vote.”
This makes intuitive sense. Why should new senators, arriving in Washington with a new mandate from voters, be bound by rules set by senators from decades ago?
Bob Edgar, a former Democratic congressman who runs Common Cause, says the federal courts have a duty to intervene when the Senate violates the Constitution. The founding fathers were “fearful of supermajority votes,” Edgar told me, “and believed that democracy should be based on majority rule.”
Edgar cited the six specific parts of the Constitution that do require legislative supermajorities, including international treaties and overriding a presidential veto. In all other cases, he said, the Federalist Papers reflect a commitment to majority rule.
“The filibuster was invented by Aaron Burr by accident, 20 years after the Constitution,” Edgar said. “And up until 1970 it was used more often to protect slavery and lynching laws [than any other policies].”
Even given a compelling historical argument against the filibuster, however, the federal courts try to avoid refereeing political disputes in Congress. There is a whole body of law, called “the political question doctrine,” devoted to the idea that the courts should duck politics.
And a partisan, post-election debate over how the Senate organizes itself could look like a classic political squabble.
On the other hand, political heat is not supposed to prevent courts from defending the Constitution – even if it means challenging congressional prerogatives.
Here’s an unambiguous hypothetical: If the Senate refused to count a new member’s votes because she was a woman, courts would surely address such a blatant violation of equal protection under the 14th Amendment.
The example may sound far-fetched for 2012, but the filibuster suit argues that the Senate is in equally unlawful territory by refusing to count the votes of the majority.
Common Cause also points to big, partisan skirmishes where the Supreme Court has intervened, such as when the House of Representatives ejected New York Representative Adam Clayton Powell Jr. in 1967 or when Congress tried to alter veto powers under the Constitution. In one unanimous opinion, the Court concluded that while “each house” of Congress does get to make its own rules, it “may not by its rules ignore constitutional restraints or violate fundamental rights.”
What could be more fundamental, after all, than ensuring that the voters’ chosen representatives can govern democratically?
PHOTO: The U.S. Capitol building in Washington. REUTERS/Jim Bourg