Emmet Bondurant said, "When Moses came down from the mountain, the 11th Commandment was not that there was a right of unlimited debate in the Senate."
Zachary D. Porter
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Atlanta attorney Emmet Bondurant says the U.S. Senate's filibuster rule is an accident of history that is not embodied in the U.S. Constitution and should be struck down.
The rule, which is 95 years old, violates the Constitution because it has created "a tyranny of the minority" in defiance of the intent of the document's framers, he said.
Bondurant will fight to keep that argument alive today before a federal judge in Washington against Senate lawyers who say the judiciary cannot tell the legislative branch how to run its affairs.
Judge Emmet Sullivan of the U.S. District Court for the District of Columbia is hearing a motion to dismiss Bondurant's case made by the Office of Senate Legal Counsel. The Senate lawyers were authorized to challenge the suit in June in a resolution co-sponsored by Senate Majority Leader Harry Reid, D-Nevada, and Senate Minority Leader Mitch McConnell, R-Ky., that passed the Senate on a unanimous voice vote.
Bondurant and Washington attorney Stephen Spaulding, staff counsel for plaintiff Common Cause, filed the suit in May on behalf of the national nonprofit organization that works for accountability and openness in government. Four members of the U.S. House of Representatives, including Democrats John Lewis and Hank Johnson of Georgia, are also plaintiffs. The plaintiffs include several undocumented young professionals living in the United States who were born overseas and, according to the suit, have been denied a path to U.S. citizenship by filibusters of the DREAM (Development, Relief, and Education for Alien Minors) Act.
Bondurant has been contemplating a challenge to the filibuster for more than two years. A member of the board of Common Cause, the Atlanta lawyer testified in April 2010 before the U.S. Senate Committee on Rules and Administration on the history of the filibuster.
Supermajority rules
Since 1917, no legislative matter debated by the Senate has been put to a vote without either the unanimous consent of the Senate as a whole or the passage of a motion ending debate—known as the filibuster or cloture rule—that currently requires the votes of three-fifths of the Senate to pass.
Securing a supermajority to bring a bill to a vote is problematic. But Senate rules also prohibit any bill, resolution or presidential nomination from being debated without the Senate's unanimous consent or passage of a motion to proceed, according to the Common Cause complaint.
The motion to proceed is itself subject to debate and the filibuster rule with what is now a 60-vote mandate, according to the complaint. The result, it says, is that absent unanimous consent, 60 votes—rather than a simple majority of 51—also are needed to even open debate.
The logjam created by any 41 senators who want to forestall a vote "conflicts with the fundamental principle of majority rule embedded in the Constitution and on which the Constitution was founded," the Common Cause suit asserts.
