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Case Will Test Constitutionality Of The Filibuster


And if you're just joining us, this is WEEKENDS on ALL THINGS CONSIDERED from NPR News. I'm Guy Raz. There was a time when the Senate would, every once in a while, use a special tool to protect the rights of the minority party.


UNIDENTIFIED MAN: Half of official Washington is here to see democracy's finest show, the filibuster, the right to talk your head off, the American privilege of free speech in its most dramatic form.

RAZ: In 1939, Jimmy Stewart came to represent the nobility of the filibuster in the film "Mr. Smith Goes to Washington."


JIMMY STEWART: (as Jefferson Smith) And I'll tell you one thing, that wild horses aren't going to drag me off this floor until those people have heard everything I've got to say, even if it takes all winter.

RAZ: Most of us think filibuster, they think of a senator standing on the floor of the Senate speaking and not sitting down in order to block a piece of legislation. That doesn't happen anymore?

BOB EDGAR: That doesn't happen anymore. And actually, the Democrats joined the Republicans in doing away with the speaking or talking filibuster. And it ended when the senators didn't want to sit around. The majority senators have to sit around and wait for the person to stop talking.

RAZ: That's Bob Edgar. He's the president of the nonpartisan advocacy group Common Cause. Since the talking filibuster went away, senators have used it over and over again, not to lengthen debate but to cut it off entirely, because it takes a supermajority - 60 votes - to end a filibuster, and it's almost insurmountable. And so Common Cause is putting the filibuster on trial quite literally. They've submitted a challenge in a U.S. district court that the practice, as it's used today, is unconstitutional.

EDGAR: Common Cause believes that democracy should be based on majority rule. For example, Citizens United decision came down by the Supreme Court on a very narrow 5-4 decision. But eight of the nine justices said that the House and Senate should pass full disclosure legislation. The House passed disclosure legislation. It came for a vote in the Senate. It got 59 votes in the United States Senate and failed because it didn't get the 60 vote needed to overcome 41 senators who wanted to block debate and any conversation about full disclosure.

RAZ: OK. You argue - Common Cause argues, Bob Edgar, that the filibuster - which is not in the Constitution, this is a Senate procedural rule - that it is unconstitutional, how can a rule, a Senate rule be unconstitutional? I mean, how can you make that case?

EDGAR: The Constitution says that the House and Senate can make its own rules. But there are specific instances in history, which we've researched and put in our federal lawsuit, that indicated that the courts have stepped in when the House and the United States Senate have exceeded their constitutional authority. The Founding Fathers were pretty smart. They put six instances in the Constitution for a supermajority vote. You can't impeach the president, you can't have a trade bill, you can't amend the Constitution without a supermajority vote. If the senators want to have a supermajority vote, put it in the Constitution. Go through that process as the Founding Fathers did.

RAZ: But one can argue that, look, this is an opportunity for a minority party to protect its interests and the interest of its constituents.

EDGAR: Well, I'm very much for, and Common Cause is for, the minority having its rights. But the minority cannot terrorize the majority. There are several senators, Senator Tom Harkin, for example, who has a plan. He says: Let's keep the 60-vote rule. But three days later, make it 57, a couple of days later, make it 55 or 54, and over a two- or three-week period, get down to majority rule. That would give the minority two weeks to debate the issue. It would give them the opportunity to take the floor and make their arguments, and then the senators could cast a vote.

There are ways that you can repair the Senate and put rules in place that provide extended debate without digging into the basic premise of majority rule.

RAZ: That's Bob Edgar. He is the president and CEO of Common Cause. The group has filed a motion in the U.S. district court here in Washington, D.C., to challenge the constitutionality of the filibuster in the U.S. Senate. Bob Edgar, thanks.

EDGAR: It's great to be with you. Transcript provided by NPR, Copyright NPR.