It also depends (in the immediate swearing-in part) upon the goodwill and collaboration of the sitting Vice President, President of the Senate and sure to throw a monkey wrench if one needs throwing on behalf of the GOPs.

1) The numbers used above for the cloture motion are only legitimate AFTER the new Senators are seated. Clearly the acceptance of seating of new members is contingent on standards established in prior situations (i.e. Landrieu). What Reid could do is place Franken up as Senator #1. If the Republicans want to have a cloture motion they would have to undertake it with 2/3rd’s of the sitting (carryover) members, since no “freshman” or carryover incumbents (Coleman, or even Cornyn) have been seated.

In that case the Republicans would have to attain 40% of the 55 sitting Senators (26 votes). The Democrats would have 37 (except for two complications). Sanchez and Clinton still hold their seats (pending resignation), Chambliss and those voted out of office do not hold seats in the new Congress. So the Republicans still have the percentage (40%) to actually create a filibuster with that stipulation because Obama and Biden have resigned, and their replacements are contingent on the acceptance by the carryover Senators. It looks as if the Republicans would have just enough (even without the Independents) to block accepting Franken.

2) Now lets say Reid places the new (and re-entering) Republican members of the Senate last on the approval list of votes, just after Franken. I think Reid would control the order of the “acceptances” and call a motion on seating Franken at any time.

Would he then be able to include all the new Democratic members in the vote minus the re-elected Republicans. As the votes to allow these new members in they could quickly swear their oath, and then vote. So slowly all the initiates would accumulate the Democratic quorum of seated members until it was 55D-26R (2I). Democrats would then have easily the needed numbers to seat Franken…even without Obama, Biden or their replacements.

Then the Senate could move ahead on seating the re-elected Republicans. The sweet irony of this would be that Cornyn himself would not be allowed to vote as these members are introduced, since he was just re-elected…technically he’s not a “member of the new class”.

Of course, the Republicans could filibuster ANY new member being seated, I suppose. But that would look really nasty and almost like a coup-de-tat. And Cornyn would be on the outside looking in. This would be a “nuclear option” for the Republicans…and remove much of their leadership. Reid could then state that they would have to clear their offices, fire their staffs, and lose their seniority if they had a “disruption of service”.

I suspect that they’d come to their senses pretty quickly.

3) Can one filibuster a non-budget or law activity in the Senate. This is a “rules” procedure and may not be subject to the same blocking methods available to disrupt the passage of laws.

I wouldn’t be so quick to decry a Democratic governor who has been arrested, but not indicted (”I need more time, please….”) by a Bush USAttorney.