The Senate’s “Nuclear Option” — How it Works and Why it Matters

Charles S. Konigsberg served as Chief Counsel on the Minority Staff of the Senate Rules Committee, General Counsel at the Senate Finance Committee, counsel at the Senate Budget Committee, and Senate liaison at the White House Office of Management and Budget.

We are about to witness a major change in how the U.S. Senate operates – the so-called “nuclear option.”  Following is an explanation of “how it works” and “why it matters.”

What is the Nuclear Option?

The House of Representatives is designed to advance the will of the majority in a swift and efficient manner.  When major legislation is taken up, the Speaker-appointed Rules Committee determines how many hours the measure will be debated and which amendments, if any, can be offered.

By contrast, the Senate is a radically different institution, with unlimited debate and unlimited amendments – designed to ensure that minority points of view can be considered.  Under Senate rules, votes do not occur on a measure until all amendments have been offered and all debate is completed.

A filibuster is simply the continuation of debate to prevent a vote.  (A major exception, discussed in an earlier blog, is a “Budget Reconciliation Bill” initiated in the annual Budget Resolution, which permits filibuster-proof consideration of changes to entitlement programs and tax legislation.)

Ordinarily, the only way to stop a filibuster is by limiting debate with a procedure known as “cloture” – which requires a three-fifths vote, 60 out of 100 Senators.  In recent years, with increasing partisanship and ideological conflict, Senators often presume that controversial legislation will be filibustered and that 60 votes will be required to bring debate to an end and reach a final vote on a measure.   

On November 21, 2013, the Senate created a major exception to the 60-vote cloture threshold. In a procedural vote, the Senate adopted a precedent that ending a filibuster on a President’s executive and judicial appointments would only require a simple majority of Senators voting. The precedent specifically excluded nominations to the Supreme Court, which still requires 60 votes to end a filibuster.

What made this 2013 precedent “nuclear,” is the way the Rules change was accomplished.  The Senate ignored its own Standing Rules requiring that: (i) changes to the Rules can occur only with prior written notice; and (ii) debate on a Rules change can only be brought to a close upon a two-thirds vote of the Senate (67 Senators if all are present).  The Standing Rules very deliberately set a high threshold for changing the rules.

In essence, Senators supporting the 2013 nuclear option said the following, “Even though the Senate’s Standing Rules require 60 votes to end a filibuster, from now on, only a simple majority will be required for executive and judicial appointments – except Supreme Court nominees – and we are doing this without following the requirements for a Rules change.”

Fast forward to 2017.  The Majority in the Senate lacks 60 votes to end a filibuster of the Neil Gorsuch nomination to the Supreme Court.  Senate Majority Leader McConnell said on April 4, 2017 he has the votes to go nuclear – expanding the 2013 precedent so that cloture for all executive branch and judicial nominations including Supreme Court nominees will henceforth require only a simple majority.

Why Does this Matter?

1. Democratic institutions are based on a solid commitment to the Rule of Law. When Senators vote to ignore their own Standing Rules, it diminishes the institutional integrity of the Senate and the Rule of Law.  The action in 2013 undermined the Standing Rules of the Senate; and “going nuclear” this Friday would extend the damage.

2. At a time of elevated partisanship and ideological division, the 60-vote threshold for cloture can serve a useful public purpose – requiring some degree of bipartisanship. It is not unreasonable to suggest that a nomination to the Supreme Court is of such profound and lasting importance to the nation, that a 60-vote threshold is appropriate and sensible.

3. Going nuclear pushes the Senate further down a slippery slope. Will the demise of the 60-vote requirement to invoke cloture on executive and judicial appointments lead to a similar erosion of the rules for cloture on legislation?   One hopes not, and Senate Majority Leader McConnell says “there’s no sentiment to change the legislative filibuster,” but this institutional drift away from comity between the Majority and Minority parties is reason for concern.

For additional background, click here to read the nonpartisan Congressional Research Service report.