Nuclear Option - Changes To Senate Rules

Changes To Senate Rules

The Senate does not restrict the total time allowed for debate; instead, a motion for cloture must be passed to end debate. A three-fifths majority of all senators duly sworn (60 senators, assuming there is no more than one vacancy) is required to approve the cloture motion and proceed to a vote on the main issue. Thus, although a bill might have majority support, a minority of 41 senators can prevent a final vote, effectively defeating the bill. In practice, if it is clear that the motion for cloture will not carry, the bill may simply be tabled so that the Senate can conduct other business. From time to time, however, the margin of votes for cloture may be very close, and the minority may wish to stall the cloture vote for as long as possible. Because debate time is unlimited, senators may simply speak endlessly on the Senate floor to prevent a vote from taking place; this tactic is known as a filibuster.

Depending on the number of all 100 senators "duly chosen and sworn" who are actually "present and voting", an amendment (change) to U.S. Senate Rule XXII can be difficult. Paragraph 2 of said rule states that "to amend the Senate rules...the necessary affirmative vote shall be two-thirds of the Senators present and voting." This means 67 senators if all 100 senators are "present and voting", but only 34 senators if under Rule VI, the minimum quorum of 51 senators, i.e., "a majority of the Senators duly chosen and sworn" is "present and voting."

A point of order is a parliamentary motion used to remind the body of its written rules and established precedents, usually when a particular rule or precedent is not being followed. When a senator raises a point of order, the presiding officer of the Senate immediately rules on the validity of the point of order, but this ruling may be appealed and reversed by the whole Senate. Ordinarily, a point of order compels the Senate to follow its rules and precedents; however, the Senate may choose to vote down the point of order. When this occurs, a new precedent is established, and the old rule or precedent no longer governs Senate procedure. Similarly, it is possible to raise a point of order and state that the standard procedure of the Senate is actually different than the current rules and precedents suggest. If this point of order is sustained, a new precedent is established, and it controls Senate procedure thenceforth.

The nuclear option is a potential response to a filibuster or other dilatory tactic. A senator makes a point of order calling for an immediate vote on the measure before the body, outlining what circumstances allow for this. The presiding officer of the Senate, usually the vice president of the United States or the president pro tempore, makes a parliamentary ruling upholding the senator's point of order. The Constitution is cited at this point, since otherwise the presiding officer is bound by precedent. A supporter of the filibuster may challenge the ruling by asking, "Is the decision of the Chair to stand as the judgment of the Senate?" This is referred to as "appealing from the Chair." An opponent of the filibuster will then move to table the appeal. As tabling is non-debatable, a vote is held immediately. A simple majority decides the issue. If the appeal is successfully tabled, then the presiding officer's ruling that the filibuster is unconstitutional is thereby upheld. Thus a simple majority is able to cut off debate, and the Senate moves to a vote on the substantive issue under consideration. The effect of the nuclear option is not limited to the single question under consideration, as it would be in a cloture vote. Rather, the nuclear option effects a change in the operational rules of the Senate, so that the filibuster or dilatory tactic would thereafter be barred by the new precedent.

The term "nuclear option" refers to any plan to achieve filibuster reform without the support of a supermajority. After her election to the Senate in 2012, Elizabeth Warren (D.-Mass.) declared that on her first day as a senator she would attempt to amend the Senate rules in this way: “On the first day of the new session in January, the senators will have a unique opportunity to change the filibuster rule with a majority vote, rather than the normal two-thirds vote. The change can be modest: If someone objects to a bill or a nomination in the United States Senate, they should have to stand on the floor of the chamber and defend their opposition.”