Many commentators have argued that Senate rules permitting the filibuster are unconstitutional. To summarize: The US Constitution specifies only a simple majority is needed to pass a bill in the Senate. Supermajorities are only constitutional for certain enumerated exceptions. Thus a Senate rule which in effect forces a 60 vote requirement on the passage of a bill is on its face unconstitutional. On this I strongly agree.
Where the commentators fail (including this recent diary) is to call on the Senate to revise its rules to fix the problem. That will not happen. The cure for this problem will come with those organs of the US government with the power and responsibility to fix it: The US House of Representatives and the US Supreme Court. The process begins with the impeachment of Harry Reid.
Sounds nuts, I know. Why would the House, controlled by Democrats vote to impeach the Senate Majority Leader who is also a Democrat? And the Senate would not try the case anyway, so why bother?
Because:
(A) It is a Separation of Powers issue.
and
(B) It is a Separation of Powers issue.
The original authors of the US Constitution understood that an organ of government will grow like a cancer, unless checked by another equally hegenemous organ. This tendency is both the cause and cure for the problem.
The cause: The Senate has unilaterally and unconstitutionally expanded its power by permitting the filibuster within its rules. It is in its nature to expand its power, and not in its nature to fix it.
The cure (Part 1): The House of Representatives is diminished as a result. It has gone on a very long time, but that does not make it right or acceptable. The House must thwart this conspiracy by impeaching any members of the Senate who collude to force a supermajority to pass a bill. The Senate Majority Leader is a reasonable place to start. The House must act to preserve its power (or in this case reclaim it.)
The cure (Part 2): The Senate is required by the constitution to try cases of impeachment. Only one US Senator has been impeached, William Blount in 1797. The Senate will decline to try the case, citing lack of jurisdiction, just as it did then. Of course they will do that, they are a self-aggrandizing organ, remember? The Senate will not act to diminish its power, no matter how ill-gotten.
The cure (Part 3): Enter the US Supreme Court. Article III of the US Constitution grants this court jurisdiction of questions of constitutionality. Inasmuch as the US Senate has declined jurisdiction over trials of a Senator, a trial of a Senator in the US Supreme Court for colluding in enforcement of an unconstitutional rule is doubly appropriate. Being an organ of government, the US Supreme Court will accept the opportunity to reduce the power of the Senate.
The time is ripe for this scenario. The House and Senate are controlled by the same party (well, in theory). This makes the issue germane. The House would not bother trying to compel a Senate with another party in the majority to revoke its rule, since it would not cause a House bill to advance. The US Supreme Court, packed with Bushtards, is hostile to the party in power in the Congress and Executive. This court has a demonstrated talent for acting increase its power. The question is whether it will be too nakedly political to act in its institutional interest in favor of preserving the current leverage of Republican senators.
If Harry Reid is impeached to regain majority rule in the Senate, I see it as a matter of sacrificing a bishop to obtain a checkmate.