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Common Cause’s Impossible Dream

When Common Cause filed this lawsuit challenging the constitutionality of the filibuster, the legal establishment scoffed. Critics called it “ridiculous,” “specious,” and “frivolous.” They said the courts would toss the case on jurisdictional grounds without reaching the merits. They said a rag tag bunch of public interest lawyers, Democratic House Members and illegal aliens stood no chance against the world’s greatest deliberative body. (Ok, I might have made up that last part).

But as much as we like a good David versus Goliath story, I would bet on Goliath here. Apart from the merits of any constitutional objection to the filibuster (or lack thereof, as I have argued here and here; see also Ed Whelan’s comments), the Common Cause lawsuit suffers from three fundamental defects: (1) the lack of plaintiffs with legally cognizable injuries, (2) the absence of defendants to whom the alleged injuries could be attributed, and (3) the inability of a federal court to redress the alleged injuries even if proper defendants were before it.

Plaintiffs. The plaintiffs’ claims of injury fall into two main categories. First, four members of the House of Representatives allege injury in their legislative capacities. Specifically, they say that their votes in favor of certain legislation, such as the DISCLOSE Act (requiring the disclosure of certain contributions related to federal elections) and the DREAM Act (granting a path to citizenship for certain non-citizens who were brought into the country illegally when they were children), were “nullified” when the filibuster was employed to block Senate approval of these measures in the last Congress.

It seems odd to claim that Members of the House have been injured by a Senate rule. Needless to say, Members of the House have no right to vote in the Senate, nor to demand that the Senate consider, much less pass, any legislative measure.  A Senator would seem to have a more facially plausible claim of injury resulting from the filibuster. I have it on good authority that Common Cause was expecting to have a Senator join the lawsuit as a plaintiff, but whoever it was apparently thought better of it.

Be that as it may, even a Senator would have little chance of success in light of the Supreme Court’s decision in Raines v. Byrd, 521 U.S. 811 (1997), which generally forecloses individual Members of Congress from suing for injuries in their legislative capacities. The decision does leave open the possibility of such suits in a narrow set of circumstances, but that exception does not appear to apply to the Common Cause case.

Presumably recognizing this problem, Common Cause asserts a second category of injury. Three non-citizen plaintiffs allege that they have been injured by the use of the filibuster to block the DREAM Act, which would have provided them a path to citizenship. The congressional plaintiffs also allege that they have been personally injured by the failure of the previous Congress to enact the DISCLOSE Act because it would have required the disclosure of donors allegedly funding negative ads against them in their districts.

(It is worth stepping back a second and noting the attenuated nature of the alleged injury to the congressional plaintiffs. They cannot claim an injury based on the negative ads themselves because the First Amendment allows criticism of elected officials. They cannot claim a direct informational injury because there is no legal obligation to provide the identities of the funders of these ads. So instead they claim an injury resulting from the failure to enact legislation that would have required disclosure and perhaps in some unexplained way mitigated the harm caused by ill-mannered citizens who dare to cast these congressmen in a negative light).

This theory of injury has the advantage of not being explicitly foreclosed by a Supreme Court opinion, but perhaps only because no one has ever thought before to allege an injury caused by the absence of a law providing a desired benefit. At the outset, it is not at all clear that the plaintiffs can establish that the filibuster was the “but for” cause of the failure to enact any particular piece of legislation. To reach this conclusion, a court would have to find (1) that the Senators who voted for cloture would necessarily have voted for the legislation on final passage, (2) that the version of the legislation that ultimately passed the Senate would have been identical to that which passed the House, and (3) that the President would have signed the legislation (allowed it to go into effect). While Common Cause may believe that these things are true, the D.C. Circuit has noted, in rejecting Judicial Watch’s (seemingly self-evident) claim that the filibuster has caused confirmation delays for federal judgeships, it is not enough “to rely simply on intuition.” Judicial Watch, Inc. v. United States Senate, 432 F. 3d 359 (D.C. Cir. 2005).

But even if we assume that the filibuster “caused” the non-enactment of the DISCLOSE and DREAM Acts, it does not follow that it was the legal cause of the injuries plaintiffs claim (namely the lack of information regarding donors to the their political opponents in the case of the congressional plaintiffs and the risk of deportation in the case of the DREAM Act plaintiffs). These injuries pre-dated the use of the filibuster to block the desired legislation, and thus it is hard to see how the filibuster could have caused them. As the Senate defendants put it in their motion to dismiss: “plaintiffs cannot manufacture a causal connection to the cloture rule and the Senate’s failure to invoke cloture on any particular legislation merely by asserting that Congress’s failure to provide legislative relief for plaintiffs’ existing injuries is the cause of those injuries.”

Common Cause seeks to tie the use of the filibuster to specific legislation it allegedly prevented in order to get around the well-established rule that citizens lack standing to assert “generalized grievances” regarding allegedly unconstitutional government conduct. The courts have in fact dismissed prior challenges to the filibuster on precisely that basis. See Page v. Shelby, 995 F. Supp. 23 (D.D.C.), aff’d, 172 F.3d 920 (D.C. Cir. 1998). But Common Cause’s effort is too clever by half. It would open the door to lawsuits by any person who could claim a benefit from legislation that would have allegedly passed but for the filibuster, or indeed any other House or Senate rule that a plaintiff might want to challenge. It seems very unlikely that the courts will accept this novel theory.

Defendants. If Common Cause’s attempt to manufacture plaintiffs is a stretch, its selection of defendants is even more questionable. Rather than suing the Senate or Senators, it has sued the Vice President of the United States and three other Senate officers, the Secretary of the Senate, the Sergeant at Arms and the Parliamentarian.

It seems obvious that the Secretary, Sergeant at Arms and Parliamentarian have nothing to do with plaintiffs’ alleged injuries because they in no way caused the adoption of the filibuster or its employment with respect to particular legislation and because they would have no power to do either in any event.

The inclusion of these Senate officers is based on a misunderstanding of the Supreme Court’s decision in Powell v. McCormack, 395 U.S. 486 (1969), in which the Court allowed an excluded member of the House to challenge the constitutionality of his exclusion by suing the Sergeant at Arms. The key to that decision, however, was that the Sergeant at Arms was responsible for paying members and had withheld the plaintiff’s salary. Because of his responsibility for this separate non-legislative act, the Court held that he was a proper defendant. However, none of the Senate officers here are alleged to have performed or been responsible for any analogous act.

The Vice President might seem a somewhat more plausible defendant. Like the other three Senate officers, he has no role in adopting the filibuster or in deciding when to employ it. However, when presiding over the Senate, the Vice President could be asked by a Senator to rule on whether a particular measure is subject to the filibuster. His ruling in this regard might arguably be said to play some role in causing plaintiffs’ injuries.

Unfortunately for Common Cause, it does not appear that the Vice President was actually presiding over the Senate at the time of the filibusters in question, or that he issued any relevant ruling, or that any Senator asked for a ruling from any presiding officer. Leaving this inconvenience aside, however, any ruling by a Senate presiding officer is subject to appeal to the Senate, which can reverse it by a majority vote. Thus, if the Vice President had either sustained or rejected a challenge to a filibuster, the ruling would certainly have been appealed to the Senate, which would have had the final word on the question.

Why did Common Cause not sue the obvious defendants, namely the Senate itself and/or the members thereof? The reason, as explained below, is that Common Cause recognizes that there are insuperable jurisdictional barriers, such as the Speech or Debate Clause, to a federal court entering relief against the Senate or its members. However, Common Cause cannot circumvent these barriers by suing defendants who did not cause and cannot redress its injuries. Moreover, even if the Vice President (or the other officers) had played a role in causing the alleged injuries, this role would have been legislative in nature and therefore equally protected by the Speech or Debate Clause.

Redressability. Even if Common Cause had named plaintiffs with cognizable injuries and defendants who could be legally responsible for those injuries, the case would have to be dismissed because a federal court lacks the power to redress those injuries. To begin with, the relief requested by Common Cause (a declaration that the filibuster is unconstitutional) would clearly not redress the injuries asserted as the result of the non-passage of the DISCLOSURE and DREAM Acts. There is no reason to believe that either of these laws, neither of which has passed the House in the current Congress, would be enacted into law if the filibuster were struck down.

The only way for a court to redress the asserted injuries would be to order the political branches to enact these laws (or perhaps simply to deem them enacted without bothering with the niceties of passage and presentment). Even Common Cause would not dream of asking for such relief, however.

A federal court also lacks the power to redress Common Cause’s objection to the filibuster itself. As already noted, the defendants before the court are not Senators and have no power to change the Senate rules even if a court ordered them to do so.

Finally, a federal court simply lacks the power to order the Senate, directly or indirectly, to rewrite its rules. Although the courts have not had to reach the question in previous challenges to the filibuster, the D.C. Circuit noted in the Judicial Watch case that any request for such relief would present “the most acute problems, given the Senate’s independence in determining the rules of its proceedings and the novelty of judicial interference with such rules.” Were a court to reach the issue, it seems virtually certain that it would find such relief barred by some combination of separation of powers, the Speech or Debate Clause and the political question doctrine. The Senate defendants elaborate on these issues in their motion to dismiss.

Common Cause’s opposition to the motion to dismiss is due on August 27. It will be interesting to see what it has to say, but right now I would put its chances of avoiding dismissal at near zero.

 

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