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Common Cause v. Biden

United States District Court, District of Columbia

December 21, 2012

COMMON CAUSE, et al., Plaintiffs,
Joseph R. BIDEN, Jr., in his official capacity as President of the United States Senate, et al., Defendants.

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Stephen Spaulding, Common Cause, Washington, DC, Emmet J. Bondurant, Bondurant, Mixson & Elmore, Atlanta, GA, for Plaintiffs.

Morgan John Frankel, Grant Raymond Vinik, Patricia M. Bryan, Thomas Edward Caballero, Office of Senate Legal Counsel, United States Senate, Washington, DC, for Defendants.


EMMET G. SULLIVAN, District Judge.

Plaintiffs in this action are a non-profit organization devoted to government accountability and election reform, four members of the United States House of Representatives, and three individuals who allege they would have benefited from the DREAM Act. They bring this suit against representatives of the United States Senate seeking a declaratory judgment that Rule XXII (the " Cloture Rule" or the " Filibuster Rule" )— which requires a vote of sixty senators to proceed with or close debate on bills or presidential nominations and a two-thirds vote to proceed with or close debate on proposed amendments to the Senate Rules— is unconstitutional because it is " inconsistent with the principle of majority rule." In the alternative, Plaintiffs challenge Senate Rule V, which provides that the Senate's rules continue from one Congress to the next, unless amended. Pending before the Court is Defendants' Motion to Dismiss pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. Defendants make three arguments: (1) Plaintiffs lack standing to bring this suit; (2) the Speech or Debate Clause bars this suit; and (3) the Complaint presents a non-justiciable political question.

The Court acknowledges at the outset that the Filibuster Rule is an important and controversial issue. As Plaintiffs allege, 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 for two independent reasons. First, the Court cannot find that any of the Plaintiffs have standing to sue.

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Standing is the bedrock requirement of an Article III court's jurisdiction to resolve only those cases that present live controversies. While the House Members have presented a unique posture, the Court is not persuaded that their alleged injury— vote nullification— falls into a narrow exception enunciated by the Supreme Court in Raines v. Byrd. And none of the other Plaintiffs have demonstrated that this Court can do anything to remedy the alleged harm they have suffered: the inability to take advantage of the opportunity to benefit from proposed legislation that was never debated, let alone enacted. The Court is even less persuaded that the Plaintiffs possess a " procedural" right, grounded in the text of the Constitution, that entitles them to the majority enactment of legislation. Second, and no less important, the Court is firmly convinced that to intrude into this area would offend the separation of powers on which the Constitution rests. Nowhere does the Constitution contain express requirements regarding the proper length of, or method for, the Senate to debate proposed legislation. Article I reserves to each House the power to determine the rules of its proceedings. And absent a rule's violation of an express constraint in the Constitution or an individual's fundamental rights, the internal proceedings of the Legislative Branch are beyond the jurisdiction of this Court.

Accordingly, upon consideration of Defendants' Motion to Dismiss, the response and reply thereto, the supplemental briefs filed by the parties, the arguments made at the hearing held on December 10, 2012, the relevant law, the entire record in this case, and for the reasons stated below, the Court will GRANT Defendants' Motion to Dismiss.


A. History of the Cloture Rule

The Complaint sets forth the following background regarding the history of the Cloture Rule. At the time the Constitution was adopted, there was no recognized " right" on the part of members of legislative or other parliamentary bodies to engage in unlimited debate over the objections of the majority ( i.e., to " filibuster" ). Compl. ¶ 20. Under the established rules of parliamentary procedure that prevailed both in England and in the Continental Congress prior to the adoption of the Constitution, the majority had the power to end a debate and bring a measure to an immediate vote at any time over the objection of the minority by adopting a " motion for the previous question." Id. ¶ 21. The Articles of Confederation were an exception, however; under the Articles of Confederation, voting was by state, and the " United States in Congress" was unable to take action without a supermajority vote of nine of the thirteen states. Id. ¶ 24. Because the Framers of the Constitution had observed first-hand the paralysis caused by the supermajority voting requirement in the Articles of Confederation, the Framers refused to require more than a majority, either as a condition of a quorum or for the passage of legislation under the proposed new constitution. Id. ¶ 25. Only six exceptions to the principle of majority rule were expressly enumerated in the Constitution.[1]

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The first rules adopted by the Senate in 1789 adopted the previous question motion. Id. ¶ 37. In 1806, however, the previous question motion was eliminated from the rules of the Senate, apparently at the urging of Vice President Aaron Burr, who, in his farewell address before the Senate in 1805, suggested that the previous question motion was unnecessary because it had been invoked only once during the four years that he had presided over the Senate. Id. ¶ 38. From 1806 until 1917, the Senate had no rule that allowed the majority to limit debate or terminate a filibuster. Despite the absence of a rule for limiting debate, filibusters were relatively rare during this period and occurred at an average rate of one every three years between 1840 and 1917. Id. ¶ 40. In 1917, however, after a small minority of senators filibustered a bill authorizing President Wilson to arm American merchant ships, leading to public outrage, the Senate adopted the predecessor to the current Cloture Rule. Id. ¶¶ 41-43. The 1917 rule required a two-thirds vote of the Senate to end debate. Id. ¶ 45. Filibusters remained relatively rare from 1917 to 1970.

The Cloture Rule was not amended again until 1975, when the Senate agreed to a compromise amendment to Rule XXII. The amendment changed the number of votes required for cloture from two-thirds of senators present and voting to three-fifths of the Senate, not merely those present and voting ( i.e., sixty votes). In addition, the amendment provided that cloture on motions to amend the Senate's rules would continue to require a vote of two-thirds of senators present and voting. The number of votes required to invoke cloture has not changed since 1975. See Defs.' Mem. of P. & A. in Supp. of Mot. to Dismiss (" Defs.' Mem." ) at 8. Rule XXII of the Standing Rules of the Senate provides in pertinent part as follows:

[A]t any time a motion signed by sixteen Senators, to bring to a close the debate upon any measure ... is presented to the Senate, the Presiding Officer, or clerk at the direction of the Presiding Officer, shall at once state the motion to the Senate, and ... he shall lay the motion before the Senate and direct that the clerk call the roll, and upon the ascertainment that a quorum is present, the Presiding Officer shall, without debate, submit to the Senate by a yea-and-nay vote the question:
" Is the sense of the Senate that the debate shall be brought to a close?" And if that question shall be decided in the affirmative by three-fifths of the Senators duly chosen and sworn— except on a measure or motion to amend the Senate rules, in which case the necessary affirmative vote shall be two-thirds of the Senators present and voting— then said measure ... shall be the unfinished business to the exclusion of the all other business until disposed of.

Standing Rules of the Senate Rule XXII § 2; see also Compl. ¶ 16. Rule V states that the " rules of the Senate shall continue from one Congress to the next Congress unless they are changed as provided in these rules." Standing Rules of the Senate Rule V § 2.

The number of actual or threatened filibusters has increased dramatically since 1970, and now dominates the business of the Senate. Compl. ¶ 47. In 2009, there were a record sixty-seven filibusters in the first half of the 111th Congress— double the number of filibusters that occurred in

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the entire twenty-year period between 1950 and 1969. By the time the 111th Congress adjourned in December 2010, the number of filibusters had swelled to 137 for the entire two-year term of the 111th Congress. Id. ¶ 50. During the 111th Congress, over four hundred bills that had been passed by the House of Representatives— many with broad bipartisan support— died in the Senate without ever having been debated or voted on because of the inability to obtain the sixty votes required by Rule XXII. Id. ¶ 52.

B. Allegations in the Complaint

The Complaint is brought by three groups of Plaintiffs. Plaintiff Common Cause is a non-profit corporation formed " to serve as a grass roots ‘ citizens lobby’ to promote the adoption of campaign finance, disclosure and other election reform legislation by Congress and by state and local governments." Id. ¶ 9(A). Plaintiffs John Lewis, Michael Michaud, Henry (" Hank" ) Johnson, and Keith Ellison (the " House Member Plaintiffs" ), are members of the House of Representatives representing Georgia, Maine, Georgia, and Minnesota, respectively. Id. 19(B). Finally, Plaintiffs Erika Andiola, Celso Mireles, and Caesar Vargas (the " DREAM Act Plaintiffs" ), are three U.S. residents who were born in Mexico, brought to the United States by their families when they were children, and subsequently graduated from college and obtained employment. Id. 19(C). Each group of Plaintiffs alleges that it has suffered injury due to the Cloture Rule preventing a majority in the Senate from closing debate on and passing legislation that would have benefited the Plaintiffs— specifically, the DISCLOSE Act, a campaign finance reform bill, and the DREAM Act, an immigration reform bill. See id. 119(D)-(E).

Plaintiffs allege that the Cloture Rule " replaces majority rule with rule by the minority by requiring the affirmative votes of 60 senators on a motion for cloture before the Senate is allowed to even debate or vote on" measures before it. Id. 12. According to Plaintiffs, " [b]oth political parties have used Rule XXII when they were in the minority in the Senate to prevent legislation and appointments proposed by the opposing party from being debated or voted on by the Senate." Id. 14. Plaintiffs further assert that Rule XXII has primarily been used " not to protect the right of the minority to debate the merits of a bill or the fitness of a presidential nominee on the floor of the Senate ..., but to suppress and prevent the majority from debating the merits of bills or presidential appointments opposed by the minority." Id. ¶ 7 (emphasis in original). " Actual or threatened filibusters (or objections to the commencement of debate which are the functional equivalent of a filibuster) have become so common that it is now virtually impossible as a practical matter for the majority in the Senate to pass a significant piece of legislation or to confirm many presidential nominees without the 60 votes required to invoke cloture under Rule XXII." Id. ¶ 18. Plaintiffs allege that because invoking cloture is " time consuming and cumbersome," the mere threat of a filibuster is sufficient to forestall consideration of a measure. Id. ¶ 15. Furthermore, because Senate Rule V provides that Senate rules continue from one Congress to the next, and because invoking cloture to close debate on any resolution to amend Senate rules requires the affirmative vote of two-thirds of Senators present and voting, Plaintiffs assert that " the combination of Rule V and Rule XXII has made it virtually impossible for the majority in the Senate to amend the rules of the Senate to prevent the minority in

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the Senate from obstructing the business of the Senate by filibustering." Id. ¶ 19.

The Complaint asserts that the Filibuster Rule is invalid because it conflicts with the following constitutional provisions and/or principles: the Senate's Rulemaking Power, U.S. Const. art. I, § 5, cl. 2, Compl. ¶¶ 57-59; the Quorum Clause, U.S. Const. art. 1, § 5, id. ¶ 60(a); the Presentment Clause, U.S. Const. art. I, § 7, id. ¶ 60(b); " the exclusive list of exceptions" to majority rule, id. ¶ 60(c); the power of the Vice President to vote when the Senate is " equally divided," U.S. Const. art. I, § 3, cl. 4, id. ¶ 60(d); the Advice and Consent Clause, U.S. Const. art. II, § 2, cl. 2, id. ¶ 60(e); the " equal representation of each state in the Senate," id. ¶ 60(f); " the finely wrought and exhaustively considered balance of the Great Compromise" regarding representation of states in Congress, id. ¶¶ 62-70 (internal quotation marks and citation omitted); the power of the Senate " to adopt or amend its rules by majority vote," id. ¶ 74; and " the fundamental constitutional principle that prohibits one Congress (or one house of Congress) from binding its successors," id. ¶ 75. Plaintiffs seek the entry of a declaratory judgment, pursuant to 28 U.S.C. § 2201, declaring the supermajority vote portions of Rule XXII unconstitutional. Plaintiffs request that the Court sever the unconstitutional portions of that Rule and declare that a vote of a simple majority is all that is required to invoke cloture. Secondarily, and in the alternative, Plaintiffs seek the entry of a judgment declaring Rule V unconstitutional to the extent that it prohibits the Senate from amending its rules by majority vote.

C. Procedural Background

On May 14, 2012, Plaintiffs filed their Complaint against Vice President Joseph R. Biden, Jr., in his official capacity as President of the Senate, Nancy Erickson, in her official capacity as Secretary of the Senate, Elizabeth MacDonough, in her official capacity as Parliamentarian of the Senate, and Terrance Gainer, in his official capacity as Sergeant-at-Arms of the Senate. Defendants filed a Motion to Dismiss on July 20, 2012, and the Court heard argument on the motion on December 10, 2012. The motion is ripe for determination by the Court.


Federal district courts are courts of limited jurisdiction, Kokkonen v. Guardian Life Ins. Co.,511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994), and a Rule 12(b)(1) motion for dismissal presents a threshold challenge to a court's jurisdiction, Haase v. Sessions, 835 F.2d 902, 906 (D.C.Cir.1987). On a motion to dismiss for lack of subject matter jurisdiction, the plaintiff bears the burden of establishing that the Court has jurisdiction. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). In evaluating such a motion, the Court must " accept[ ] all of the factual allegations in [the] complaint as true," Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1250 (D.C.Cir.2005) (citation omitted), but the Court " is not required ... to accept inferences unsupported by the facts alleged or legal conclusions that are cast as factual allegations," Cartwright Int'l Van Lines, Inc. v. Doan, 525 ...

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