Why the U.S. Senate Might Choose the Rule-changing 'Nuclear Option'


Senate majority leader Mitch McConnell (R) and Senate minority leader Chuck Schumer. Will the nuclear option be a reality? Mandel Ngan/Bill Clark/Getty
Senate majority leader Mitch McConnell (R) and Senate minority leader Chuck Schumer. Will the nuclear option be a reality? Mandel Ngan/Bill Clark/Getty

Some are calling it the end of the Senate as we know it. Later this week, Senate Republicans, led by Majority Leader Mitch McConnell, will press the big red button on the so-called "nuclear option" to kill Democratic obstruction of Neil Gorsuch, President Donald Trump's pick for the Supreme Court.

The nuclear option deserves its name because it threatens to destroy not only the filibuster of Supreme Court nominees, but any hope of bipartisan cooperation in the Senate, ushering in post-apocalyptic levels of political division on Capitol Hill.

To understand how the nuclear option works, we spoke with Joshua Huder, a senior fellow at the Government Affairs Institute at Georgetown University, a nonpartisan, nonprofit organization that educates government officials and curious journalists on the arcane inner workings of Congress.

According to the current Senate rules, Huder explains, a Supreme Court nominee can only receive an up-or-down, "yea" or "nay" vote after the floor debate in the Senate has officially closed — a process called "cloture." The only way to achieve cloture and move on to the actual vote is to win the support of 60 out of the 100 senators.

The cloture rule gives individual members of the Senate incredible power, even if their party is in the minority. By voting "no" on cloture, they can hold the floor debate open indefinitely, one of a variety of delay tactics that qualify as a filibuster. Historically, this has meant that Senators from opposite sides of the aisle must work with each other to avoid a filibuster and win enough votes to reach the 60-vote supermajority.

"It's been a mechanism that has fostered compromise," says Huder. "Recently, though, it's become something that fosters dysfunction. Filibusters are so prolific that the minority party is blocking everything. Senators are abusing their rights and privileges under the rules."

The nuclear option would put an end to that. By exploiting some loopholes in parliamentary procedure, the nuclear option allows the party in power to lower the cloture requirement to 51 votes, a simple majority. This means that the majority party in the Senate would no longer have to compromise or even talk to the minority members to push through a Supreme Court nominee. For the actual vote on nominees, all you need is a majority to win confirmation.

That's great news when your party is the majority, but what happens when the political winds shift and you're back in the minority?

Ask the Democrats. Back in 2013, it was Democratic Majority Leader Harry Reid who first opened this political Pandora's box by invoking the nuclear option to unblock Republican obstruction of nearly all of President Barack Obama's federal court nominees.

The Democrats stopped short of establishing "majority rule" for Supreme Court openings, but the precedent was set. Now that the Republicans are back in power, they're using Reid's own parliamentary playbook to reinterpret the 60-vote rule once again, this time for nominees to the highest court in the land.

"When Senators support these rule changes — moving from a supermajority to a simple majority — they're essentially giving up power," says Huder. "When the majority of Senate Democrats voted for the nuclear option in 2013, they were saying, 'In exchange for confirming these nominations of a Democratic president, I will give up my future ability to block nominees that I don't agree with.'"

Like most Faustian bargains, the nuclear option can come back to bite you, which is why politicians have wisely avoided it for more than 60 years. Back in the late 1950s, majority senators frustrated by filibusters first floated the idea of what they called the "Constitutional option."

According to a history of rule changes by the Congressional Research Service, the "Constitutional option" was based on a clause in the Constitution (Article 1, Section 5) stating that "Each House may determine the Rules of its Proceedings."

Anti-filibuster types interpreted this clause to mean that senators could vote to change the rules at the start of each new Congress — including the 60-vote cloture — with nothing more than a simple majority. That's exactly what they do in the House of Representatives, Huder says. (Opponents of the Constitutional option say the Senate is a continuing body with continuing rules.)

In 1957, Vice President Richard Nixon weighed in the issue, writing in an advisory opinion, "...the Senate should not be bound by any provision in those previous rules which denies the membership of the Senate the power to exercise its constitutional right to make its own rules."

To be clear, even if the Republicans "go nuclear" for Supreme Court nominations, this doesn't affect Senate filibusters in general or the 60-vote cloture requirement for regular legislation. When a bill comes before the Senate, the sponsoring party will still need a few votes from the opposing side to reach the 60-vote threshold. Could partisan divisions in the Senate ever get so bad that the chamber decides to kill off filibusters altogether?

"I don't think that's going to happen anytime soon," says Huder, finding it hard to imagine a point at which the majority says, "'You know what, there's just too much obstruction and we have to move forward on this crazy thing, of completely undoing the Senate process for the last 200 years.'"



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