Suing the Filibuster

(John Lewis)

John Lewis is suing Joe Biden. Lewis is the Georgia Congressman who as a young man was bludgeoned and tear-gassed by Alabama State Troopers breaking up a civil rights march in Selma, Alabama.

Erika Andiola is also suing Joe Biden. Andiola is an Arizona State University graduate in her twenties who was brought to the United States by her parents when she was 11 years old. Currently, she is undocumented.

Common Cause is the lead plaintiff in the suit filed against Biden, and the Senate parliamentarian and sergeant at arms.

Erika Andiola is suing Joe Biden. Andiola is an Arizona State graduate brought to the United States by her parents when she was 11.

Consider Biden a technical defendant. As president of the Senate he is responsible for enforcing Senate Rule XXII, which Andiola and six other plaintiffs are trying to overturn in federal court.

The rule requires “60 votes to close debate in the Senate on motions to proceed, bills, and nominees, and a two-thirds vote to close debate on a resolution to amend Senate rules.” It is the filibuster rule.

The lawsuit might be considered a long shot.

But the plaintiffs’ lead attorney, Emmet Bondurant, is the name partner in a prominent Atlanta law firm and one of the most accomplished anti-trust lawyers in the nation. He also has a long history of litigating voting-rights cases. Each of the parties has what appears to be a valid cause of action.

Lewis, Michael Michaud, Hank Johnson and Keith Ellison, all Democratic House members, allege that votes they cast on two bills overwhelmingly passed in the lower chamber of Congress were unconstitutionally nullified by a Senate that requires a supermajority of 60 to bring a bill or nominee to the floor for a vote.

Erika Andiola, Celso Mireles, and Caesar Vargas—three undocumented residents brought to the United States as young children—allege that the DREAM Act, which would have provided them legal status in the country, was nullified by the Senate after passing by a large margin in the House.

Common Cause alleges that the work the organization did to get the DISCLOSE Act—which would have required prompt disclosure of political contributions by corporations and individuals—through the House was nullified by the Senate.

The suit was filed a year and a half before the Senate Democratic Conference rewrote part of the filibuster rule in November, allowing a simple majority to confirm executive department and agency appointees, and judicial appointees except nominees to the Supreme Court.

The plaintiffs claim that when the Senate replaced the minority rule with the 60-vote rule, in 1805, it created a system that conflicts with the history and text of the Constitution.

Plaintiffs lost the first round last year when D.C. District Judge Emmet Sullivan ruled the questions raised are political and non-justiciable. Sullivan also wrote that any ruling by a federal judge on this issue would amount to encroachment on the authority and the independence of the Senate.

The case now moves to the federal appeals court that was at the center of the filibuster fight that played out in November.

For five years, Senate Republicans had successfully protected a Republican majority on D.C. Circuit Court of Appeals by blocking Obama’s nominations. The confirmation of Patricia Millett by a simple majority marked an end to the 40-senator filibuster. Her confirmation also tipped the balance of the court to Democratic appointees. Obama has two more nominees queued up for confirmation votes in the Senate. Both will be confirmed before Common Cause v. Biden is argued before the court.

A decision on the constitutionally of the filibuster now rests in the hands of appellate court whose Democratic majority was confirmed only because Senate Democrats pared back the filibuster in November.


Lou Dubose is the editor of The Washington Spectator.