I've posted a couple of previous diaries about the Senate rules in the last few days. In the first one, I talked about what the Senate rules are, and how they can be changed. In the second, I talk about one frequent misconception about the Senate rules, that there's an opportunity to change them with each new Congress.
If you've read both of those diaries, then I hope you've absorbed that changing the rules within the Senate itself really requires the 67 votes that people keep talking about, and that if you want to "fix" any of them within that frame, you just need to elect a lot of better Democrats. In this diary, I want to talk to another frequent idea: that the Supreme Court, the President, or, perhaps, the House of Representatives can change the Senate rules without the Senate's cooperation.
They can't. It's that simple. There's no equivalent of the 67 vote rule; the only body on Earth that can change the Senate rules is the Senate itself.
The basis for that argument is in Article I, section 5, clause 2, which states that
Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two thirds, expel a member.
That's the only statement of the nature of the rules, and it clearly intends that the legislature control its own operation. The Federalist papers tend to support this view -- they talk, constantly, about the superiority of the legislative branch over the others. In addition, the overall power of each House to determine the qualifications of its own members (subject to the broad restrictions enumerated in Article I and the various amendments, most particularly the 13th, 14th, and 15th) indicates that the Constitution is intended to make the Congressional houses immune to annoyance from the other branches.
What does that mean? Simply put, no matter what you may want to believe, the Senate's archaic and obnoxious rules are unquestionably valid. There's no magic wand that allows you to "detect regulatory abuse and route around it"; you can't "hack the rules". If you and I want the rules fixed -- and fixed they must be -- we will have to convince the Senate and the Senators who make it up to do that themselves. That's going to take a lot of hard work, and, in my next installment (the fourth of two, if I've kept count correctly), I'll present a few ideas for how it might be done.