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With time running out and Senate Republicans abusing closure to prevent the Senate from doing anything until they get their way on tax cuts for multi-millionaires, it's long past time for the Democrats to simply take away the filibuster. And notwithstanding the President's cave-in, Senate Democrats have the power to do exactly that.

The nuclear option aka the "constitutional option" is a fairly well-known but never-used way to get rid of the filibuster with a simple majority vote. It requires planning, coordination and solidarity: at least fifty Democrats and Joe Biden need to agree to it and then actually follow through. The procedure is fairly simple: a Democratic Senator moves to vote on a bill -- say, the middle class tax cut. 41 or more Republicans vote against closure.  

A Democratic Senator then raises a point of order, objecting to the 3/5ths majority requirement for a closure vote as unconstitutional for some reason -- let's say, because it bars the Senate from acting as a simple majoritarian body as envisioned in the Constitution -- and seeks a ruling from the President of the Senate that in the absence of a constitutionally viable Senate rule to the contrary, debate can be cut off by a simple majority vote.

The President of the Senate -- Vice President Biden -- then sustains the point of order: yes, the current 3/5th closure rule is unconstitutional because it creates the possibility of indefinitely extended debate with no floor vote ever occurring, creating, in effect, an unconstitutional supermajority requirement to pass legislation. This is a political decision, not a legal one; whether there actually is a strong legal or constitutional argument against the current closure rule is immaterial. It's not going before a court and won't be subject to judicial review. It also doesn't say that all possible closure rules the Senate might impose in the future are unconstitutional, just that this one is.

It might stand there, but then it's likely that a Senator will appeal the decision to the floor, meaning the entire Senate may debate and vote on the ruling. The appeal, however, can then be tabled by a simple 51-vote majority, ending dicussion right there. 50 Democratic Senators, with Biden breaking a tie if needed, can end the "60 vote majority" requirement for the rest of this session.

This use of the "nuclear option" doesn't get rid of the filibuster forever; it simply gets rid of the current closure rule for the rest of this term. Nothing would prevent the Senate from passing a new closure rule next term; the ruling of "unconstitutionality" would not be a binding precedent against a Senate rule that set different requirements for a filibuster -- one that allowed for extended debate, but not indefinite delay that permanently blocks a bill from a vote.

In the past, the major objection to getting rid of the filibuster is "we'll need it when we're in the minority." But if the prospect of a filibuster in some form survives and only one specific closure rule is nullified, that becomes less of a concern. Besides, the Senate was never intended to be a supermajoritian body -- if the Republicans wind up in control of the Senate, they should be able to pass their agenda with 50 votes plus one. Extended debate is good, but it should not be possible for 41 Senators to indefinitely block a floor vote on anything.

In any case, the Senate Democrats have the ability right now to kill the current closure rule. For the rest of December 2010, a 51 vote majority would be sufficient to bring every bit of remaining Senate business to a floor vote, and put an end -- at least this year -- to Republican hostage-taking.

Originally posted to Darkpoole on Mon Dec 06, 2010 at 06:24 PM PST.

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