In case you missed it -- and very few of you did, from the looks of things -- Sen. Tom Udall (D-NM) has issued a call for reform of Senate cloture rules both on the floor of the Senate, and in a diary right here at Daily Kos.
You can review the Senator's diary for a run-down on the logic behind what Republicans called the "constitutional option" when they were threatening to invoke it in 2005, during a fight over President George W. Bush's stalled judicial nominations. The facts and the history are correct, and will give you a good general background on where Udall is coming from. And in case you were wondering, one difference between what we knew as the "nuclear option" and Republicans called the "constitutional option" was that the scholarly writing (PDF) which gave Republicans their preferred name for this maneuver was very, very clear about the conditions under which the option was justified under the precedents: at the beginning of a new Congress. Republicans, of course, wanted to ignore most of the "constitutional" part, but keep the "option" anyway.
What is it about the beginning of a new Congress that creates this opportunity? Well, it arises as an answer to one of the obstacles to change that Udall mentions:
Even worse, the rules make any effort to change them a daunting process. Currently the rules for the Senate continue from one Congress to the next. However, as last modified in 1975, even attempts to change the rules can be filibustered, and in fact require an even greater threshold (two-thirds, or 67 senators) be met than for the regular business of the Senate.
Do you remember when I told you to keep the concept of the Senate as a "continuing body" in mind? Probably not, because I did it in "This Week in Congress," and nobody really reads that crap. But anyway, this is the reason I asked you to mentally file it. It's the continuing body theory that holds that the rules of the Senate continue from one Congress to the next, as Udall points out. And it's the conflict of that concept with Article I, Section 5 of the Constitution, granting each house of Congress the right to determine its own rules of procedure, that has resolved itself in the precedents as this sort of magic window of opportunity.
With discussion of cloture reform coming almost on a daily basis at this point, and with the filibuster having frustrated the progress of major agenda items like health care (not to mention reproductive rights, along the way), and likely to do the same for climate change, employee free choice, Don't Ask/Don't Tell, banking, finance and consumer credit reform, expect the demands for reform to reach fever pitch at about the same time that the magic window is getting ready to open.
Anyone with plans to sit in that body come January 2011 had better be thinking about it, because the activist Democratic base certainly will be, along with big time political donors, issue advocacy groups, labor unions, grassroots membership organizations, and millions of voters who've grown as frustrated with having to repeatedly express their disgust with Washington gridlock as they have with the gridlock itself.