Malo periculosam, libertatem quam quietam servitutem.



May 2012

Common Cause Was For Filibusters Before They Were Against Them

Written by , Posted in The Courts, Criminal Justice & Tort, Waste & Government Reform

Common Cause, which is part of the left’s organized campaign to silence ALEC, recently filed a silly lawsuit seeking to have the Senate filibuster declared unconstitutional:

For years, critics of the filibuster have failed to convince senators to change the procedural delaying tactic. Now they’re taking their case to the courts.

The nonpartisan nonprofit Common Cause sued the U.S. Senate on Monday, challenging the constitutionality of the filibuster rules that require routine 60-vote thresholds for bills and nominations that often have majority support. Several House Democrats and three undocumented students who would be aided by the so-called DREAM Act also joined the suit.

Constitutionally the suit is easy to dismiss. Congress has the authority to set its own rules, and the Court neither has the authority nor the desire to say otherwise. There’s also the issue of standing, which these three undocumented illegal immigrant students don’t have just because they would have theoretically benefited from some bill that was not passed. That is just a mind boggling argument all the way around.

Common Cause would be on slightly stronger ground if they challenged the filibuster’s use to oppose appointments, rather than legislation, where the Senate has a constitutional duty to advise and consent. But even then the argument is flimsy, and the court would likely not intervene given the wide discretion it rightfully gives Congress on managing its own affairs (which contrasts with the unfortunately wide discretion it gives Congressional legislation, which should instead be closely examined for Constitutional fidelity).

But such debate assumes that Common Cause can be taken at face value as a good faith participant in the political process. The facts suggest, however, that they are merely partisan hacks staking out a position of convenience because they disagree with the ideology of the Senate’s current minority. To wit, consider Common Cause’s position when Senate roles were reversed (Hat-tip: Outside the Beltway):

In 2005, Common Cause vigorously defended the filibuster when some Republicans proposed invoking the “nuclear option” to end the filibuster of judicial nominees.  From a 2005 press release:

Common Cause strongly opposes any effort by Senate leaders to outlaw filibusters of judicial nominees to silence a vigorous debate about the qualifications of these nominees, short-circuiting the Senate’s historic role in the nomination approval process.

“The filibuster shouldn’t be jettisoned simply because it’s inconvenient to the majority party’s goals,” said Common Cause President Chellie Pingree. “That’s abuse of power.”