Changing Senate Rules: The "Constitutional" or "Nuclear" Option
Publication Date: April 2005
Publisher(s): Library of Congress. Congressional Research Service
Recent reports indicate possible attempts to curtail the use of filibusters in the Senate, perhaps in the 109th Congress. Some have suggested that proponents of this idea may invoke something called the "nuclear" or "constitutional" option in Senate floor procedure to try to end a filibuster without the need for 60 votes or to amend the cloture rule (Rule XXII) itself. No set definition exists for the term "nuclear" or "constitutional" in this context. Because the point of using such an option is to achieve a goal by means lying outside the Senate's normal rules of procedure, it would be impossible to list all the different permutations such maneuvers could encompass. Several likely scenarios that fall into this category are described in this report, followed by a discussion of the possible advantages and disadvantages of using such an approach.
Opponents (and some supporters) of this kind of plan typically refer to it as the "nuclear" option because of the potentially significant result for Senate operations that could follow from its use. The Senate relies heavily on unanimous consent to get its legislative work accomplished. It may be more difficult to achieve unanimous consent in an environment where the minority feels it has lost some of its traditional rights. Supporters of the concept of majority cloture argue that it is a "constitutional" option because they will be making their argument based on a constitutional prerogative or duty of the Senate.
One example of the "constitutional" or "nuclear" option revolves on the argument that, on the first day of a new Congress, Senate rules, including Rule XXII, the cloture rule, do not yet apply, and thus can be changed by majority vote. Under this argument, debate could be stopped by majority vote as well. A Senator would move the adoption of a new rule or set of rules. The new rule or rules would be subject to a majority vote, supporters argue, because the mechanics of cloture as set out in Rule XXII, which requires a supermajority to invoke cloture and end debate, would not yet apply and the Senate would be operating under general parliamentary law. One variation would be a claim that on the opening day of a Congress a simple majority could invoke cloture on the motion to take up a resolution that proposed a rules change, or on the resolution itself. Again, this scenario would rest on the proposition that Rule XXII was not yet in force and did not control action. Senators also could seek to have the 60-vote threshold declared unconstitutional, either for cloture in general, or only as it applies to Senate consideration of presidential nominations, or perhaps a subset of such nominations, such as of federal judges. This scenario might take place in at least two different ways. The presiding officer might make a ruling from the chair, or a Senator could make a point of order from the floor that the supermajority requirement for cloture is unconstitutional.
All these possible scenarios would require that one or more of the Senate's precedents be overturned or interpreted otherwise than in the past.
This report will be updated as events warrant.