Nuclear Option - Historical Backdrop

Historical Backdrop

The first set of Senate rules included a procedure to limit debate called "moving the previous question." This rule was dropped in 1806 in the misunderstanding that it was redundant. Starting in 1837, senators began taking advantage of this gap in the rules by giving lengthy speeches so as to prevent specific measures they opposed from being voted on, a procedure called filibustering. In 1890, Senator Nelson Aldrich (R-RI) threatened to break a Democratic filibuster of a Federal Election Bill by invoking a procedure called "appeal from the chair." At this time, there was no cloture rule or other regular method to force an immediate vote. Aldrich's plan was to demand an immediate vote by making a point of order. If, as expected, the presiding officer overrules the point, Aldrich would then appeal the ruling and the appeal would be decided by a majority vote of the Senate. (This plan would not work today because appeals from the chair are debatable under modern rules.) If a majority voted to limit debate, a precedent would have been established to allow debate to be limited by majority vote. Aldrich's plan was procedurally similar to the modern option, but it stayed within the formal rules of the Senate and did not invoke the Constitution. In the end, the Democrats were able to muster a majority to table the bill, so neither Aldrich's proposed point of order nor his proposed appeal was ever actually moved.

In 1892, the U.S. Supreme Court ruled in United States v. Ballin that both houses of Congress are parliamentary bodies, implying that they may make procedural rules by majority vote. In 1917, Senator Thomas J. Walsh contended the majority of the Senate could revise a procedural rule at any time, despite the requirement of the Senate rules that a two-thirds majority is necessary to approve a rule change. "When the Constitution says, 'Each House may determine its rules of proceedings,' it means that each House may, by a majority vote, a quorum present, determine its rules," Walsh told the Senate. Opponents countered that Walsh's constitutional option would lead to procedural chaos, but his argument was a key factor in the adoption of the first cloture rule later that year. In 1957, Vice President Richard Nixon expressed an opinion that no Senate may constitutionally enact a rule that deprives a future Senate of the right to approve its own rules by the vote of a simple majority. (Nixon made clear that he was speaking for himself only, not making a formal ruling.) Nixon's opinion, along with similar opinions by Hubert Humphrey and Nelson Rockefeller, has been cited as precedent to support the view that the Senate may amend its rules at the beginning of the session with a simple majority vote.

The option was officially moved by Senator Clinton P. Anderson (D-NM) (1963), Senator George McGovern (D-SD) (1967), and Senator Frank Church (D-ID) (1969), but was each time defeated or tabled by the Senate. According to one account, the option was arguably endorsed by the Senate three times in 1975 during a debate concerning the cloture requirement. A compromise was reached to reduce the cloture requirement from two-thirds of those voting (67 votes if 100 Senators were present) to three-fifths of the current Senate (60 votes if there were no current vacancies) and also to approve a point of order revoking the earlier three votes in which the Constitutional option had been invoked. (This was an effort to reverse the precedent that had been set for cloture by majority vote).

Senator Robert Byrd (D-WV) was able to effect rule changes by majority vote four times when he was majority leader despite the formal requirement for a two-thirds vote: to ban post-cloture filibustering (1977), to adopt a rule to limit amendments to an appropriations bill (1979), to allow a senator to make a non-debatable motion to bring a nomination to the floor (1980), and to ban filibustering during a roll call vote (1987). These actions have been cited as precedent for the nuclear option.