The Senate Can Still Declare the Filibuster Unconstitutional

We can force a debate on the filibuster, and possibly remove the obstacle by declaring the filibuster unconstitutional with a majority vote of the senators present.  This could mean without Manchin or Sinema.  Briefly, doing so would require an objection to the constitutionality of the the measure.  Briefly:

The process for raising a constitutional point of order against a pending2 question does not differ from that for raising other points of order. A Senator seeking to raise a constitutional point of order would simply address the presiding officer at a time when no one else holds the floor. The Senator might say, "Mr. President, I rise to point of order" or simply "Point of order, Mr. President" and then proceed to state and explain the way in which the pending matter violates the Constitution.

At least according to the Senate's current guidance on the rules.

Is the filibuster constitutional?  Probably not.  There is a lot of scholarly debate on this question.  For one thing the constitution provides various Senate supermajority requirements: such as expulsions and treaties.  The legal principle of inclusio uno exclusio alterius, well known to the founders, would seem to indicate that the inclusion of supermajority requirements precludes the creation of others without a constitutional amendment.  

More to the point the 14th amendment provides

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

…

The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

See any supermajority requirement there?  So the claim is that the filibuster is unconstitutional under the articles I and II of the constitution as well section 5 of the 14th amendment that can be read as requiring the congress to act without a supermajority as to civil rights guaranteed by the 14th amendment.

So somebody opens their big mouth, what happens next?

Under current practice and precedents relating to Rule XX, a point of order that a pending matter is unconstitutional is submitted to the Senate for decision rather than ruled upon by the presiding officer.5 The logic behind the relevant precedents is that while the presiding officer has authority to interpret Senate rules, he or she does not have the authority to interpret the Constitution.

…

A point of order submitted to the Senate for decision is debatable9 except when the Senate is operating under cloture.10 Under most circumstances, accordingly, a cloture process could theoretically be used to end extended debate and force a vote on the point of order.11 Under some circumstances, statutory provisions may limit debate on points of order; these debate limits would apply equally to a submitted constitutional point of order.12

Somebody makes the motion.  Republicans then filibuster debate on if the filibuster is constitutional.  At this point somebody objects that you cannot filibuster debate as regards to a point of order challenging the constitutionality of the filibuster.  This is a standard point of order, but not a constitutional one.

Senate Rule XX states in part that "[a] question of order may be raised at any stage of the proceedings, except when the Senate is voting or ascertaining the presence of a quorum, and, unless submitted to the Senate, shall be decided by the Presiding Officer without debate, subject to an appeal to the Senate."

For more info see here.  An appeal can be taken to the Senate, but the ruling of the chair (most likely Vice-President Harris) stands until overturned.  The vote on the ruling (that you can’t filibuster debate over the filibuster) is made without resort to the filibuster.  Should the ruling of the chair be upheld, presumably the filibuster falls soon after (at least as to civil rights).  Moreover:

Sustaining the submitted point of order requires an affirmative vote of a majority of Senators voting, assuming a quorum is present.

So if Manchin and Sinema were just to find two Republican senators who maybe could agree to all go to lunch together and NOT vote on the question of the 14th amendment banning supermajority requirement for civil rights legislation.  This can pass. 

Now the best way to do this would, probably, be to bring up the John Lewis Voting Rights Act and let Manchin see his “compromise” burn before his eyes before initiating a high stakes procedure.  Obviously, in such a situation Manchin would not be voting to CHANGE the rules but to recognize a point of constitutional order.

Also, the threat that Democrats might rush back to Washington to do this at some point, would seem to mean that Republican senators facing reelection would need to be in Washington during every day on the legislative calendar (as Democratic donors do have access to private jets, and I’m sure we could fly some people back at a moments notice).  Tends to put the Republicans at a bit of a disadvantage in the next election.