The Senate leadership is pondering repealing the cloture requirement of 60 votes to close debate and stop a filibuster for judicial nominees. Cloture would be repealed not through a formal rule change, but through a clever finesse of the rules. The parliamentarian responsible for interpreting how the rules apply would simply invalidate the cloture rule. This would be challenged and the rule would need 51 votes to keep it at that point assuming Dick Cheney is against.

The Senate Democrats have warned that they will bring all business to a halt in the Senate were this to occur. This is credible, but in turn may be finessed with something even more drastic.

Here is a new option–call it a thermonuclear option–that would allow the Senate to switch to a new majoritarian mode and continue to function. A member would call a point of order saying that none of the rules are in order because they had not been approved by a majority of the current members. The parliamentarian would rule that yes, after over 200 years of precedent, the original Senators clearly made a mistake in assuming that Senate rules bound future Senates. The majority could then go on to adopt any rules they want. This could allow it to continue to function without the participation of any Democrats.

Cloture should be an issue that cuts across party lines. If the Senate repealed cloture on all legislation, the House would have equal say in all matters for a change. This would be a big boon to states like California, New York and Texas that are highly underrepresented in the Senate. Democrat Senators from all States that have nine or more Representatives in the House should be in favor.

The flip side of course is that small state Senators should be opposed. There are many more small state Senators than large state Senators. For this reason, cloture is unlikely to ever be repealed without a massive buyout transferring money from large states to small to compensate them for the lost pork in future years. Even cloture removal just for judicial nominations would be a critical weakening of small state power.

While I like supermajoritarianism in general, I have not been a fan of supermajority requirement in the Senate and a simple majority requirement in the House. This systematically bleeds money from big states to small states. While perhaps a sensible policy during colonization, now it is just a pork fest. Arnold Schwarzenegger made that point after getting elected. My question is, “Why has the House not imposed its own 60% cloture requirement to balance the power in the Senate?”

More on legislative power can be found in “The Senate: An Institution Whose Time Has Gone?” in The Journal of Law and Politics, 1997.