For a Nevadan, Harry Reid is a lousy poker player.
Senate Democrats are fighting for their electoral lives against the filibuster, and Harry Reid is folding the few cards left in his hand. In particular, Senator Reid has recently hidden behind the constitutionally incorrect assertion that it takes 67 Senators to change the Senate's rules, and that Senator Harkin's proposal to modify the filibuster rules is therefore dead on arrival.
Senator Reid is wrong.
Under the Constitution, a simple majority of the Senate may change the Senate's rules. While doing so may be politically ill-advised (I personally favor a number of other potential solutions), Senator Harkin's proposal can be enacted by a majority. Moreover, the possibility of this "nuclear option" is a useful bargaining chip which Senator Reid should not surrender.
Senate Rule 22 lies at the heart of the matter. Rule 22 allows any Senator to speak until cut off by a vote of three-fifths of his colleagues. Rule 22 also requires that when "a measure or motion to amend the Senate rules" is introduced, two-thirds of the Senate is required (now 67 votes). Thus, says Senator Reid, Rule 22 effectively extinguishes potential actions to end the filibuster by majority vote.
Contrary to Senator Reid's assertions, the Constitution indicates that only a simple majority vote is needed to change the Senate's rules. Thus, Rule 22 can be changed by a majority vote, regardless of what Rule 22 says.
The Constitution specifically indicates when the Senate must vote by more than a simple majority, i.e., when approving a treaty, trying impeachments, expelling a member, or adopting a new amendment. The Constitution says nothing like this concerning the adoption of the Senate's rules, thus leaving that decision to a simple majority of the Senate.
The Supreme Court recognized the 51% baseline in United States v. Ballin, when it proclaimed: "the general rule of all parliamentary bodies is that, when a quorum is present, the act of a majority of the quorum is the act of the body. This has been the rule for all time, except so far as in any given case the terms of the organic act under which the body is assembled have prescribed specific limitations . . . No such limitation is found in the Federal Constitution, and therefore the general law of such bodies obtains."
The Constitution is the "organic act" under which the Senate is assembled, not Rule 22. The Constitution contains no "specific limitations" on rulemaking, and thus the Senate Rules can be changed by a majority vote.
For Senator Reid, the implications are clear: He unnecessarily weakens the Democrats' bargaining position by taking off the table the possibility of modifying or eliminating the filibuster by a majority vote. This so-called "nuclear option" is a useful threat: when Republicans floated this possibility during the Bush Administration, they successfully spurred bipartisan compromise on Republican judicial nominees.
By excluding the possibility of playing hardball, Senator Reid has ensured that the Democrats cannot effectively call the Republicans' obstructionist bluff. It doesn't take a poker expert to know where Reid is headed: straight for bust.