United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 21, 2014 Decided April 15, 2014
No. 12-5412
COMMON CAUSE, ON ITS OWN BEHALF AND BEHALF OF ITS
MEMBERS, ET AL.,
APPELLANTS
v.
JOSEPH R. BIDEN, JR., IN HIS OFFICIAL CAPACITY AS
PRESIDENT OF THE UNITED STATES SENATE, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:12-cv-00775)
Emmet J. Bondurant II argued the cause for appellants.
With him on the briefs was Stephen Spaulding.
Thomas E. Caballero, Assistant Senate Legal Counsel,
Office of Senate Legal Counsel, argued the cause for appellees.
With him on the brief were Morgan J. Frankel, Senate Legal
Counsel, Patricia Mack Bryan, Deputy Senate Legal Counsel,
and Grant R. Vinik, Assistant Senate Legal Counsel.
Before: HENDERSON, Circuit Judge, and WILLIAMS and
RANDOLPH, Senior Circuit Judges.
2
Opinion for the Court filed by Senior Circuit Judge
RANDOLPH.
RANDOLPH, Senior Circuit Judge: A bill that would have
become the “DISCLOSE” Act and a bill that would have
become the “DREAM” Act never became law. Both bills passed
the House of Representatives during the 111th Congress and
then stalled in the Senate. See generally H.R. 5281, 111th Cong.
(2d Sess., 2010) (DREAM bill); H.R. 5175, 111th Cong. (2d
Sess., 2010) (DISCLOSE bill). The Senate never put either to a
vote. Both fell to a filibuster. According to the plaintiffs, the
Senate rule governing filibusters is unconstitutional.
The mechanics of a filibuster are these. Senators are entitled
to debate any bill indefinitely unless the Senate passes a motion,
known as a “cloture” motion, to end debate and proceed to a
vote on the bill. See WALTER J. OLESZEK, CONG. RESEARCH
SERV., CLOTURE: ITS EFFECT ON SENATE PROCEEDINGS (2008).
The Senate typically operates by majority rule. But under Senate
Rule XXII, invoking cloture requires a three-fifths majority of
all Senators—sixty votes. See STANDING RULES OF THE SENATE,
S. DOC. 113-18, R. XXII § 2, at 15-17 (2013). In other words,
even when a majority of Senators support a bill, a minority of
Senators can put off a vote indefinitely.
Historically, a Senator determined to prevent a vote on a
measure he opposed would stand and speak for hours on end.
Unless he yielded the floor, the Senate could not move forward.
Modern filibusters are less physically demanding. Due to a
change in the Senate’s legislative procedure, filibustering no
longer requires that a Senator “actually stand before the chamber
speaking.” Tonja Jacobi & Jeff VanDam, The Filibuster and
Reconciliation: The Future of Majoritarian Lawmaking in the
U.S. Senate, 47 U.C. DAVIS L. REV. 261, 277-78 (2013). About
forty years ago, the Senate began to conduct its legislative
3
business on parallel “tracks.” See Josh Chafetz, The
Unconstitutionality of the Filibuster, 43 CONN. L. REV. 1003,
1010 (2011). As a result, the defeat of a cloture motion allows
the Senate to take up other business while the “filibuster”
remains, in a technical sense, ongoing.1 Id.
The DREAM and DISCLOSE bills foundered on this
modern version of the filibuster. The Senate considered cloture
motions on both bills. Although the motions garnered the votes
of a majority of Senators, neither motion achieved the sixty
votes necessary to cut off debate. See 156 CONG. REC. S10,665
(daily ed. Dec. 18, 2010) (defeating cloture, 41-55, on the
House-passed DREAM bill); 156 CONG. REC. S7388 (daily ed.
Sept. 23, 2010) (defeating cloture, 39-59, on the Senate version
of the DISCLOSE bill after the House passed a similar bill).
After the failed cloture votes, the Senate turned to other business.
The plaintiffs in this case are House members who voted for
the DREAM and DISCLOSE bills, individuals who would have
benefitted from the DREAM Act, and an association, Common
Cause, that supported passage of the DISCLOSE Act. We shall
refer to the plaintiffs collectively as Common Cause. They
brought suit in the district court in May 2012 against the Vice
President and three Senate officers. Their complaint alleged that
the effect of Rule XXII is to require sixty votes to get legislation
through the Senate, that the rule prevents the passage of
legislation that has the support of a majority of both houses of
Congress, and that the rule therefore violates the Constitutional
principle of majority rule. They asked the court to strike the
1
Making filibusters easier has made them more frequent. Today
the mere threat of a filibuster may be “enough to convince the
majority leader to devote the Senate’s time to other matters.” RICHARD
S. BETH & VALERIE HEITSHUSEN, CONG. RESEARCH SERV.,
FILIBUSTERS AND CLOTURE IN THE SENATE 23 (2013).
4
sixty-vote requirement from Rule XXII and replace it with a
majority-rule requirement.2
The district court dismissed the complaint for lack of
jurisdiction. Common Cause v. Biden, 909 F. Supp. 2d 9, 17-27
(D.D.C. 2012). The court ruled that none of the plaintiffs—
neither the Congressmen, the individuals, nor the association—
had suffered a cognizable injury. See id. at 18-20 (procedural
injury), 21-22 (substantive injury), 23-26 (vote nullification). It
found that the plaintiffs could not satisfy the causation and
redressability prongs of standing, because there was no
guarantee the bills would have passed but for Rule XXII and
because nothing the court could do would provide effective
relief. Id. at 22-23. The court also determined that the suit
presented a nonjusticiable political question. Id. at 27-31.
We agree with the district court that Common Cause lacks
standing, but for a different reason. Our analysis focuses on
whom Common Cause chose to sue—or, more to the point, not
to sue.
The Senate has the power to “determine the Rules of its
Proceedings.” U.S. CONST. art. I, § 5. Accordingly, it was the
Senate that adopted the cloture rule in 1917, see Catherine Fisk
& Erwin Chemerinsky, The Filibuster, 49 STAN. L. REV. 181,
195 (1997); it was the Senate that amended the rule thereafter,
2
This is not the first constitutional challenge to the filibuster. No
court has reached the merits of the dispute. See, e.g., Judicial Watch,
Inc. v. U.S. Senate, 432 F.3d 359 (D.C. Cir. 2005) (dismissing for lack
of standing); Patterson v. U.S. Senate, No. 13-2311 (N.D. Cal. Mar.
31, 2014) (same); Page v. Shelby, 995 F. Supp. 23 (D.D.C. 1998)
(same). But the filibuster remains a topic of scholarly debate. See, e.g.,
Josh Chafetz & Michael J. Gerhardt, Debate, Is the Filibuster
Constitutional?, 158 U. PA. L. REV. PENNUMBRA 245 (2010).
5
see id. at 209-13; and it was the Senate that failed to invoke
cloture on the DREAM and DISCLOSE bills. If “we assume for
purposes of standing that [Common Cause] will ultimately
receive the relief sought,” Fla. Audubon Soc’y v. Bentsen, 94
F.3d 658, 665 (D.C. Cir. 1996) (en banc), it will be the Senate
that has to conduct its legislative business according to a court-
ordered change in its rule.
Yet the complaint named neither the Senate nor a Senator.3
It is apparent why. See Tr. of Oral Arg. at 11, Common Cause v.
Biden, No. 12-5412 (D.C. Cir. Jan. 21, 2014). The Constitution’s
Speech or Debate Clause provides that “for any Speech or
Debate in either House,” Senators and Representatives “shall not
be questioned in any other Place.” U.S. CONST. art I, § 6. The
Clause confers immunity for any act that falls “within the sphere
of legitimate legislative activity.” Eastland v. U.S. Servicemen’s
3
Citing Montana v. United States, 440 U.S. 147 (1979), Common
Cause argues that no matter who the defendants are, the Senate will be
bound by the result of this lawsuit because it “has undertaken and is
controlling the defense” on behalf of the Senate officers sued. Reply
Br. of Appellants 1 n.2. We seriously doubt whether Montana—a case
about collateral estoppel—supports Common Cause’s position. But
even if it did, the argument has at least two fatal flaws. First, it appears
only in Common Cause’s reply brief and is forfeit. See Newspaper
Ass’n of Am. v. Postal Regulatory Comm’n, 734 F.3d 1208, 1212
(D.C. Cir. 2013) (“[W]e have repeatedly held that we do not consider
arguments raised only in a reply brief.”). Second, there is no reason to
think Common Cause’s ipse dixit—that the Senate is “controlling” the
defense—is true. Senate Resolution 485, cited by Common Cause,
simply authorizes Senate Counsel “to represent” the defendants in this
lawsuit. S. Res. 485, 112th Cong. (2012). We doubt the Senate’s
involvement extended any further. Indeed we doubt Senate Counsel
would have allowed it to. Cf. MODEL RULES OF PROF’L CONDUCT R.
1.8(f) (barring interference with the client-lawyer relationship by a
third party who pays for the representation).
6
Fund, 421 U.S. 491, 503 (1975); see also Kilbourn v. Thompson,
103 U.S. 168, 204 (1880) (the Clause covers all “things
generally done in a session of the House [or Senate] by one of
its members in relation to the business before it”). And it
protects not only elected legislators but their aides, to whom
legislative work is delegated. See Gravel v. United States, 408
U.S. 606, 616-18 (1972). That is, the Clause covers aides when
their conduct “would be a protected legislative act if performed
by the Member himself.” Id. at 618.
When the Clause applies, it is an absolute bar to suit. See
Eastland, 421 U.S. at 503. The right not to be “questioned in any
other Place,” U.S. CONST. art. I, § 6, means that lawmakers are
protected “not only from the consequences of litigation’s results
but also from the burden of defending themselves.” Dombrowski
v. Eastland, 387 U.S. 82, 85 (1967).
What defeated the DREAM and DISCLOSE bills was
legislative action, activity typically considered at the heart of the
Speech or Debate Clause. See, e.g., Doe v. McMillan, 412 U.S.
306, 311-12 (1973). Yet Common Cause, in objecting to the
Senate rule dealing with how Senators “Debate” legislation,
named as defendants only the Vice President, in his capacity as
President of the Senate, see U.S. CONST. art. I, § 3; the Secretary
of the Senate; the Parliamentarian of the Senate; and the
Sergeant-at-Arms of the Senate. Relying on the Supreme
Court’s Speech or Debate Clause decisions, the defendants
mount an argument that the Clause protects them from suit, just
as it does Senators and their aides.4 Whether they are right is
4
For instance, the Constitution designates the Vice President
“President of the Senate.” U.S. CONST. art. I, § 3. As such, he has “no
Vote, unless [the Senate] be equally divided.” Id. When “the Vice
President is fulfilling his duties under Article I to preside over the
Senate and break ties,” he might “be considered part of the legislative
7
unnecessary for us to decide. In suing only non-Senators,
Common Cause is “Hoist with [its] own petar.” WILLIAM
SHAKESPEARE, HAMLET, PRINCE OF DENMARK act 3, sc. 4.
To invoke the jurisdiction of the federal courts, a plaintiff
must allege (1) a concrete injury (2) caused by the defendant
(3) that a favorable judicial decision will redress. See, e.g.,
Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1146-47 (2013).
The causation element requires that a proper defendant be sued.
See 13A CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE &
PROCEDURE § 3531.5 (3d ed. 2013); Simon v. E. Ky. Welfare
Rights Org., 426 U.S. 26, 41-42 (1976). That is, a plaintiff’s
claimed injury must have been caused by “acts of the defendant,
not of some absent third party.” Fla. Audubon Society, 94 F.3d
at 663.
The defendants argue that the Senate, acting through its
voting Members, caused the injuries alleged in the complaint. In
response, Common Cause cites Powell v. McCormack, 395 U.S.
486 (1969), for the proposition that it may challenge the cloture
rule by suing the Senate officers responsible for “implementing”
it, even if it cannot sue the legislators who created it. Reply Br.
of Appellants 15 (emphasis omitted). The analogy to Powell
does not hold up. After the House of Representatives voted to
branch and fall within the ambit of the Speech or Debate Clause.” Roy
E. Brownell II, Vice Presidential Secrecy: A Study in Comparative
Constitutional Privilege and Historical Development, 84 ST. JOHN’S
L. REV. 423, 579 (2010) (footnote omitted); see also Memorandum
from Robert G. Dixon Jr., Ass’t Att’y Gen., Office of Legal Counsel,
U.S. Dep’t of Justice, Re: Amenability of the President, Vice President
and Other Civil Officers to Federal Criminal Prosecution While in
Office, at 36 (Sept. 24, 1973) (“With respect to his responsibility as tie
breaker his immunity . . . should be analogized to that of Members of
Congress under Article I, section 6 . . ..”).
8
exclude Adam Clayton Powell, Powell sued the Speaker of the
House, five Members of the House, the Clerk of the House, the
Sergeant at Arms, and the House Doorkeeper for “refus[ing] to
pay Powell his salary” and “threaten[ing] to deny Powell
admission to the House chamber.” Powell, 395 U.S. at 493. The
Court concluded that Powell could sue the House officers “for
their acts” in implementing the House resolution. Id. at 505.
The causal connection between the named officers and the
specific injuries alleged was obvious.
Here, Common Cause does not identify anything the
defendants did (or refrained from doing) to cause its alleged
injuries. The Senate established the cloture rule and the Senators
voting against cloture doomed the DREAM and DISCLOSE
bills. It is hard to imagine how any of the defendants bore
responsibility for that outcome. Consider, for instance, the
defendant Senate Parliamentarian. If he enforced or executed
Senate rules, then perhaps he could be held to account if the rule
were unconstitutional. See Powell, 395 U.S. at 503-06. But the
Parliamentarian’s role is “purely advisory.” Chafetz, supra, at
1036. Rulings on Senate procedure are the purview of the
Senate’s presiding officer. Id. at 1036-37. And Senate Rule XX
makes the rulings of the presiding officer appealable to the full
chamber.5 See STANDING RULES OF THE SENATE, supra, R. XX.
5
That opportunity to appeal constituted the so-called “nuclear
option” the Senate invoked to modify the cloture rule as applied to
executive branch and lower federal court nominees. See generally
Jeremy W. Peters, In Landmark Vote, Senate Limits Use of the
Filibuster, N.Y. TIMES (Nov. 21, 2013). On November 21, 2013, the
Senate considered, and defeated, a cloture motion on a nomination to
a judgeship on this court. Senator Reid, the majority leader, then
raised a point of order to the Chair, positing that a cloture vote for
such nominations required only a majority. The Chair rejected the
point of order under Rule XXII. Senator Reid then appealed the ruling
to the full Senate, and, by a 52-48 vote, the Chair’s ruling was
9
Thus the Vice President is an improper defendant, too, even
though he may preside over Senate proceedings. In any event,
the Vice President did not preside over the cloture votes on the
DREAM and DISCLOSE bills.
In short, Common Cause’s alleged injury was caused not by
any of the defendants, but by an “absent third party”—the
Senate itself. Fla. Audubon Society, 94 F.3d at 663. We
therefore lack jurisdiction to decide the case.
The judgment of the district court is
Affirmed.
overturned. Thus was set new Senate precedent interpreting Rule XXII
in the context of executive branch and lower federal court
nominations. See 159 CONG. REC. S8417-18 (daily ed. Nov. 21, 2013).