THE BLOG
12/10/2012 11:25 am ET Updated Feb 09, 2013

In Court Today, a Battle Over Whether the Filibuster Is Constitutional

President Obama recently said Congress should "seize the moment" and summon a majority to push immigration reform. There is only one problem -- Congress already did that.

During Obama's first term, majorities in the House and Senate backed the DREAM Act, (the bill creating a path to citizenship for the children of undocumented workers). The bill died, however, when a minority of Republicans filibustered it. So even if a new immigration majority materializes next year, Republicans can just filibuster again. Unless Erika Andiola gets her way.

Today a federal court in Washington heard Andiola's case -- an ambitious and erudite lawsuit from Common Cause -- which argues that a small band of senators have turned the filibuster into an unconstitutional assault on our democratic government.

Andiola is not a U.S. citizen, so you might wonder how she ended up in the middle of this debate. She moved with her parents from Mexico to Arizona at age 11. She was a quick learner, mastering English, graduating in the top five of her class and earning an academic scholarship to Arizona State University.

Andiola was stripped of the scholarship, however, after Arizona passed a law barring undocumented students from receiving educational benefits. Now she is one of the lead plaintiffs in Common Cause v. Biden, the legal element of an escalating campaign to combat filibuster abuse in the Senate.

Andiola's lawyers have a novel argument: She can sue the Senate because the filibuster thwarted legislation that would have protected her education. And in the briefs for the case, Common Cause documents a radical shift familiar to C-SPAN junkies across the nation: The filibuster went from a rare procedure in the Senate to standard operating procedure. The Senate used to average about two filibusters per year -- but that number skyrocketed to 137 for Obama's first year in office.

Even if you are not an expert on cloture, you have probably still heard the media echo of this trend. Any time a reporter says you "need 60 votes" to pass a bill in the Senate, he is referring to Republican filibuster threats ‑- which require 60 votes to overcome.

Over the past 20 years, and particularly the last four, something radical happened in our democracy.

The filibuster has gradually transformed the legislative branch of government from a majoritarian democracy into a body frozen by a "minoritarian" veto.

People can debate whether that makes for good or bad policy. (Many conservatives, for example, like the gridlock because they want Congress to pass fewer laws and spend less money.) The only question for the courts is whether this unusual dysfunction is constitutional.

The lawyers for Andiola and Common Cause say it's not. They argue that a supermajority cannot be required for routine votes -- let alone for a newly elected Senate to set its own rules. After running through a series of precedents, the suit echoes the view of Senate Democrats who are angling to change the rules by majority vote -- asserting that it would actually be unconstitutional to bar the Senate "from amending its rules by majority vote."

This also makes intuitive sense.

Why should new senators, arriving in Washington with a new mandate from voters, be bound by rules set by senators from decades ago?

On the other hand, even with strong historical argument against the filibuster, the federal courts generally try to avoid refereeing political disputes in Congress. There is a whole body of law, called "the political question doctrine," devoted to the idea that the courts should duck politics. A partisan, post-election debate over how the Senate organizes itself could look like a classic political squabble.

Still, political heat is not supposed to prevent courts from defending the Constitution itself -- even if it means challenging congressional prerogatives. Here's an unambiguous hypothetical: If the Senate refused to count a new member's votes because she was a woman, courts would surely address such a blatant violation of equal protection under the 14th Amendment.

The example may sound far-fetched for 2012, but the filibuster suit argues that the Senate is in equally unlawful territory by refusing to count the votes of the majority.

There have been partisan skirmishes where the Supreme Court has intervened before, such as when the House of Representatives ejected New York Representative Adam Clayton Powell Jr. in 1967 or when Congress tried to alter veto powers under the Constitution. In one unanimous opinion, the Court concluded that while "each house" of Congress does get to make its own rules, it "may not by its rules ignore constitutional restraints or violate fundamental rights."

What could be more fundamental, after all, than ensuring that the voters' chosen representatives can govern democratically?

This post is drawn from Ari Melber's article, "Fighting the Filibuster," originally published by Reuters (All Rights Reserved). He tweets news and opinion on Twitter.