The filibuster, permitted by Senate rules since 1806, has been used by members of both parties since 1837. But last year Common Cause and four Democrats in the House of Representatives filed a lawsuit asking a federal judge to declare the maneuver, which requires 60 votes to end debate on legislation, unconstitutional.
The suit is one salvo in an ongoing war over the filibuster, which usually pits the majority against the rule. Senate Republicans threatened to undercut the tactic when they controlled the chamber in 2003. Today’s Senate Democrats likewise have toyed with neutering the filibuster.
The Common Cause suit argued that the filibuster is “inconsistent with majority rule.” It complained that “since the election of President Obama in 2008, the Republican minority in the Senate has objected to virtually every significant piece of legislation proposed by the Obama administration and more presidential nominations than in any comparable period of history, all as a part of a strategy to make the Democratic Majority appear to be ineffective, and to make President Obama a one-term president.” The House members argued that their own votes were nullified by Senate inaction.
U.S. District Judge Emmet G. Sullivan tossed out the lawsuit in December, saying the plaintiffs had no standing to use courts to change Senate rules. “The Court is firmly convinced that to intrude into this area would offend the separation of powers on which the Constitution rests,” Sullivan wrote in his opinion.