One of the most hallowed, if scarcely saintly, Senate traditions is the filibuster. The practice is not enshrined in the Constitution, yet during the nineteenth century its use grew like a strangler fig, until it became possible for any single Senator to entirely block any piece of legislation that displeased him. That this was astonishingly undemocratic was not openly acknowledged until the passage of Senate Standing Rule XXII, which outlined procedures for curtailing the filibuster, beginning with a call by the Presiding Officer—
"Is it the sense of the Senate that the debate shall be brought to a close?" And if that question shall be decided in the affirmative by three-fifths of the Senators duly chosen and sworn—except on a measure or motion to amend the Senate rules, in which case the necessary affirmative vote shall be two-thirds of the Senators present and voting—then said measure, motion, or other matter pending before the Senate, or the unfinished business, shall be the unfinished business to the exclusion of all other business until disposed of.
So instead of hacking away the filibuster’s roots completely, it was decided to administer a surgical cut, but also, in the same breath, provide a balm in the form of a promise never to assail the privilege of the filibuster again except by a vote of two-thirds of the Senate.
On the face of it, Rule XXII means that the current requirement of 60 senators to invoke cloture can only be changed if 67 senators vote to do so. Such a change might be extremely useful in the present political situation. Things would proceed much more smoothly if, say, the 60 vote requirement was reduced to 55. But the likelihood of that happening seems as remote as the reappearance of the nickel cup of coffee. How could the Democrats scare up the 67 Senate votes needed for such a coup? The recent performance of the House Republicans illustrates how difficult it is to persuade an elephant to go anywhere, even when it is clearly in its interest, and surrendering the power of the filibuster in the Senate would not be in its interest.
And yet, there is a way around the difficulty that would require only a simple majority of the Senate to approve.
As a procedural matter, Senate Rule XXII passed by simple majority. Whatever it stipulates regarding the filibuster and cloture, or anything else for that matter, it all can be whisked away by the Senate voting, by a simple majority, to repeal Rule XXII, which would then be replaced by another Rule identical except in one particular. Would any senator (or chorus thereof) have an option to oppose this action, to appeal that it is unfair and perhaps even unconstitutional? Yes indeedy. Any complaints can be taken directly to the President of the Senate for a ruling—who happens to be Joe Biden, the Democratic Vice-President of the United States. Is there a remedy in the courts? Alas no, because the Constitution allows, in Article I section 5—
"Each House may determine the rules of its proceedings."
So the weapon exists to seriously damage the tyranny of the minority. The question is, will there be enough spine amongst Senate Democrats to use it?