"Here we were with amendments on Wall Street reform. 28 amendments by majority vote. I want to offer an amendment on credit card fees, and they say, 'Oh that'll be 60.' Well where did that come from?" Durbin said.
Durbin's amendment ultimately passed, but, he said, "the 60 was designed for me to lose. I won instead."
"But the point is, if you can just out of the blue say, 'Uh that's not a majority, that's 60,' and not have any basis other than if you don't we'll filibuster, it really reaches the point where this place isn't on the square. And I think it should be."
With Republicans breaking their own filibuster records, both leading and rank-and-file Democrats have been studying various ways to end abuse of the rules by the minority. One of the leading proposals on the table is the so-called "Constitutional option." The Constitution grants both chambers the power to write their own rules. The Senate, as a continuing body, usually leaves the rules untouched, and changes require 67 votes. But a growing chorus of senators and experts now say the rule governing filibusters is unconstitutional insofar as it's used to prevent the Senate from adopting new rules. At the beginning of the next Congress, the Vice President ruled on day one of the 112th Congress that the Senate could write new rules, and Republicans object, Democrats can table that objection with 51 votes. If they do, they can rewrite the filibuster rule in myriad ways, either to dampen GOP obstruction, or eliminate it altogether.
Already, many of the usual suspects on the Democratic side of the aisle are raising objections to the Constitutional option, but if leadership and the White House are sufficiently frustrated, they could force the issue.
"It's been discussed," Durbin said. "Nobody's done that with the current Senate rules, so it would be a departure. I'm not going to rule it out or in. It will be a subject of conversation as we organize for the next Congress.... I would really want to take it to the caucus."