Democratic U.S. Rep. Keith Ellison, of Minnesota's 5th Congressional District, is among those asking a federal judge to end the Senate filibuster.
The filibuster, Ellison says, has harmed democracy and prevented the passage of the Dream Act and other legislation.
"The fact is that the filibuster gives one senator more power than the founders and the Constitution ever intended, and it's abused repeatedly," Ellison said during an interview Wednesday with MPR's Tom Crann.
A federal judge heard arguments this week in a lawsuit challenging the use of the filibuster in the U.S. Senate. The suit, filed by the nonpartisan government accountability group Common Cause, argues that use of the filibuster has become inconsistent with the principle of majority rule.
In a filibuster, a senator, once granted permission to speak by the presiding officer, may continue to speak indefinitely in an effort to delay or prevent a final vote on the bill. To halt the filibuster, the Senate must pass a "cloture" resolution by a three-fifths majority, or 60 votes.
Filibusters are not allowed in the House of Representatives because House rules limit the time allowed for debate on bills.
Ellison is one of four Democratic House members challenging the Senate rule in the suit. Federal courts have declined to hear similar suits in the past.
An edited transcript of MPR's interview with Ellison about the suit and negotiations to avert the "fiscal cliff" is below.
Tom Crann: Why sue the Senate filibuster rule in federal court, especially (given that) you're a House member?
Rep. Keith Ellison: Because the filibuster rule has been used to nullify House votes when House bills are subject to votes. We can pass them by simply having a majority. The Constitution specifies when a super majority is necessary -- to override a veto, to ratify a treaty, but not simply to pass legislation as the filibuster rule has been used.
So in my view, it's not contemplated in the Constitution. It's simply a matter of Senate rule, and it has undermined critical pieces of legislation like the Dream Act, like the Disclose Act, which would make our elections more transparent. So I joined the suit.
Crann: A lot of us think back to high school government or civics class, the idea of the separation of powers and the branches of government here. The U.S. Senate has the authority under the Constitution to set its own rules. Do you expect that they're going to do away with this?
Ellison: I wish they would do away with it on their own, but I think if courts find that it frustrates the process of democracy in a way that was not contemplated by the Constitution, I think the courts may strike it down.
The fact is that the filibuster gives one senator more power than the founders and the Constitution ever intended, and it's abused repeatedly. I mean they don't even have to go down to the Senate floor to actually filibuster, you know, a la "Mr. Smith Goes to Washington." They just say they're going to, and that's good enough to just hold up all kinds of things that are really important to the American people.
Crann: One part of the thinking behind it is that it protects the minority in the Senate. What do you make of that?
Ellison: You have a bicameral legislature to make sure things go through more process ... The president has a veto. There are all types of checks and balances, and so to have this thing, it's not a check and balance. It just frustrates the will of the elected representatives, and so I think it's something that we really don't need ...
I think it's proper and right for the courts to decide what role a filibuster really should have. Now it's also true that the Senate can make the court ruling moot by simply acting to correct it in a way that comports with the Constitution. So they literally can act in a way so that a court will say, 'Well, we have nothing left to decide because the Senate has already taken care of the business on its own.'
Crann: The specifics of this case involve the Dream Act. Three undocumented immigrants are also plaintiffs here in the suit. Is this suit about that case, or is this about the filibuster, as you see it, in general?
Ellison: It's about the filibuster, but the Dream Act is the occasion. But we could also put in there the Disclose Act, a bill that passed in the House and would've passed by a majority in the Senate but didn't because of the filibuster rule, neither one of them. So, yes, the Dream Act happens to be the occasion that we're meeting on in the court, but it's about a bigger issue, which is the filibuster.
The original Senate had no such thing as a filibuster, and it's not in the Constitution, as I already pointed out. It's a quirk of the rules, and in the House, we have to reapprove our rules every session. In the Senate, they just sort of self-perpetuate.
Crann: I want to move on to the fiscal negotiations in Washington. This morning from [Republican U.S. House] Speaker [John] Boehner, not a lot of optimism. So right now, what's your assessment of where those negotiations are?
Ellison: My assessment is that everybody knows that the American people expect us to work together to try to get some sort of agreement done. Time is moving forward and so we don't have a lot of it to waste, and yet, you know, it's still very unclear to me, probably unclear to even the people directly involved in the negotiation, what is going to happen.
At this point, the White House is negotiating with Boehner ... and most members of Congress, I mean quite candidly, are not a party to the negotiations. We're waiting on our leadership to talk, to tell us what a deal is going to be placed before the Congress. And so we're in kind of a waiting, holding period.
For me to offer a prediction at this point would be highly speculative. The big question is will we go past the deadlines without a deal or will we get one beforehand. It seems to me that we always seem to work out a deal in the 11th hour. It may be something that people don't really like, but we always seem to get a deal.
So I'm expecting that we'll get one, but if I were a betting person, I wouldn't lay any money down on it.
(Interview edited and transcribed by MPR reporter Madeleine Baran)