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Media Alerts - Common Cause v. Biden
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April 15, 2014
  Common Cause v. Biden
Headline: D.C. Circuit finds Common Cause had no standing to sue Senate officials over the constitutionality of the filibuster rule.

Area of Law: Standing, Speech and Debate Clause

Issue Presented:
Whether beneficiaries of a bill that passed the House of Representatives but were filibustered in the Senate have standing to challenge the constitutionality of the Senate's cloture rule.

Brief Summary: In the 110th Congress, two bills, the DREAM bill and the DISCLOSE bill, passed the House of Representatives. Although both bills garnered the support of a majority of Senators, neither measure achieved the sixty votes necessary to cut off debate and bring them to a vote. Common Cause and other supporters of the bills brought suit against the Vice President, 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, claiming that the cloture rule, which requires a super-majority to force a vote in a bill, blocks legislation that has the support of a majority of both houses of Congress, violating the Constitutional principle of majority rule. They asked the court to strike the sixty vote requirement from the cloture rule and replace it with a majority-rule requirement. The United States District Court for the District of Columbia dismissed the complaint for lack of jurisdiction. It held that, because there was no guarantee the bills would have passed in the Senate, even if a vote had occurred, none of the plaintiffs had suffered a cognizable injury from the failure of the bills. The court also found that the suit presented a nonjusticiable political question.

The United States Court of Appeals for the District of Columbia Circuit affirmed but on different grounds than the district court, focusing instead on "whom Common Cause chose to sue - or, more to the point, not to sue." Common Cause was barred from suing Senators and their staff by the Speech and Debate Clause, which confers immunity for any act that falls "within the sphere of legitimate legislative activity." Appellants relied on Powell v. McCormack, for the proposition that they could sue Senate officers for implementing the cloture rule even if they could not sue the Senators who created it. However, the D.C. Circuit distinguished Powell, concluding that the causal connection between Powell's alleged injuries and the actions of officers of the House of Representatives, who had refused to pay his salary and threatened to bar him from the building, was "obvious" but finding no such connection here. Determining that Appellants' injury was "caused not by any of the defendants, but by an 'absent third party' - the Senate itself," the court concluded that it did not have jurisdiction to decide the case.

For the full text of this opinion, please visit

Panel: Henderson, Williams, and Randolph

Argument Date: January 21, 2014

Date of Issued Opinion: April 15, 2014

Docket Number: 12-5412

Decided: Affirmed

Case Alert Author: Joseph T. Maher, Jr.

Counsel (if known): Emmet J. Bondurant II and Stephen Spaulding for appellants. Thomas E. Caballero, Morgan J. Frankel, Patricia Mack Bryan, and Grant R. Vinik for appellees.

Author of Opinion: Randolph

Case Alert Circuit Supervisor: Elizabeth Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 04/15/2014 02:28 PM     DC Circuit  

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