RIP Filibuster, Jan. 2011? Don’t Count On It

It stands to reason that the complexities of the Senate’s procedures coupled with anger over the stalling of the Health Care Reform bill would lead to some very creative ideas about how to kill the filibuster, and with it, the Senate’s ridiculous supermajority requirement. One argument I have heard many times is that 51 Senators (or 50 plus the Vice President) can basically do anything they want. Now, there is an article by Ian Millhiser in the American Prospect arguing basically that fact:

What the Senate is not allowed to do, however, is tell future senators what rules must apply to their proceedings. Because Reichelderfer prohibits a previous Congress from tying the hands of a future Congress, the rules governing Senate procedure in 2010 cannot bind a newly elected Senate in 2011. The old Senate rules essentially cease to exist until the new Senate ratifies them, so a determined bloc of 51 senators could eliminate the filibuster altogether by demanding a rules change at the beginning of a new session. Once the new Senate begins to operate under the old rules, however, this can function as a ratification of the old rules — essentially locking those rules in place for another two years.

Millhiser is basically arguing that two Supreme Court decisions, Newton v. Commissioners in 1879 and Reichelderfer v. Quinn in 1932, make it possible for each new Senate to eliminate the filibuster, since the new Senate (the next one beginning in January 2011) isn’t beholden to any Senate procedures from previous Senates.

Practically, from the Democrats’ point of view, I do how this helps anything. First of all, Millhiser does not mention the procedures with which each new Senate, after swearing in any new members, ratifies the new rules that the body functions under. If the Senate begins to proceed without changing anything, then that acts as a ratification, but how procedurally difficult is it for 51 Senators to push through a new set of rules when a functioning Senate (oh my goodness what an oxymoron) is all that it takes to not eliminate the filibuster?

Secondly, I can’t imagine the Democrats having the political will or ability to do something like this next January. They are almost certain to lose seats in November, and due to the specific seats that are up for grabs this year the seats the Dems are most likely to lose aren’t the most conservative Democrats (for a good roundup of next November, check out Nate Silver’s analysis. His most recent update is here). Thus, while there may be 51 or 50 Senators in this Congress willing to eliminate the filibuster, the median Senator next January is most likely going to be too far to the right to want to mess with Senate procedures in a way that would benefit the Democrats.

Finally, I can only imagine that this sort of uprising, if it took place, would need the approval and cooperation of Majority Leader Harry Reid, who I cannot imagine approving of something like this. It tends to be the longest tenured Senators who are the most likely to defend arcane Senate procedures like the filibuster, and I doubt Reid is any different.

Basically, liberals have been frustrated by uniform Republican opposition and the super-majority requirement since President Obama took office, and this is the first I have heard of this proposal. It is a very interesting idea, but I can’t imagine that it is anything more than a very intriguing shot in the dark.