Seven Questions You Didn’t Know You Had About the “Nuclear Option”

If you’re like me, over the past week, you have nodded your head wisely when the term “the nuclear option” has come up in water cooler conversation, hoping no one would ask you what you think about it. Below, I unpack in broad strokes what the procedure is and its significance – enough, at least, to help us silent head-nodders slide in a comment or two.

1. What is the nuclear option?

This is how things are supposed to work: something – proposed legislation or the confirmation of a judicial or executive office nominee – is put forth on the Senate floor for a vote. Under Senate Rule XXII (also known as Rule 22), if a senator wants to oppose the rule but doesn’t have a majority vote at his or her back to strike it down, she can use the filibuster as a way to block a final vote on the proposed legislation or confirmation – kind of like staging a strike on a vote.

Once that happens, the Senate has the opportunity to overrule the striking Senator by invoking cloture, which is a fancy term for a vote on whether to force the filibuster to end and have a final vote. (A vote within a vote is kind of like Inception, but nowhere near as fun to watch.) The catch is that under Rule 22, in order to invoke cloture and end a filibuster, you need 3/5 of the Senate.

This is where the nuclear option comes in: 3/5 used to mean 60 votes. Under the new precedent set by the nuclear option, you now only need 51. More on that below.

2. How was the nuclear option created?

Richard Arenberg at The Hill has a good overview on the origin of the rule, as does Georgetown’s Government Affairs Institute.

As with many (most?) moronic decision in the law, the nuclear option is the result of a procedural quirk. I was surprised to learn that it is not some long-standing Senate rule that simply had never been invoked before because it would lead to terrible results.

Nope. It is an interpretation of Rule XXII. Until the new precedent created by the nuclear option, 3/5 was considered to mean 60 votes, because that’s math. (For those of you who are mathematically challenged, like me, 3/5 is 60%. We have 100 senators. 60% of 100 Senators is 60 votes. Bam.)

The nuclear option adopted a tortured interpretation of Rule XXII that found 3/5 to mean 51 votes. Don’t ask me how. I still don’t understand it. But it has something to do with a brilliant Harvard law graduate (ahem, Chuck Schumer) deciding that somehow, “3/5” means “simple majority” (51 out of 100).

One important note here is that the precedent applies only to invoking cloture and ending filibusters of executive and judicial nomination votes. It does not (yet) apply to votes on legislation or on actually amending, as opposed to reinterpreting, Senate rules.

3. Why is it called the “nuclear option”?

It’s called the “nuclear option” because the results of invoking it are potentially very, very bad. Have you ever seen Doctor Strangelove? (I picture Schumer and McConnell riding that nuclear bomb at the end of the movie in tandem, cowboy hats and all.) It’s like mutually assured destruction, except that there’s no tangible threat, like total and immediate annihilation from an actual nuclear attack, to stop our wise leaders in the Senate from destroying their own institution and any semblance of civility and democracy. More on the significance of the rule in Question 4 below.

4. Why should I care?

Because the filibuster is the Senate’s most important procedural rule. It gives the minority party a voice in our government, so that the majority is always checked, like a mini-version of our bigger-picture, three-branch system of checks and balances. It also gives any single Senator, whether in the minority or majority, who doesn’t like what’s up for vote on the floor to challenge proposed legislation. But don’t just take it from me.

Joshua Huder at the Rule 22 Blog (guess what they write about) said it well:

The filibuster empowers all senators. It gives senators – majority and minority alike – the ability to affect all policies that come before the Upper Chamber. If a senator doesn’t like bill language, they can filibuster, force an amendment, force a compromise, and otherwise alter the text and intent of that legislation. If a bill adversely affects their state, they have significant leverage to kill it or at least mitigate its impact.

And at the Times, Matt Flegenheimer wrote:

In deploying this so-called nuclear option, lawmakers are fundamentally altering the way the Senate handles one of its most significant duties, further limiting the minority’s power in a chamber that was designed to be a slower and more deliberative body than the House.

The nuclear option effectively gives the majority party in the Senate near-complete control over electing judges and cabinet members and destroys any meaningful opportunity for the minority party to have a say on who will step up to some of our most important civic posts. In doing so, it may, in the long run, exacerbate hyper-partisanship and politicization and lead to a further breakdown of reasoned governance and institutional stability.

5. If it’s so bad, can’t it be reversed?

You’re going to hate me for this one, but it depends. Very few rules in the Senate, apart from what’s written into the Constitution, are set in stone. As the Rule 22 Blog notes, Rule XXII was adopted in the early 1900’s and has been amended since then. So nothing procedurally prevents the Senate from reverting back to the pre-nuclear 60 vote minimum.

Do you see where I’m going with this? Amending Rule XXII rests on two parties that have each, in the past four years, elected to go nuclear on each other. Considering where we are politically at the moment, it’s hard to imagine the Senate suddenly dropping its internal civil war and voting to re-draft Rule XXII.

6. I heard the Democrats did it first. Why is everyone blaming Mitch McConnell and the Republicans?

Yes, the Democrats first exercised the nuclear option in 2013. They chose political expediency over the long-term welfare of the Senate as a balancing institution. But in setting the new precedent in 2013, the Dems applied the 51-vote standard only on votes for executive office picks and lower-court judicial nominees. They left Supreme Court nominees out because the Court is our last frontier of checks and balances. But that was small comfort, even then.

From the Washington Post in 2013:

In the long term, the rule change represents a substantial power shift in a chamber that for more than two centuries has prided itself on affording more rights to the minority party than any other legislative body in the world. Now, a president whose party holds the majority in the Senate is virtually assured of having his nominees approved, with far less opportunity for political obstruction.

Now that Republicans have extended the precedent to include Supreme Court nominees, they have also opened the door to extending the extremities of hyper-partisanship to the Court, which is likely, in the long run, to exacerbate the political divide currently tearing apart domestic politics.

I find them both equally responsible. That’s how nuclear proliferation works – one side builds a bomb and the other, frightened of losing control or power or everything, follows. No one is blameless here and both parties should be ashamed of themselves.

7. So what can we do to prevent the Supreme Court from becoming more politicized?

One interesting solution from Elie Mystal at Above the Law is to stack the Court with more justices – 19, for example, and rotate their assignments when they’re not called to sit en banc.

The benefit, per Mystal:

It wouldn’t make any sense to filibuster a qualified candidate, or refuse to hold a hearing on a president’s choice, because over the course of 19 people evolving and dying and retiring, no one justice would be indispensable. No one person would hold the future of, say, voting rights on their aging shoulders. The Supreme Court would still have a lot of power, but the individual justices would have less power. Which would be kind of nice since they are unelected, unaccountable, and appointed for life.

This has worked for some intermediate appellate courts, and it seems like it could work for the Court in theory, though in practice it would be nearly impossible to make it happen in the current political climate.

Yours truly, one confounding procedural interpretation at a time,