Today's NY Times has an editorial by Tom Geoghan (as this prior diary points out, aside from being a constitutional scholar, he's the netroots candidate for IL-05) arguing that the post-1973 filibuster is unconstitutional. Geoghan makes good arguments (as we'll see, he's even backed by ghosts like Richard Nixon and Democratic Joe Lieberman), but he doesn't really face the counterarguments. In particular, Article 1 Section 5 states:
Each House may determine the Rules of its Proceedings,...
So let's review. What are the practical possibilities of ending the filibuster? How would each of them work, what are the chances, and what are the disadvantages? (I'm assuming for the purposes of this diary that we all do want to end the filibuster ASAP - if you want to argue about that, or falsely claim that Dems only want to end the filibuster when they have a majority, then this is not really the diary for you.)
A few things should be said at the outset. First, obviously, any of the procedures below require at least 51 votes (including the VP), and there's no guarantee that we have those votes. Second, for any of the procedures below, the spurned minority would squeal that the move was unconstitutional. Third, it would just be squealing; even if their arguments were 100% correct, they would probably not be justiceable. That is, the Supreme Court would probably never touch this with a 10 foot pole.
1. the 2005 "Nuclear option".
Wikipedia, emphasis mine:
A senator makes a point of order calling for an immediate vote on the measure before the body, outlining what circumstances allow for this. The presiding officer of the Senate, usually the vice president of the United States or the president pro tempore, makes a parliamentary ruling upholding the senator's point of order. The Constitution is cited at this point, since otherwise the presiding officer is bound by precedent. A supporter of the filibuster may challenge the ruling by asking, "Is the decision of the Chair to stand as the judgment of the Senate?" This is referred to as "appealing from the Chair." An opponent of the filibuster will then move to table the appeal. As tabling is non-debatable, a vote is held immediately. A simple majority decides the issue. If the appeal is successfully tabled, then the presiding officer's ruling that the filibuster is unconstitutional is thereby upheld. Thus a simple majority is able to cut off debate, and the Senate moves to a vote on the substantive issue under consideration. The effect of the nuclear option is not limited to the single question under consideration, as it would be in a cloture vote. Rather, the nuclear option effects a change in the operational rules of the Senate, so that the filibuster or dilatory tactic would thereafter be barred by the new precedent.
Note that the nuclear option needs at least one, and probably two, people to assert that the current filibuster is unconstitutional. In 2005, the Republican argument was that Judicial filibusters were unconstitutional, but legislative ones are constitutional. This relied on some pretty thin reasoning that Article II, Section 2, of the U.S. Constitution, which says the president "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint ... Judges...", requires an up-or-down vote.
I'll come back to the nuclear option later (I bet you can see where I'm going), but for now, just note that the nuclear option as proposed in 2005 is NOT relevant to legislative logjam, because it would only eliminate judicial filibusters.
2. Non-"Continuing body".
Unlike the House, the Senate rules are not re-voted every session, under the theory that the overlapping terms make the Senate a "continuing body". In fact, Rule V specifically states that new rules must be approved under the current rules, and rule XXII requires a 2/3 (not 3/5) supermajority to break a filibuster on rules changes.
However, there are strong arguments that these rules are not, in fact, valid at all. In his head-on attack on the continuing body theory, Aaron-Andrew P. Bruhl of University of Houston argues that the Senate does not act as a continuing body in many important regards, and that nobody argues that it should; that in terms of real turnover, the house is comporably unchanging and sometimes more so; and that even if the Senate were a continuing body, it could still not bind itself with entrenched rules, just as it cannot make a pro-tempore president immune to mid-session changes in party control; as well as various other arguments. And he's not alone; for instance, in 1957 the VP, one R. Nixon, issued an advisory opinion stating that no Senate may constitutionally enact a rule that deprives a future Senate of the right to approve its own rules by the vote of a simple majority.
In practice, though, as I said at the outset, the legal validity of the rules are not what matters. The rules are whatever the senate president (Biden) and 50 senators say they are, because the judicial branch has little jurisdiction, and typically less inclination, to say anything about legislative branch internal rules. A good argument helps to get the 50+1 votes, but in the end the votes are all that counts.
The strategy, then, would be to start a session by voting on the rules. The procedure at that point would be pretty much the same as the nuclear option, but the arguments would be much stronger. Instead of arguing that the filibuster is unconstitutional, this would just say Rule V is, and Bruhl's article smashes all the arguments that it isn't - except perhaps the argument of (untested) precedent.
Politically, this would not be easy sailing, but I think it is very doable. For instance, I think that going all the way with this option would be less controversial than the mere Republican threat of the Nuclear Option was in 2005.
3. Harkin bill (decaying supermajority requirement)
Harkin has said he's planning to reintroduce a bill amendment to end the filibuster:
On the first vote, you need 60. Then you have to wait two days, and on the third day, you need 57 votes. And then you need to wait two days, and on the third day, it's 54 votes. And then you'd wait another two days, and on the third day, it would be 51 votes.
That's 9 working days. Given that there are generally a couple of opportunities to require cloture, that means a bill could be held up for up to a month (if you had over 46 senators).
Of course, as a bill or amendment, this has 0 chance. It will be filibustered. Even though Harkin originally introduced this idea in 1995. Along with Joe Lieberman. When Democrats were in the minority.
4. Geoghan's suggestions
Coming back to the recent NYT editorial: Geoghan argues that the filibuster itself is unconstitutional because it is a de-facto supermajority requirement, and (also de facto) removes the VP's constitutional power to break Senate ties. He also argues that it goes against the founders original intent, based on the logical inconsistency with the 50% quorum and on some passages in the Federalist Papers. These are good points.
But as I said above, such indirect ("de facto", "original intent") argumentation is pretty weak compared to the simple directness of Article 1 Secion 5. "Each House may determine the Rules of its Proceedings", case closed. That is, if the case is ever even opened - nobody but the VP would have standing to bring it, and even then, the SCOTUS might well refuse to take it because of separation of powers.
Aside from a court case - which, to be fair, he portrays as a last resort - what does Geoghan suggest? A house resolution and a declaration from the VP speaking as president of the Senate. Since neither of these would, in themselves, be binding, we can assume that Geoghan believes his argument has weight, but to actually fix the problem, would advocate one of the other options presented here rather than a court case.
5. Geoghan-inspired "nuclear option"
Basically, this means using the procedure from option 1 with the arguments from option 4. As I argued in option 4, this is a weaker legal case - and thus also tougher politically - than attacking Rule V as in option 2. Given the current Supreme Court's willingness to bend the rules to play politics (remember, even counting Sotomayor, it's mostly moved right since Bush v. Gore), this might even be overthrown by the Supremes. On the other hand, unlike option 2, this is a trigger which can be pulled at any time, not just at the start of a session.
6. Combination strategy
This means using several different threats, probably based on options above, to get some kind of compromise passed. A combination strategy is more likely to succeed than any of its component parts - but it's also more politically costly.
UPDATE: Please sign Jonathan Tasini's petition. He favors option 2, and is running for the senate.