Legal Commentary

Sen. Tom Udall, Democrat of New Mexico, is one of the leaders in the move for filibuster reform; he is the lead sponsor of the recent proposal that would end secret holds and require the filibustering minority to hold the floor and keep talking. In the current online version of Harvard Law & Pol'y Review, Sen. Udall lays out the argument why the entrenchment of the filibuster rule is unconstitutional and why it can be changed by a simple majority in the new Senate (under the so-called Constitutional Option or Nuclear Option or whatever the kids are calling it these days). The entrenchment point is essential to enacting any filibuster reform, unless the Republicans are willing to go along with rule reform (unlikely, although I wondered, after seeing Sen. Udall's proposal, whether the Republicans might see it as an acceptable move).