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Common Cause’s Impossible Dream: Act II

Not surprisingly, the D.C. Circuit has affirmed the district court’s dismissal of Common Cause’s challenge to the constitutionality of the filibuster. Like the court below, the appellate panel found the plaintiffs lacked standing to sue, but its rationale was somewhat different. The district court’s decision was rooted in the absence of a cognizable injury and the court’s lack of power to remedy the harm allegedly caused by the filibuster rules (namely Congress’s failure to enact two pieces of legislation, the Dream Act and the Disclose Act, that would have benefitted the plaintiffs). It also concluded that the suit was barred by the political question doctrine.

The D.C. Circuit, on the other hand, “focus[ed] on whom Common Cause chose to sue—or, more to the point, not to sue.” The Senate, of course, is responsible for enacting and enforcing its own rules, yet Common Cause did not name the Senate or any senator as a defendant. Instead, it sued the Vice President and three Senate officers.

This was a transparent ploy to circumvent the Speech or Debate Clause, which would certainly have required the dismissal of any suit against the Senate or particular senators. As the court points out, what defeated the Dream and Disclose Acts was “legislative action, activity typically considered at the heart of the Speech or Debate Clause.” There was, however, no need to decide whether the Clause barred suit against the Vice President and Senate officers because these were simply the wrong defendants.

The court was unimpressed by Common Cause’s reliance on Powell v. McCormack, 395 U.S. 486 (1969), in which a member of the House was able to challenge his expulsion by suing the Sergeant at Arms to recover back salary. As we have discussed before, the Sergeant at Arms was responsible for paying Powell’s salary and thus could be said to have caused this very specific injury to the plaintiff. But nothing in the Supreme Court’s decision suggests that congressional officers can be used generally as stand-ins whenever someone wants to challenge an allegedly illegal House or Senate action.

In contrast to the situation in Powell, the court notes “Common Cause does not identify anything the defendants did (or refrained from doing) to cause its alleged injuries.” The only remotely plausible link is the Vice President’s role as presiding officer of the Senate, but any ruling by the presiding officer is subject to appeal to the full chamber. Thus, even if the Vice President had been presiding at the time of the votes Common Cause complains of (which he was not), and even if he had ruled on a relevant issue (which he did not), it would still be the Senate, not the Vice President, that caused the alleged injury.

Accordingly, Common Cause’s failure to sue the Senate or any senator leaves it “Hoist with [its] own petar,” as the court puts it, quoting Hamlet (act 3, scene 4, if you were wondering).

To appeal or not to appeal, that is the question. Perhaps Common Cause’s quixotic quest (to mix metaphors) will yet have a third act. Or perhaps it will decide it is nobler in the mind to suffer the slings and arrows of outrageous fortune. Only time will tell.

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