The Nuclear Option

Posted: January 3, 2017 by Nazim in Legislation, Politics


No, not that nuclear option. The Nuclear Option is the name given to the an idea conceived by Richard Nixon (sadly, of Watergate fame, despite being otherwise a pretty decent president) that ends the minority’s ability to filibuster in the US Senate, blocking the majority’s ability to pass laws. Normally, changing Senate rules requires 67% of the Senate to approve the change. But even these rule changes can be filibustered, and since the threshold of votes required to approve such changes is higher than usual, the number of senators needed to filibuster it is lower than usual.

Normally, when a bill is introduced to the Senate floor (after it is released from the clutches of a committee), it is discussed until a senator proposes a motion for cloture, which proposes to stop talking about it and take a vote on it. While it only takes half of the senators plus one to approve the bill, it takes 60% of the senate to approve the motion for cloture to end a filibuster (the ongoing discussion).

However, senators can raise a point of order, asking the presiding officer of the Senate (usually the majority party leader in the senate, but, in a case like this, more likely to be the vice-president, who is the boss of the Senate under article 1, section 3 of the Constitution) if a rule is being violated. Specifically, in this scenario, the question could be whether it’s constitutional to require 60% of senators to override a filibuster. And if the response were “Why, by George, I believe it is not,” the rule would be gone – ending the power to filibuster.

This thing could be appealed, but we’re in almost uncharted territory here. The constitution expressly says the Senate can write it’s own rules, as long as they abide the general framework provided, so you’d definitely have to read between the lines to find any argument either way. I say almost uncharted because this “option” has been used at least twice before in 2013. In January, by a vote of 78 to 16, the filibuster was temporarily banned, but only for that session. This change included safeguards, such as requiring the minority leader and seven other minority senators to approve overriding the filibuster. But in November, the ability to filibuster to oppose judicial nominees in District and Circuit courts (basically all courts below the Supreme Court) ended, by a vote of 52 to 48. For those keeping score, both changes were made by Democrats.

So, if the Democrats threaten to filibuster Republican Supreme Court nominees, this will probably come up. However, Republicans are likely to find themselves in the minority again at some point, so some may think that they might hesitate to do something this rash. However, the Republican-controlled legislature in NC just dramatically curtailed the Democratic governor-elect’s powers, displaying no such hesitation.

The phrase courts love to use when referring to our federal legislature’s behavior is Congress, in its infinite wisdom… We can hope.

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