Everyone on this site is talking about reconciliation, passing the Senate bill as is, and various other options in order to get around the de facto 3/5ths supermajority requirement that has been imposed on all legislation for successful passage through the United States Senate. The 3/5ths supermajority that is now needed to pass legislation through the United States Senate is not only extra-constitutional; in my opinion it is unconstitutional. And we should demand that Rule 22 of the Senate be ameneded in order to allow a simple majority vote to invoke cloture. The reasons why Rule 22 of the Senate should be amended in order to allow for a simple majority vote to invoke cloture are discussed more fully below.
Beginning in 1806, the U.S. Senate became perhaps the only parliamentary body to allow unlimited debate when it abolished the motion to move to the previous question. The filibuster has a history in the U.S. Senate going back to 1837. That year, going back to As this article by Rick Pildes illustrates, the filibuster was rarely used to block major pieces of legislation that was supported by a majority of the Senate prior to the 20th Century. In fact prior to 1917, the Senate had unlimited debate with no cloture rule at all; yet narrow majorities of the Senate were able to enact pieces of legislation. This fact was due to an implicit threat that the filibuster could itself be changed by majority rule if the minority used it to prevent, instead of merely to delay, votes on measures supported by a bare majority. However, over the decades, the filibuster has changed from a merely procedural rule regarding unlimited debate to a de facto requirement that legislation be supported by a supermajority in order for it to pass. In fact, under the current Senate Rule, Senators are not actually required to go to the Senate floor and debate the bill in order to filibuster. They only have to put others on notice of their intent to filibuster.
The filibuster was used in the 1950s and 1960s to block Civil Rights legislation. One of the most notable filibusters of the 1960s was when southern Democratic Senators attempted, unsuccessfully, to block the passage of the Civil Rights Act of 1964 by making a filibuster that lasted for 75 hours, which included a 14 hour and 13 minute address by Robert Byrd (D-WV). However, this filibuster ultimately failed to block the legislation. And compared to the frequency with which the filibuster is used today, the filibuster was rarely used in the 1960s. In fact no Senate term had more than seven filibusters in the 1960s. By comparison, in the first decade of the 21st century, no Senate term had fewer than 49 filibusters.
Furthermore, because of the fact that Senators are no longer actually required to go onto the Senate floor and debate a bill in order to filibuster, the rule has ceased being procedural in nature and has instead created a de facto requirement that legislation must be approved by a 3/5ths supermajority of the United States Senate in order for it to be passed into law.
The problem with this de facto supermajority requirement is that it conflicts with U.S. Constitution, which makes it clear that the number of votes required for passage of legislation through the United States Senate is a simple majority. Although the Constitution doesn't explicitly state that a simple majority is the number of votes required to pass legislation, Article I § 3 of Constitution, which states that "[t]he Vice President of the United States shall be President of the Senate, but shall have no vote, unless they be equally divided[,]" makes it clear that a simple majority is what the framers intended.
The conventional wisdom of course is that the filibuster and the current cloture rules, which in essence require a super majority in order to pass legislation, is constitutional because Article I § 5 states that "[e]ach House may determine the rules of its proceedings." However, I believe that the current Senate Rules establishing the de facto super majority requirement for passing legislation goes beyond the procedural rule making power given to each house of Congress in Article I § 5 because it fundamentally alters the process set forth for passing legislation by the United States Constitution.
To illustrate my point, I will allude to another Constitutional requirement concerning the number of votes required to override a Presidential veto. As you probably know, Article I § 7 requires 2/3rds of the members of each house to vote for a bill's passage in order to override a Presidential veto. I highly doubt that anyone would argue with a straight face that either House of Congress has the authority to alter the number of votes required as set forth by the U.S. Constitution in order to override a Presidential veto. Surely the U.S. Senate doesn't have the authority to require that 75% of its members vote in favor of legislation in order for the legislation to become law in the face of a Presidential veto. Similarly, it is beyond the pale to think that the Senate could change its rules in order to allow a simple majority to override a Presidential veto. If such changes to the number of votes required to override a Presidential veto are clearly unconstitutional; how can the current de facto super majority requirement for passing legislation in the United States Senate prior to it arriving on the President's be considered constitutional?
I recognize the fact that such a challenge to Constitutionality of the filibuster is probably doomed to failure. It is hard to imagine that five Supreme Court Justices would strike down Senate Rule 22 as being unconstitutional. However, it may be possible to amend Senate Rule 22 so as to require only a simple majority. Normally it takes 67 votes to change a Senate Rule, but on the first day of a legislative session, only 51 votes are required. I suggest that we work to put pressure on Harry Reid to Amend Rule 22 on the first day of the next legislative session so that a simple majority can invoke cloture. Of course the other option is to challenge Senate Rule 22 in court. As I previously stated, I am afraid that this tactic would be unsuccessful, but even if we lost in court; we may ultimately win in the court of public opinion and force the Senate to act on a Rules change.