The U.S. Court of Appeals for the District of Columbia on Tuesday spiked a cockamamie scheme originated by Common Cause, a liberal lobbying group, to rewrite the rules of the U.S. Senate to make it easier to silence minority voices.
The plaintiffs in the lawsuit, egged on by Common Cause, were four Democratic members of the House, who proposed to employ judicial decree to dispense with the useful tradition of the filibuster. The appeals court said no dice.
The appellate judges upheld a U.S. district court in Washington dismissing the suit. The four House members had argued that the filibuster violates the fundamental principle of rule by majority because, by requiring a 60-vote majority, it enables a minority to foil the will of a Senate majority.
They cited two pieces of legislation, the Disclose Act and the Dream Act, that could have become law but for the filibuster. District Court Judge Emmet G. Sullivan had ruled the courts could not intrude on the internal proceedings of the legislative branch and, besides, the four House members couldn’t prove that their favored pieces of legislation would have been enacted absent a filibuster, anyway.
“As plaintiffs allege,” Judge Sullivan wrote in a decision covering 47 pages, “in recent years even the mere threat of a filibuster is powerful enough to completely forestall legislative action. However, this court finds itself powerless to address this issue.” There was more. “Plaintiffs identify no authority for the proposition that an individual has a ‘procedural right’ to any particular form of congressional consideration or debate on a bill.” In the polite language of judicial rebuke, the four House members had been told firmly to remember their place, and stay in it. Senators would take care of Senate business.
The two doomed acts deserved their doom, as do all attempts to revise, amend, abuse, malign and desecrate the First Amendment. The Disclose Act was the attempt by the Democrats to nullify the Citizens United decision of 2010, which trimmed regulations on political speech, and it would have required organizations with more than 500,000 members that produce political advertisements to publicly identify their members. Unions, a rich source of Democratic campaign cash, would have been exempt.
The Republican minority used the filibuster to force Sen. Harry Reid, the leader of the Democratic majority, to withdraw the bill from consideration, effectively killing it.
The House and Senate, as the four House members learned, have similar but not identical responsibilities. The House is closer to the voters, with its two-year terms requiring it to listen closely to public opinion, and the Senate moves more slowly to enable reflection and cautious deliberation.
The Senate was described by the Founders as a “saucer” to “cool” legislation from the House. It’s good news that the court has turned aside a meritless challenge to what remains of the filibuster, but the filibuster must be saved from the cheap passions of Mr. Reid and restored for confirmation of presidential nominations and judicial appointments.