Over at the Liberty Law Blog, Mike Rappaport argues that the Senate must be able to change the filibuster rule with a majority vote:
The main reason why a majority of the Senate needs to be able to change the filibuster rule is that otherwise a simple majority of the Senate could effectively amend the Constitution. If a majority of the Senate said that the Senate could not pass a law that increased (or decreased) taxes without a 2/3 vote, and that this rule could not be changed except with a ¾ vote, then – if valid and enforceable – this rule would function like a constitutional amendment. It would give the Senate the power to change the fundamental law of the nation. Neither the structure nor the history of the Constitution supports this conclusion.
I think the argument is suspect for a couple of reasons. The 2/3 rule to amend Senate rules applies to all rules, not a single course of action based on subject matter. Second, it’s far from clear that changing a rule is the same thing as changing the underlying thing that the rule addresses. And I’m not sure that the Senate could even adopt such a rule as he proposes, for largely the reasons he objects to it. The filibuster isn’t such a rule; it’s a general rule on Senate debate, and it exempts certain types of business, but not certain subjects of proposed laws.
Perhaps most puzzling, the Senate has acted, apparently pretty much forever, as though the rules do in fact carry over session to session; if they don’t there’s no particular reason for the presiding officer to recognize Majority Leader Reid first for the adoption of new rules, since his priority only exists by virtue of existing Senate rules. The question then arises, under what rules is the Senate operating until the adoption of the new rules, and could the Republican minority not use those rules to tie up the Senate until the Democrats dropped this plan?
I recall that, when the Senate passed back into Republican hands, albeit 50-50 with the Vice President breaking the tie, there was some discussion that the Senate Democrats would try to retain control by stopping passage of a new organizing resolution, and arguing that the Senate continued to operate under the old organizing resolution. That never happened, but the idea that they would even float such a proposal would seem to be at odds with the idea that the rules don’t continue from one session to another.