Tom Udall is determined to change the rules of the Senate, which have transformed the chamber from “deliberative to dysfunctional,” in his words. Some of his colleagues, including Democrats at the White House, may finally be figuring this out as well.

The first step is admitting there’s a problem, and Dick Durbin is doing that, at least.

Senate Democratic Whip Dick Durbin (Ill.) on Thursday admitted the “general feeling on the Democratic side” was that Republicans have so far been able to cast controversial protest votes and stall important legislation “with impunity.”

He consequently seemed to suggest Republicans’ behavior in Congress over the past year as hypocritical, as Democrats could never vote against important legislation and emerge unscathed.

“Some of the votes [Republicans] cast — we would be on trial for treason if we had voted against defense appropriations in the midst of a war,” he told reporters on his way to the Senate chamber. Durbin was referring to GOP members who tried to block the defense bill out of concern that a hate crimes bill was attached to it.

“They did it with impunity,” Durbin lamented.

There are just a few ways to react to this: try to create space for “broad bipartisanship,” despite all evidence pointing in the direction of Republicans willing to vote against things they sponsored and supported for years just because Democrats take them up on them; imagine the artificial super-majority rules as unalterable and use the fact politically by saying that ” Republicans now have a responsibility to govern,” as if that’s ever stopped them before; or maybe, just maybe, lay the groundwork to change the rules, and move toward something unusual to the US Senate in recent years, majoritarian democracy. Here’s Kent Conrad moving in that direction.

The Senate “was not designed to have everything require 60 votes,” Conrad said. “It wasn’t designed to prevent important action on the problems facing the country.” If a supermajority is effectively necessary to pass any piece of legislation, he added, this “puts a great deal of pressure on going to more of a reconciliation process to deal with things.” […]

Conrad, for one, didn’t sound like a man with doubts about the idea. He said, “Frankly I think we have to reconsider the rules by which this body is governed,” because the Senate “is in danger of becoming dysfunctional,” and “there’s going to be a building demand in the country to change the system.”

In the short term, this is good news for the ability of Congress to move legislation using the reconciliation process, including a “sidecar” for health care reform. In the long term, a centrist Senator like Kent Conrad saying “we have to reconsider the rules by which this body is governed” is priceless. At a meeting with progressive bloggers and journalists, David Axelrod offered some rhetorical support for the rule changes.

Mixing lobbying with journalism, I told Axelrod it was not think it was possible to make Republicans pay a political price for their egregious use of the filibuster. I told him about the Pew poll released today showing that only 26% of the country knew it took 60 votes in the Senate to end a filibuster. I also told him about Pew polls during the nuclear option fight back in 2005 showing that the public never really took an interest in news about the filibuster, even when it was the top political news story for a couple weeks. Concluding, I told him that, given how few Americans know what the filibuster is, given how little interest they have shown in the past when it became a big political story in the past, there is no way that the White House can engage in a public education campaign large enough to ever make Republicans pay a meaningful political price for their use of the filibuster. As such, wouldn’t it be easier to for 51 Senators to change the Senate rules on the first day of Congress in 2011, so that only 51 votes are required to pass anything through the Senate?

Axelrod responded that was “a worthy discussion.” While he indicated the White House was mainly focused on passing legislation in 2010, rather than on what happens in 2011, in no way did he dismiss, challenge, or denigrate the idea.

Further, later on in the discussion, David Waldman of Daily Kos asked Axelrod if the White House would assist a campaign to change the Senate rules in 2011, if such a campaign started to take off on its own.

To that, Axelrod responded, “we have an interest” in such a campaign.

In my interview with Udall, he dismissed the need for rhetorical support from the White House, saying that he was focused on the Senate. But there’s no question that the White House can be instrumental in allowing rules changes to go forward. The flip side of nobody paying attention to Republican obstructionism is that nobody will be likely to make an issue of Democratic changes to a more small-d democratic rules structure. Republicans have actually been a bit more successful demagoguing process than Democrats have, most recently with Ben Nelson’s backroom deals, but the blowback won’t be lasting if it means expanded productivity from the legislative branch to deal with the challenges America faces.

There’s a lot to be hopeful about here.

UPDATE: Here’s a scholarly article on the “continuing body” theory of the Senate. Basically, this is the reason that the rules are never voted upon; the Senate is seen as a “continuing body” whose rules carry over from one Congress to the next. But that is at variance with the Constitution, Article I, Section 5. Here, Aaron-Andrew Bruhl of the University of Houston Law Center argues that the “continuing body” claim cannot stand up to scrutiny, and in conflict “with the usual principle that current legislative majorities are not bound by their predecessors’ decisions.” This would also eliminate the possibility of filibustering rule changes.

David Dayen

David Dayen