Taking the Filibuster to Court: Here Are the Documents

By James Fallows

As I mentioned a few months ago, Common Cause is taking legal action against the filibuster, arguing that its recent abuse rises to the level of unconstitutional power-grab. When our site's "categories" feature, now temporarily broken, is back up and running, I'll link to previous posts on this theme. For now, here's a chart from Common Cause showing how often the filibuster has been threatened or imposed over the past century:

FilibusterCommonCause.png


Yesterday Common Cause filed briefs and documents with the U.S. District Court in Washington to support its anti-filibuster case. The main brief is here; a supporting exhibit is here; and a list of related documents is here. I Am Not a Lawyerâ„¢, although I did study law for a year. Still, this argument is mainly historical, common-sensical, and accessible to non-lawyer readers. Here are the main points in its assertion that the Senate's "Rule XXIII" -- the provision under which most current filibusters occur -- violates the spirit and intent of the framers of the Constitution:
  • First, the Framers experienced the negative effects of supermajority voting under the Articles of Confederation;
  • Second, the 60 vote requirement conflicts with the intent of the Framers;
  • Third, the 60 vote requirement conflicts with the Quorum Clause
  • Fourth, the 60 vote requirement short-circuits the "single, finely wrought procedure" in the Presentment Clause for the passage of laws by the "prescribed majority of ... both Houses;
  • Fifth, the 60 vote requirement is invalid because it conflicts with the exclusive list of exceptions to majority rule in the Constitution;
  • Sixth, the 60 vote requirement upsets the balance in the Great Compromise;
  • Seventh, Rule V in combination with Rule XXII prohibits the Senate from amending its rules by majority vote and is unconstitutional
For what is meant by each of these terms of art, I direct you to the brief itself. We are witnessing a de facto amendment/hijacking of the Constitution whose effect is to make our democracy dysfunctional. It is worth noting and supporting efforts to fight back.

This article available online at:

http://www.theatlantic.com/politics/archive/2012/08/taking-the-filibuster-to-court-here-are-the-documents/261645/