By Donald Scarinci | January 3rd, 2013 - 12:48pm
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Filibusters are part of the legislative process whether people like it or not.  A federal judge in Washington, D.C. recently dismissed a lawsuit challenging the constitutionality of the U.S. Senate’s filibuster rule.

“As plaintiffs allege, in recent years, even the mere threat of a filibuster is powerful enough to completely forestall legislative action,” U.S. District Judge Emmet G. Sullivan noted in his opinion. “However, this court finds itself powerless to address this issue.”

The lawsuit was brought by Common Cause, a non-profit organization devoted to government accountability and election reform, along with four members of the United States House of Representatives and three individuals who allege they would have benefitted from the DREAM Act. They alleged that that Senate Rule XXII, often referred to as the “Cloture Rule” or the “Filibuster Rule,” which requires a vote of sixty senators to proceed with or close debate on bills and a two-thirds vote to proceed with or close debate on proposed amendments to the Senate Rules, is unconstitutional because it is “inconsistent with the principle of majority rule.”

Over the history of our country, filibusters have been used to slow or derail the progress of legislation. The first Senate rule aimed close debate was enacted in 1917, at the urging of President Woodrow Wilson. The current rule was adopted in 1975. The record for the longest filibuster goes to U.S. Sen. Strom Thurmond of South Carolina, who held the Senate floor for 24 hours and 18 minutes, speaking out against the Civil Rights Act of 1957.

While once relatively rare, filibusters are now routine in the Senate. In 2009, there were a record sixty-seven filibusters in the first half of the 111th Congress -- double the number of filibusters that occurred in the entire twenty-year period between 1950 and 1969. The plaintiffs in the current lawsuit alleged that both political parties are guilty of twisting the Senate rules by using them “not to protect the right of the minority to debate the merits of a bill or the fitness of a presidential nominee on the floor of the Senate . . . , but to suppress and prevent the majority from debating the merits of bills or presidential appointments opposed by the minority.”

However, Judge Sullivan concluded that interfering with how Congress conducts its business would “offend the separation of powers on which the Constitution rests.” He specifically noted that “[n]owhere does the Constitution contain express requirements regarding the proper length of, or method for, the Senate to debate proposed legislation.” Rather, the Senate and the House of Representatives are given the authority to create their own rules.

Whether the public likes it or not, filibusters are a reality in Washington and a part of the complex process of how a bill becomes a law.

Donald Scarinci is a managing partner at Lyndhurst, N.J. based law firm Scarinci Hollenbeck.  He is also the editor of the Constitutional Law Reporter and Government and Law blogs.

 

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