On Thursday, Senate Majority Leader Harry Reid (D-Nev.) scheduled cloture votes to end debate on seven of President Obama’s appointees. He is setting the stage to implement what is referred to as the “nuclear option” to change Senate rules so that filibusters on executive nominations can be ended with only 51 votes, rather than the current 60 required.
So what exactly is this nuclear option? The answer is complicated, procedural, theoretical, and confusing.
The nuclear option, so named by Sen. Trent Lott (R-Miss.) in 2003, is a basically a term encompassing attempts to change Senate rules without the 2/3 majority that is traditionally required. It is sometimes referred to as the constitutional option (a sort of death tax/estate tax distinction).
In the Senate there are rules and precedents. The Senate can pass rules with a majority vote, but votes on Senate rule changes, like most other kinds of Senate votes, can be filibustered. The filibuster can be ended by a cloture motion, but to pass a cloture motion on a rule change, a two-thirds majority is required rather than the three-fifths majority generally required for all other filibusters. So while technically a majority can change the rules of the Senate, in reality a two-thirds majority is required.
However, the Senate has the constitutional right to make its own rules, and thus we have the foundation for one of the “nuclear” options.
Many Senate scholars have argued that on the first day of the session, new rules can be made and potential filibusters can be overturned with a simple majority vote. The argument is that carrying over the old two-thirds cloture rules on the first day of a new session encroaches on the new Senate’s right to make rules for itself. he counter-argument to this argument is that since only one-third of the Senate changes each session, a quorum is maintained and thus the old rules continue.
However, we are currently past the first day of the Senate's session (which occurred this past January), so if Reid uses the nuclear option in an attempt to change the filibuster rules, it would have to come in the form of a second option, a point of order.
It would possibly work something like this:
During the filibuster on a presidential appointment a senator would call for a point of order and give a reading of the rules that essentially says, “We need to stop talking about this.” One possible claim would be that filibustering nominees goes against the president's constitutional power to make appointments with the “advice and consent of the Senate.” This claim would offer an interpretation of consent as the consent of a simple majority of senators.
The presiding officer could rule from the chair in favor of the point of order. At this point a senator could try to appeal the ruling. The appeal would generally be up for debate and a vote. However, another senator could motion to table the appeal. That motion to table would come to an immediate vote and could pass by a simple majority. With the appeal tabled, the presiding officer's ruling on the point of order would establish a new precedent.
Initially, the nuclear option would just be used to end filibusters on presidential nominees. However, it is doing this by changing the way the Senate rules are made, and once those floodgates open, it’s hard to be sure exactly how often and how dramatically the option may be used to change procedure.
It is also uncertain exactly what the minority party would do, but generally the expectation is that they will use every other tactic available to delay progress in the Senate — and there are many. Thus the term the “nuclear option” is meant to convey the extensive escalation in procedural battles that such a maneuver would initiate. Just as nuclear bombs changed warfare, so some fear the nuclear option might change our legislative landscape.
This point is the kind of nuclear option that then-Senate Majority Leader Bill Frist (R-Tenn.) threatened to use in 2005 to change cloture rules on presidential judicial nominations to allow simple majority approval. Back then the tables were reversed, with the Democratic minority holding up President Bush’s appointments. Ultimately the bipartisan “Gang of 14” reached a compromise at the last possible second.
The point-of-order version is also the kind of nuclear option that Reid is threatening to use on Tuesday to change cloture rules on presidential nominations to allow simple majority approval. The Senate is having a closed meeting on Monday to look for potential compromises. If used, the nuclear option will likely lead to a serious escalation of procedural warfare in the Senate.
So what do I think will happen? I would argue that the nuclear option has been useful as a threat in the past because the minority party knew that the majority had the votes to use it, while the majority party understood that using it would be a drastic move.
The best-case scenario is that all this would be resolved on Monday. However, it is unclear whether Reid actually has the votes to invoke the nuclear option. With only 54 Senate Democrats, and some already saying they don’t support the move, Reid may be bluffing. This makes it less likely that Republicans will feel compelled to compromise on appointments. Senate Minority Leader Mitch McConnell (R-Ky.) may call Reid’s bluff, suspecting that he doesn’t have 51 votes. If he’s wrong and Reid has the votes to bring about the nuclear option, the Senate will descend into procedural warfare. If he is right then Reid will look silly for making a threat he couldn’t carry out, President Obama's appointment w on’t go through, and the current calamity continues as usual.