Brian Beutler January 24, 2011, 10:50 AM

This week, a group of Democratic filibuster reformers will face the first big test of their effort to invoke the “Constitutional Option” — a process by which members can change the Senate rules by a majority vote. The theory underlying their efforts is that the previous Senate’s rules aren’t really valid until the new Senate has intentionally adopted them.

That’s leading to confusion over whether they’re truly on the path to invoking the Constitutional Option — and that, in turn, means Vice President Joe Biden might have to weigh in and settle the dispute.

Here’s the issue under contention.

Under normal Senate rules, the reformers — led by Sens. Tom Udall (D-NM) and Jeff Merkley (D-OR) — would have to receive unanimous consent from the entire Senate to begin debate on their rules resolution. If there were a single objection, the resolution would be kicked to the next legislative day, and placed on the calendar for morning business. This status — known as “over, under the rule” — is a sort of legislative limbo, and, according to one Senate official, it would allow the GOP to invoke a host of delay tactics.

But this is the crux of Udall’s argument: a new Senate has to have a process for adopting new rules, and that old rules can’t stand in the way of it.

Thus, if any member, Democrat or Republican, tries to block him, the question of who has the right-of-way could fall to the president of the Senate or his surrogate. Historically, it’s been the vice president who resolves disputes like this.

In 1957, at the opening of the 85th Congress. Richard Nixon adjudicated a similar dispute, and ruled in favor of the reformers. “In summary, until the Senate at the initiation of a new Congress expresses its will otherwise, the rules in effect in the previous Congress in the opinion of the Chair remain in effect, with the exception that the Senate should not be bound by any provision in those previous rules which denies the membership of the Senate the power to exercise its constitutional right to make its own rules.

Emphasis added. There are similar precedents too, which is why the Udall camp isn’t terribly concerned. But this is a moment anti-reformers could use to cause some trouble.

Constitution, Constitutional Option, Filibuster, Filibuster Reform, Jeff Merkley , Tom Udall