Even as some Senate Democrats push to rewrite the rules governing the filibuster, the chamber's attorneys were in federal court Monday trying to defend the very existence of the filibuster against a legal challenge that says it is an affront to democracy.
The challengers — who include four House Democrats, a "good government" lobbying group and three illegal immigrants who would have benefited from a bill halted by a filibuster — said the more the Senate uses the tool, the more it distorts the founders' intent that Congress work by majority rule.
"The filibuster rule essentially imposes a 60-vote supermajority requirement on every piece of legislation coming to the Senate," said Bob Edgar, a former congressman who is now president of Common Cause, the open-government interest group. "While the Senate has the power to make its own rules, it cannot impose rules that are incompatible with the Constitution."
The oral argument was made less than a week after a federal appeals court, also in Washington, heard another major separation-of-powers lawsuit involving the Senate and its ability to deny the president his recess-appointment powers by staying in session, even though it is not doing any work.
Both cases turn in part on how much leeway the courts have to peel back the curtain on congressional procedure.
But even before he reaches those questions in this case, District Court Judge Emmett G. Sullivan will have to decide whether the plaintiffs have standing, and whether he would want to weigh in on what could be considered a political question, not a legal one.
The Senate's attorney, Thomas Caballero, argued that the court shouldn't even hear the case because the Constitution gives each chamber the right to make its own rules and procedures governing debate — and the filibuster is, at root, a parliamentary tactic of debate.
Mr. Caballero argued that nobody can predict whether a particular bill would have passed and been signed into law if only the filibuster didn't exist.
But the plaintiffs say plenty of bills could have cleared Congress but for the filibuster: the Dream Act to legalize illegal-immigrant children, which was blocked by filibuster in late 2010; parts of President Obama's health care agenda; and the Disclose Act, which would have imposed new reporting requirements on outside interest groups that play a role in political campaign advertising.
The plaintiffs said the filibuster has become far more than a debate tool — it's become a threshold every bill must meet.
Judge Sullivan ordered the Senate's attorneys to prepare more thorough briefs looking at cases the plaintiffs said illustrate how and when federal courts have stepped in to take a closer look at congressional rules and procedures.
In one of those cases, United States v. Ballin, the Supreme Court ruled in 1892 that it had no business questioning the way the House chose to establish whether a quorum was present. But the court also seemed to lay out a more fundamental reading that laws are passed by majority votes except in the specific instances laid out in the Constitution, such as ratification of treaties or trying impeachments.
"The general rule of all parliamentary bodies is that, when a quorum is present, the act of a majority of the quorum is the act of the body," Justice David Brewer said in the court's opinion.
The filibuster is not found in the Constitution, but is instead a debate tool. The 60-vote threshold to cut off debate was established by Senate rules in the 1970s; prior to 1975, the Senate had a different threshold for ending debate. Even after the Senate votes to end debate, it still must take a vote on final passage of legislation, which can be won by a simply majority.
Use of filibusters has ballooned in the past decade, with Democrats using them to stymie the Republican agenda under President George W. Bush and the GOP escalating its use even more to block parts of Mr. Obama's legislative wish list.
Senate Majority Leader Harry Reid, Nevada Democrat, announced this year that he will try to force a rules change in January to limit the number of chances to filibuster a bill — though he would not eliminate it entirely.
Minority Leader Mitch McConnell, Kentucky Republican, vehemently objected, and the two have sparred repeatedly on the chamber floor.
Mr. McConnell objects not only to the rules change, but also the way Mr. Reid plans to go about it.
The Democrat wants to use the first day of the next session, when the chamber adopts its entire rules package on a majority vote, to do the rewrite. Though that would be legal, most major rules changes are passed by a two-thirds vote, which ensures widespread support.
Both Mr. Reid and Mr. McConnell signaled they would be open to sitting down and talking about a compromise, though it's not clear what middle ground can be found.
Last year, the two men struck a gentleman's agreement that Mr. McConnell would allow more bills to come to the floor without an initial blockade, and in exchange Mr. Reid would allow Republicans to offer amendments. That deal soon collapsed, however, with each side blaming the other for its demise.
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