Nuclear option
This obviates the usual requirement for a two-thirds majority to invoke cloture on a resolution amending the Standing Rules.
*** Under the precedent set by the Senate today, November 21, 2013, the threshold for cloture on nominations, not including those to the Supreme Court of the United States, is now a majority.
[8] Once the presiding officer rules on the point of order, if the underlying question is nondebatable, any appeal is decided without debate.
[12] Thus, although a measure might have majority support, opposition from or absence by at least 41 senators can effectively defeat a bill by preventing debate on it from ending, in a tactic known as a filibuster.
In the modern Senate, this means that most measures now typically requires 60 votes to advance, unless a specific exception limiting the time for debate applies.
[12] Republican Senator Ted Stevens suggested using a ruling of the chair to defeat a filibuster of judicial nominees in February 2003.
Weeks later, Senator Trent Lott coined the term nuclear option in March 2003 because the maneuver was seen as a last resort with possibly major consequences for both sides.
The maneuver was brought to prominence in 2005 when Majority Leader Bill Frist threatened its use to end Democratic-led filibusters of judicial nominees submitted by President George W. Bush.
[26] On July 16, the Senate Democratic majority came within hours of using the nuclear option to win confirmation of seven of President Obama's long-delayed executive branch appointments.
The confrontation was avoided when the White House withdrew two of the nominations in exchange for the other five being brought to the floor for a vote, where they were confirmed.
[28] In 1995, during consideration of the Emergency Supplemental Appropriations and Rescissions for the Department of Defense to Preserve and Enhance Military Readiness Act of 1995, Senator Kay Bailey Hutchison offered an amendment that would have changed existing law regarding endangered species, therefore violating Rule XVI.
In 2000, the FedEx precedent was overturned (and the original effect of Rule XXVIII restored) when Congress passed the Legislative Branch Appropriations Act for fiscal year 2001, which states, in relevant part:[33]SEC.
Beginning on the first day of the 107th Congress, the Presiding Officer of the Senate shall apply all of the precedents of the Senate under Rule XXVIII in effect at the conclusion of the 103d Congress.On November 21, 2013, Majority Leader Harry Reid raised a point of order that "the vote on cloture under Rule XXII for all nominations other than for the Supreme Court of the United States is by majority vote.
Three Democrats (Carl Levin, Joe Manchin and Mark Pryor) voted with all Republicans in favor of sustaining the decision of the chair.
[42][44] Filibusters were used on 20 of Obama's nominations to district court positions,[45] but Republicans had allowed confirmation of 19 out of the 20 before the nuclear option was invoked.
[46] On April 6, 2017, the Republican-majority Senate invoked the nuclear option[47] and voted 48–52 along party lines[48] against sustaining the decision of the chair on a point of order raised by Majority Leader Mitch McConnell, thus removing the Supreme Court exception created in 2013.
[50] The vote came after Senate Democrats filibustered the nomination of Neil Gorsuch to the Supreme Court of the United States.
[51] On April 3, 2019, in response to a perceived increase in postcloture filibusters by Senate Democrats on President Trump's executive and judicial nominations, the Republican-majority Senate voted 51-49 to overturn a ruling of the chair and thus set a precedent that postcloture debate on nominations—other than those to the Supreme Court of the United States, to the United States courts of appeals and to positions at Level I of the Executive Schedule—is two hours.
[59][60] On January 19, 2022, Schumer made a point of order that would have allowed a 'talking filibuster' on a voting rights bill without any other dilatory measures.
Senators Joe Manchin and Kyrsten Sinema voted with all Republicans in favor of sustaining the decision of the chair.
[61] In September 2024, then Vice President and presidential candidate Kamala Harris called for ending the filibuster to enact abortion legislation.
[64][65] Beyond the specific context of the U.S. Senate, the term "nuclear option" has come to be used generically for a procedural maneuver with potentially serious consequences, to be used as a last resort to overcome political opposition.
[66][67][68][69][70] In a 2005 legal ruling on the validity of the Hunting Act 2004[71] the UK House of Lords, sitting in its judicial capacity, used "nuclear option" to describe the events of 1832, when the then-government threatened to create hundreds of new Whig peers to force the Tory-dominated Lords to accept the Reform Act 1832.
