The most important provision of the Constitution is the one giving each State an equal voice in the Senate. How do we know? Because while everything else in the Constitution can be amended by a 2/3 vote in each house of Congress followed by ratification by 3/4 of the States, the Constitution provides a special rule for equal representation in the Senate: "no state, without its consent, shall be deprived of its equal suffrage in the Senate."
And yet, there is poor Minnesota, which for all of the current session of Congress thus far, and potentially for months to come, has had but one Senator, while the courts sort out Norm Coleman's challenge to Al Franken's razor-thin victory. Mostly this is a problem for the Democratic Party, which would have 57 Senators if Franken were seated. Add in the two Independents who caucus with the Democrats---Bernie Sanders, who is effectively a Democrat, and Joe Lieberman, who is pretty close on most issues---and that would mean that to break a filibuster they'd only need to pick up one of the Maine Senators or Arlen Specter. Without Franken, they need two out of three, which is a substantial difference.
The Senate could solve this problem by changing its cloture rule to provide that it takes X-40 votes to end debate, where X is the number of Senators actually seated. Of course, to change the filibuster rule, even in this minor way, would require overcoming a filibuster to the Senate Rule Change vote itself, or use of the "nuclear option," so this seems unlikely. And even if this worked, it would not help Minnesota, which has discrete interests as a state (i.e., pork) that are about Minnesota rather than the Democratic Party.
A more straightforward option would be to give the one seated Minnesota Senator, Amy Klobuchar (D), two votes. Of course, that would violate the express voting rule for the Senate set forth in Article I (one vote per Senator), but if we think that the equal suffrage provision of Article V (quoted above) is more important, then perhaps it overrides. Surely giving Klobuchar two votes would be truer to the spirit of the Article I voting rule than the cloture rule itself.
To be sure, beyond the fact that it's never going to happen, my two-votes-for-Klobuchar plan also appears to violate the 17th Amendment, which authorizes special elections to fill vacant Senate seats, or in the alternative, authorizes state legislatures to delegate to Governors the power to make interim Senate appointments. If, constitutionally speaking, the second Minnesota seat is now regarded as "vacant" because of the never-ending legal battle, then isn't the remedy for Minnesota to have another election or for Governor Pawlenty to name someone temporarily? And because neither of those options seems remotely appropriate, doesn't that suggest that the second Minnesota seat should not be regarded as vacant?
But at some point that logic breaks down. Suppose the Coleman/Franken litigation drags on for several years (as litigation sometimes does). Surely then somebody would be authorized to act---and if the Republican Governor of Minnesota refuses to do so because he regards delay as benefiting the Republican Party nationally, then the Senate itself would be warranted in taking action, even if doing so requires the "nuclear option." What I'm suggesting here is that in doing so, the Senate could say it's acting to protect the Constitution's most important provision.
Posted by Mike Dorf