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The Senate can keep its filibuster, for now, a court says

The filibuster survives a court test

In a little-noticed decision, a federal appeals court has rejected a lawsuit by Common Cause and some members of the House of Representatives challenging the time-honored (some would say time-dishonored) practice of the Senate filibuster.

What? You thought the filibuster already had been abolished? Not completely. Last year, Senate Democrats triggered the so-called nuclear option to end the 60-vote requirement for action on presidential nominations to the executive branch and most federal courts. But the filibuster survives, at least for now, for legislation and Supreme Court nominations.

(There are two explanations for why Senate Majority Leader Harry Reid (D-Nev.) didn’t abolish the filibuster for Supreme Court nominations. The first is that he believes that greater consensus is appropriate for a justice on the nation’s highest and unreviewable bench. The second, more accurate explanation is that Democrats want to be able to filibuster a Republican Supreme Court nominee if the other party captures both the Senate and the White House.)

In their lawsuit, Common Cause and the members of Congress alleged that the filibuster violated the constitutional principle of majority rule. The U.S. Court of Appeals for the District of Columbia Circuit ruled that the suit couldn’t go forward because the injury alleged — the frustration of legislation by the 60-vote requirement — wasn’t attributable to the defendants cited in the suit: Vice President Joe Biden “in his capacity as president of the Senate; the secretary of the Senate; the parliamentarian of the Senate; and the sergeant-at-arms of the Senate.”

Rather, the court said, the harm was caused by caused by the Senate and its members. And guess what? Under the Constitution’s speech and debate clause, senators and representatives “shall not be questioned in any other place” about legislative business. Next case!

If what’s left of the filibuster is to be dismantled — and it should be — it will be up to the Senate. Back to you, Harry.

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