The Senate’s 60-vote majority required to pass any substantive legislation sans filibuster has been enormously frustrating of late. And no, I’m not just talking about healthcare. This extends well back into Reagan’s tenure, but has been particularly problematic for the last three Presidents.

In thinking about this the other day, it occurred to me that the Constitution was pretty clear about the Senate requiring a simple majority to pass a bill. Further, I knew that the filibuster was introduced as a Senate rule and was not specifically defined in the Constitution. So I reasoned that given the filibuster’s resultant effect of being able to prevent a simple majority from passing a bill, shouldn’t it be unconstitutional?

I was pretty sure I wasn’t the first person to ask such a question, so a little research was in order. I came upon a pair of articles written by Vikram David Amar for FindLaw.com in 2003. They are a wee bit wonkish, but well worth the read if you have a few minutes. It’s also interesting that the articles were written to assess Republican chances to change filibuster rules to prevent a Democratic minority from subverting their narrow majority will. Today, we find the Republicans desperately clinging to the filibuster as a way to retain power in the Senate. Yesterday’s sword is tomorrow’s shield.

It turns out my fleeting analysis was overly simplistic. While the Constitution does say the Senate requires a simple majority to pass a bill, it also allows both houses of Congress to establish their own rules and procedures, and doesn’t provide much constraint on those rules. There are essentially two Senate rules at issue here. On the one hand is the cloture rule requiring 60 votes to end debate. But the stickler turns out to be the rule changing rule that requires a 2/3 majority to change a Senate rule (such as the cloture rule). Without the rule changing rule, a simple majority could change the cloture rule, which in effect would nullify the filibuster’s power.

Interestingly, the rule changing rule was created by a simple majority, and that turns out to maybe be the hinge on which this whole thing turns. The question is, should a simple majority be able to impose its will on a future Senate? It would seem the answer is no. With the exception of the Constitution itself, no legislative body should be able to do something that is not reversible by future legislatures.

Taking this to a somewhat goofy extreme for illustrative purposes, let’s assume that a simple majority were to pass a law outlawing boxer-briefs. No dithering. Pick one or the other. Further, let’s assume the law added a requirement that this law could only be overturned by a unanimous vote. Effectively, that law would now be immortal. I think pretty clearly that law would be struck down by the courts, not because of the goofy underwear constraint, but because it tried to make it illegal to have itself undone.

However, the rule changing rule is essentially the same. A simple majority created a rule that a simple majority cannot undo. Part of the rule is essentially insuring that the rule itself cannot be undone, at least easily. And to Amar’s point, that is likely the unconstitutional part of this mess.

While that’s all fascinating, it doesn’t really address the question of why the Senate or the courts don’t work to overturn a rule which has essentially rendered the body inert. I doubt the courts will want to intervene uninvited into the inner workings of another branch of the government, and I don’t blame them. That’s not a precedent we want to set. Yet the Senate must be somewhat self-aware that is has become dysfunctional under it’s own rules. Why don’t they act?

I suspect it all stems from a desire for power and a recognition that over time, each party will occupy the minority position. As Frank Herbert noted in his novel Dune, “The power to destroy a thing is the power to control a thing.” As the minority party, they may not be able to create anything, but they can destroy it, and destructive power is power just the same. And I think that Senators fear little more than the prospect of being powerless.