In the United States Senate, the nuclear option is a parliamentary procedure that allows the Senate to override a standing rule by a simple majority, avoiding the two-thirds supermajority normally required to invoke cloture on a measure amending the Standing Rules. The term "nuclear option" is an analogy to nuclear weapons being the most extreme option in warfare.
The nuclear option can be invoked by a senator raising a point of order that contravenes a standing rule. The presiding officer would then overrule the point of order based on Senate rules and precedents; this ruling would then be appealed and overturned by a simple majority vote (or a tie vote), establishing a new precedent. The nuclear option is made possible by the principle in Senate procedure that appeals from rulings of the chair on points of order relating to nondebatable questions are themselves nondebatable.[1]: 725 The nuclear option is most often discussed in connection with the filibuster. Since cloture is a nondebatable question, an appeal in relation to cloture is decided without debate. This obviates the usual requirement for a two-thirds majority to invoke cloture on a resolution amending the Standing Rules.
The nuclear option was notably invoked on November 21, 2013, when a Democratic majority led by Harry Reid used the procedure to reduce the cloture threshold for nominations, other than nominations to the Supreme Court, to a simple majority.[2] On April 6, 2017, the nuclear option was used again, this time by a Republican majority led by Mitch McConnell, to extend that precedent to Supreme Court nominations, in order to enable cloture to be invoked on the nomination of Neil Gorsuch by a simple majority.[3][4][5]
The use of the nuclear option to abolish the 60-vote threshold for cloture on legislation has been proposed, but not successfully effected.
Procedure to invoke the nuclear option
On November 21, 2013, following a failed cloture vote on a nomination, the nuclear option was used, as follows:[6]
Mr. REID. I raise a point of order that the vote on cloture under Rule XXII for all nominations other than for the Supreme Court of the United States is by majority vote. The PRESIDENT pro tempore. Under the rules, the point of order is not sustained. Mr. REID. I appeal the ruling of the Chair and ask for the yeas and nays.
(48–52 vote on sustaining the decision of the chair) The PRESIDENT pro tempore. The decision of the Chair is not sustained. The PRESIDENT pro tempore. *** Under the precedent set by the Senate today, November 21, 2013, the threshold for cloture on nominations, not including those to the Supreme Court of the United States, is now a majority. That is the ruling of the Chair.[7]
Once the presiding officer rules on the point of order, if the underlying question is nondebatable, any appeal is decided without debate. A simple majority is needed to sustain a decision of the chair.[1]: 148 As the appeal is nondebatable, there is no supermajority requirement for cloture, as would be necessary for a proposition amending the rules. The presiding officer and the standing rule can therefore be overruled by a simple majority. This procedure establishes a new precedent that supersedes the plain text of the Standing Rules. These precedents will then be relied upon by future presiding officers in determining questions of procedure.
The procedure may, for example, override requirements of Rule XXII, the cloture rule, in order to allow a filibuster to be broken without the usual 60-vote requirement.
Originally, the Senate's rules did not provide for a procedure for the Senate to vote to end debate on a question so that it could be voted on,[8][9][10] which opened the door to filibusters. In 1917, the Senate introduced a procedure to allow for ending debate (invoking cloture) with a two-thirds majority, later reduced in 1975 to three-fifths of the senators duly chosen and sworn (60 if there is no more than one vacancy).[11] Thus, although a measure might have majority support, opposition from or absence by at least 41 senators can effectively defeat a bill by preventing debate on it from ending, in a tactic known as a filibuster.
Since the 1970s, the Senate has also used a "two-track" procedure whereby Senate business may continue on other topics while one item is being filibustered. Since filibusters no longer require the minority to actually hold the floor and bring all other business to a halt, the mere threat of a filibuster has gradually become normalized. In the modern Senate, this means that most measures now typically requires 60 votes to advance, unless a specific exception limiting the time for debate applies.
Changing Rule XXII to eliminate the 60-vote threshold is made difficult by the rules themselves. Rule XXII, paragraph 2, states that to end debate on any proposition "to amend the Senate rules [...] the necessary affirmative vote shall be two-thirds of the Senators present and voting". If all senators vote, 67 votes are required to invoke cloture on a proposition to amend a rule.[11]
Terminology
Republican Senator Ted Stevens suggested using a ruling of the chair to defeat a filibuster of judicial nominees in February 2003. The code word for the plan was "Hulk". Weeks later, Senator Trent Lott coined the term nuclear option in March 2003 because the maneuver was seen as a last resort with possibly major consequences for both sides.[12][13][14] The metaphor of a nuclear strike refers to the majority party unilaterally imposing a change to the filibuster rule, which might provoke retaliation by the minority party.[15][16]
The alternative term "constitutional option"[17][18][19] is often used with particular regard to confirmation of executive and judicial nominations, on the theory that the United States Constitution requires these nominations to receive the "advice and consent" of the Senate. Proponents of this term argue that the Constitution implies that the Senate can act by a majority vote unless the Constitution itself requires a supermajority, as it does for certain measures such as the ratification of treaties.[15] By effectively requiring a supermajority of the Senate to fulfil this function, proponents believe that the current Senate practice prevents the body from exercising its constitutional mandate, and that the remedy is therefore the "constitutional option".
The maneuver was brought to prominence in 2005 when Majority LeaderBill Frist threatened its use to end Democratic-led filibusters of judicial nominees submitted by President George W. Bush. In response to this threat, Democrats threatened to obstruct all routine Senate business. The ultimate confrontation was prevented by the Gang of 14, a group of seven Democratic and seven Republican Senators, all of whom agreed to oppose the nuclear option and oppose filibusters of judicial nominees, except in extraordinary circumstances. Several of the blocked nominees were brought to the floor, voted upon and approved as specified in the agreement, and others were dropped and did not come up for a vote, as implied by the agreement.
Rules reforms, 2011 and 2013
In 2011, with a Democratic majority in the Senate (but not a 60-vote majority), Senators Jeff Merkley and Tom Udall proposed "a sweeping filibuster reform package" to be implemented by the nuclear option, but Majority Leader Harry Reid dissuaded them from pushing it forward.[20]
The nuclear option was raised again following the congressional elections of 2012, this time with Senate Democrats in the majority (but short of a supermajority).[21] The Democrats had been the majority party in the Senate since 2007, but only briefly did they have the 60 votes necessary to halt a filibuster. The Hill reported that Democrats would "likely" use the nuclear option in January 2013 to effect filibuster reform,[22] but the two parties managed to negotiate two packages of amendments to Senate rules concerning filibusters that were agreed to on January 24, 2013,[23] thus avoiding the need for the nuclear option.[24]
In July 2013, the nuclear option was raised as nominations were being blocked by Senate Republicans as Senate Democrats prepared to push through a change to the chamber's filibuster rule.[25] On July 16, the Senate Democratic majority came within hours of using the nuclear option to win confirmation of seven of President Obama's long-delayed executive branch appointments. The confrontation was avoided when the White House withdrew two of the nominations in exchange for the other five being brought to the floor for a vote, where they were confirmed.[26]
Recent usage
1995: Hutchison precedent
Rule XVI of the Standing Rules of the Senate prohibits legislative material from being included in general appropriations bills.[27]
In 1995, during consideration of the Emergency Supplemental Appropriations and Rescissions for the Department of Defense to Preserve and Enhance Military Readiness Act of 1995, Senator Kay Bailey Hutchison offered an amendment that would have changed existing law regarding endangered species, therefore violating Rule XVI. Senator Harry Reid raised a point of order against the amendment, which the chair sustained. Hutchison appealed the ruling of the chair. The Senate voted against sustaining the decision of the chair by a vote of 42–57.[28] The Senate thus set a precedent nullifying the provision of Rule XVI.[29]
In 1999, the Hutchison precedent was overturned (and the original effect of Rule XVI restored) when the Senate agreed to S.Res. 160, which states:
Resolved, That the presiding officer of the Senate should apply all precedents of the Senate under rule 16, in effect at the conclusion of the 103d Congress.
1996: FedEx precedent
Rule XXVIII, paragraph 3, of the Standing Rules of the Senate prohibits any matter outside the scope of a conference from being included in a conference report.[30]
In 1996, during consideration of the conference report on the Federal Aviation Reauthorization Act of 1996, Majority Leader Trent Lott raised a point of order that the conference report exceeded the scope of the conference with respect to provisions relating to FedEx. After the point of order was sustained by the chair, Lott appealed the ruling of the chair. The Senate voted against sustaining the decision of the chair by a vote of 39–56.[31] The Senate thus set a precedent nullifying the provision of Rule XXVIII.[29]
In 2000, the FedEx precedent was overturned (and the original effect of Rule XXVIII restored) when Congress passed the Legislative Branch Appropriations Act for fiscal year 2001, which states, in relevant part:[32]
SEC. 903. Beginning on the first day of the 107th Congress, the Presiding Officer of the Senate shall apply all of the precedents of the Senate under Rule XXVIII in effect at the conclusion of the 103d Congress.
2013: Cloture on nominations
On November 21, 2013, Majority Leader Harry Reid raised a point of order that "the vote on cloture under Rule XXII for all nominations other than for the Supreme Court of the United States is by majority vote."[33] The presiding officer overruled the point of order, and the Senate voted 48–52 against sustaining the decision of the chair. The Senate therefore set a precedent that cloture can be invoked on nominations (except to the Supreme Court) by a simple majority, even though the plain text of the rule requires "three-fifths of the senators duly chosen and sworn" to invoke cloture. Three Democrats (Carl Levin, Joe Manchin and Mark Pryor) voted with all Republicans in favor of sustaining the decision of the chair. The text of Rule XXII was never changed.[34]
Although the 60-vote threshold was eliminated for most nominations, nominations are still susceptible to being delayed by filibusters,[35] and 60 votes were still required to invoke cloture on other questions such as legislation and Supreme Court nominations.[36]
Rationale for change
The Democrats' stated motivation for this change was the perceived expansion of filibustering by Republicans during the Obama administration, in particular blocking three nominations to the United States Court of Appeals for the District of Columbia Circuit. Republicans had asserted that the D.C. Circuit was underworked,[37] and also cited the need for cost reduction by reducing the number of judges in that circuit.[38] At the time of the vote, 59 executive branch nominees and 17 judicial nominees were awaiting confirmation.[37]
Prior to November 21, 2013, there had been only 168 cloture motions filed (or reconsidered) with regard to nominations. Nearly half of them (82) had been during the Obama administration.[39] However, those cloture motions were often filed merely to speed things along, rather than in response to any filibuster.[40] In contrast, there were just 38 cloture motions on nominations during the preceding eight years under President George W. Bush.[41] Most of those cloture votes were successful. Obama won Senate confirmation for 30 out of 42 federal appeals court nominations, compared with Bush's 35 out of 52.[41][42]
Regarding Obama's federal district court nominations, the Senate approved 143 out of 173 as of November 2013, compared to George W. Bush's first term 170 of 179, Bill Clinton's first term 170 of 198, and George H.W. Bush's 150 of 195.[41][43] Filibusters were used on 20 of Obama's nominations to district court positions,[44] but Republicans had allowed confirmation of 19 out of the 20 before the nuclear option was invoked.[45]
2017: Cloture on Supreme Court nominations
On April 6, 2017, the Republican-majority Senate invoked the nuclear option[46] and voted 48–52 along party lines[47] against sustaining the decision of the chair on a point of order raised by Majority Leader Mitch McConnell, thus removing the Supreme Court exception created in 2013.[48] This established a new precedent which allowed cloture to be invoked on Supreme Court nominations by a simple majority.[49] The vote came after Senate Democrats filibustered the nomination of Neil Gorsuch to the Supreme Court of the United States.[50]
2019: Postcloture time on low-level nominations
On April 3, 2019, in response to a perceived increase in postcloture filibusters by Senate Democrats on President Trump's executive and judicial nominations, the Republican-majority Senate voted 49–51 to overturn a ruling of the chair and thus set a precedent that postcloture debate on nominations—other than those to the Supreme Court of the United States, to the United States courts of appeals and to positions at Level I of the Executive Schedule—is two hours. All Republicans except Senators Susan Collins and Mike Lee voted against sustaining the decision of the chair.[51]
Proposed use for legislation
Following elimination of the 60-vote rule for nominations in 2013, senators expressed concerns that the 60-vote rule will eventually be eliminated for legislation via the nuclear option.[52]
While President, Donald Trump spoke out against the 60-vote requirement for legislation on several occasions. Then–Senate Majority Leader Mitch McConnell opposed abolishing the filibuster despite Trump's demands, and in April 2017, 61 senators (32 Republicans, 28 Democrats, and one independent)[53] signed a letter stating their opposition to abolishing the filibuster for legislation.[54] On January 21, 2018, Trump said on Twitter that if the shutdown stalemate continued, Republicans should consider the "nuclear option" in the Senate.[55] He repeated the call on December 21, 2018, with a fresh shutdown looming.[56]
Concerns about abolishing the filibuster through the nuclear option were reiterated in 2021 as the Democratic-majority Senate could attempt to eliminate the filibuster through the nuclear option.[57] On January 3, 2022, Senate Majority Leader Chuck Schumer announced that the Senate would vote on using the nuclear option to reform the filibuster in order to pass his party's election reform legislation.[58][59] On January 19, 2022, Schumer made a point of order that would have allowed a 'talking filibuster' on a voting rights bill without any other dilatory measures. The Senate voted 52–48 to sustain the decision of the chair overruling the point of order. Senators Joe Manchin and Kyrsten Sinema voted with all Republicans in favor of sustaining the decision of the chair..[58]
As of July 2023[update], the nuclear option has not been used to abolish the filibuster on legislation.[60]
Other uses of "nuclear option"
Beyond the specific context of the U.S. Senate, the term "nuclear option" has come to be used generically for a procedural maneuver with potentially serious consequences, to be used as a last resort to overcome political opposition. The term has been used in connection with procedural maneuvers in various state senates.[61][62][63][64][65]
In a 2005 legal ruling on the validity of the Hunting Act 2004[66] the UK House of Lords, sitting in its judicial capacity, used "nuclear option" to describe the events of 1832, when the then-government threatened to create hundreds of new Whig peers to force the Tory-dominated Lords to accept the Reform Act 1832. (Nuclear weapons were not theorized until the 20th century, so the government's threat was not labeled as "nuclear" at the time.)
^Oleszek, Walter J. (February 23, 2016). Amending Senate Rules at the Start of a New Congress, 1953-1975: An Analysis with an Afterword to 2015 (Report). Congressional Research Service. pp. 2–3. Archived from the original on May 8, 2022. Retrieved August 13, 2023. In short, the Senate's deletion of the previous question motion from its rules did not give rise to filibusters because the 1806 motion was neither used to end debate nor bring the Senate to a vote on the pending matter.
^Safire, William (March 20, 2005). "Nuclear Options". New York Times. In March 2003, the Mississippi Republican Trent Lott was troubled by the Democrats' use of the threat of a filibuster, or Senate-stopping 'extended debate,' which prevented a vote on some of President Bush's judicial nominees. Charles Hurt of The Washington Times wrote that Lott told him of a plan that might allow Republicans to confirm a judge with a simple 51-vote majority – rather than the 60 votes needed under the present rules to 'break' a filibuster. Lott 'declined to elaborate, warning that his idea is "nuclear."' This led Michael Crowley of The New Republic to ask rhetorically: 'What might Lott's 'nuclear' option be?'
^Bolton, Alexander (November 13, 2012). "Dems short on votes for filibuster reform". The Hill. Retrieved November 14, 2012. Supporters call it the constitutional option, but it is well-known as the "nuclear" option for the meltdown in partisan relations that it could affect.
^"Rule XVI and Appropriations". Senate Republican Policy Committee. December 20, 2019. Archived from the original on May 12, 2023. Retrieved July 8, 2023.
Senate Majority Leader Harry Reid (D-Nev.) often files cloture on multiple bills or nominations at once to speed things along even if no one is slowing things down....A number of the cloture motions that Reid has filed were intended to speed things up, to suit his parliamentary preferences....
^Heitshusen, Valerie (April 14, 2017). Senate Proceedings Establishing Majority Cloture for Supreme Court Nominations: In Brief(PDF) (Report). Congressional Research Service. Retrieved September 22, 2020. The presiding officer then put the appeal of the ruling to the Senate for a vote, stating "Shall the decision of the Chair stand as the judgement of the Senate?" On the question of upholding the chair, the Senate voted 48-52, thereby overturning the ruling (and establishing the new precedent).
^"Bradley:Workers' comp overhaul still alive". The Southern Illinoisan. AP. May 31, 2011. Retrieved November 24, 2012. Bradley says that so-called "nuclear option" is still a possibility. The Illinois Senate could vote on it Tuesday, the final day of the legislative session.
M. Gold & D. Gupta, The Constitutional Option to Change Senate Rules and Procedures: a Majoritarian Means to Overcome the Filibuster in the Harvard Journal of Law and Public Policy; 28 Harvard Journal of Law & Public Policy 205 (2004) (arguing that the nuclear/constitutional option it is firmly grounded in Senate history) (PDF file)
