Legal Arguments About the Filibuster

My understanding is that technically cutting off the debate may be what is unconstitutional. Until 1917 there was no means of getting a senator or group of senators from keeping talking as long as they desired to prevent business from taking place. However, most politicians are lawyers and no tortuous twisting of laws and regulations is beyond them. Here is how Charles Lane of the Washington Post believes it may proceed:

The Senate Rules Committee could approve an amendment of the filibuster rule; a simple majority could vote in favor of it; and then a member of the majority (today, a Republican) could raise a point of order claiming that a simple majority is sufficient, both to pass the rule and limit debate on it, on the grounds that the two-thirds requirement is unconstitutional. The Senate's presiding officer -- currently Vice President Cheney -- would refer that to a vote, where the Republican majority could pass it.

Then the Democrats would have the option of going to court, including, ultimately, the Supreme Court, where the justices would face the question of whether to intervene on a legal issue every bit as arcane, and politically freighted, as the one they wrestled with in Bush v. Gore.

Such a case would ask them to determine how easy it should be for Bush to name their subordinates in the judiciary and, in time, their own successors.