What would happen after the Senate's "nuclear option?"
January 20, 2010 8:52 AM   Subscribe

The United State's Senate's "nuclear option" is, as far as I can tell, the threat of the majority of Senators using a Point of Order vote to claim that filibustering is unconstitutional. Republicans threatened to do it in 2005, and now there are rumors of the Democrats thinking about the same thing. My questions: If this happened, would it get reviewed by the Supreme Court? Would the filibuster be gone for good? And, if it is unconstitutional, why is getting rid of it such a demonized option?
posted by Damn That Television to Law & Government (26 answers total) 5 users marked this as a favorite
 
I don't think the "nuclear option" claims that the filibuster is unconstitutional. It is just a somewhat convoluted way to use senate procedure to sidestep filibuster.

To dumb it down quite a bit, this is my understanding:

1. Move to vote on bill
2. >40 senators filibuster
3. Maj leader calls for "point of order" calling for the end of debate
3a. Point of order is approved by Veep
4. Presumably, a (Min) senator appeals point of order
5. Maj leader brings #4's appeal to the full senate for a vote

The full vote on the appeal requires only a simple majority to pass, and thus filibuster is broken. I don't think it has anything to do with constitutionality, and thus the SCOTUS would not get involved and the filibuster would not be eliminated forever.

Someone feel free to step in if I've gotten anything wrong.
posted by jckll at 9:01 AM on January 20, 2010


The Wikipedia article seems pretty comprehensive.
The nuclear option is used in 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.
Political considerations are why this is unlikely to happen; it becomes easy to spin it as "cheating" and "ramming an unpopular bill through the senate", regardless of which party is doing it, or whether the bill is actually unpopular.
posted by jenkinsEar at 9:03 AM on January 20, 2010


Ah, so it appears I got the procedure right but the implications wrong! My apologies.
posted by jckll at 9:06 AM on January 20, 2010


I don't think it is unconstitutional, afaik there is nothing at all about filibustering in the Constitution. It (again, as far as I know) is simply a procedure the Senate currently has in place. Why it is in place: here is a decent history of it. In general I think of it as protection that the majority does not run roughshod over the minority, and to be frank, that is not a bad idea. In my opinion though the republicans have systematically abused this over the last year, the scale of what they are doing is pretty unheard of. So, personally I reluctantly agree with the idea of getting rid of it at this time. It will definitely cause the Democrats headaches down the line, but our current situation is pretty out of whack right now.
posted by edgeways at 9:08 AM on January 20, 2010


First of all, it's helpful to understand the history of the filibuster in the US.

Most senate rules aren't set forth in the constitution, they rely on precedent. Basically, the constitution allows them a fair amount of leeway in how they conduct their business. One of these longstanding traditions is the filibuster. Originally, it was a loophole that allowed any single person to hold up debate by refusing to yeiild the floor. As long as they kept talking, nothing could be done. In the early 19th century, this rule was amended to allow for cloture if 3/5 of the senators voted for it.

Another senate rule states that 2/3 of the body (67 senators) must agree on any rule change. However, there may be a loophole (the so-called "nuclear option"). It hinges on interpreting the part of the constitution which states that the President can name judges with the advice and consent of the Senate. The (somewhat shaky) reinterpretation would be that "consent" means "consent of the majority of the members". Since the constitution takes precedence over senate rules, the filibuster rule could be reinterpreted by a simple majority, deemed unconstitutional, and thrown out.

Removal of the filibuster is demonized because it's a useful check on the power of the majority. In the past, it was used on only most contentious of issues, and most senators would vote for cloture, even if they opposed the bill. Over the past decade, increased polarization has led the minority party to threaten filibusters against damn near EVERY bill. This effectively grinds the legislature to a halt. I think there's certainly an argument to be made that the founders did not intend a supermajority to be encessary for passage of bills in the Senate.
posted by chrisamiller at 9:17 AM on January 20, 2010


If this happened, would it get reviewed by the Supreme Court?

Almost certainly not. Each chamber decides its own rules, and the boundaries around this particular sandbox are like galactic wide.

Would the filibuster be gone for good?

For good is a long time, so probably not.

And, if it is unconstitutional, why is getting rid of it such a demonized option?

First, it isn't unconstitutional, so this is sort of like asking "If Senators are actually all shaved sasquatches, why is the nuclear option demonized?" Claiming that it is, in some circumstance, unconstitutional is purely an empty rhetorical claim made only for procedural purposes.

The answer depends on whose ox is being gored. When a majority of senators would otherwise vote for stuff you like, like health care reform, the filibuster is a stupid, obstructionist relic. When a majority of senators would otherwise vote for stuff you dislike, like yet another creepy anti-choice conservative nominee to a district or circuit court, the filibuster is a vital check on majority tyranny.

It's demonized because getting rid of it seems like short-term thinking.
posted by ROU_Xenophobe at 9:24 AM on January 20, 2010


So to clarify (for myself - sorry to piggyback). If this happened then the filibuster itself would no longer be an option on any issue?
posted by bitdamaged at 9:26 AM on January 20, 2010


So to clarify (for myself - sorry to piggyback). If this happened then the filibuster itself would no longer be an option on any issue?

Unless it was reinstated, probably by the same procedure used to remove it. (Oops! It's constitutional again!)
posted by chrisamiller at 9:30 AM on January 20, 2010


Unless it was reinstated, probably by the same procedure used to remove it. (Oops! It's constitutional again!)

Can that be done, though? Once it's reinstated the nuclear option would be gone forever, right? All decisions now must now pass a filibuster according to their own rules. I always got the impression that it's a neat trick, too bad you can only do it once.
posted by FuManchu at 9:36 AM on January 20, 2010


If this happened then the filibuster itself would no longer be an option on any issue?

It would depend entirely on how the nuclear option was implemented. In the version the Republicans talked about, it would have been limited to judicial appointments, and the filibuster would have remained in full force for all other policies.
posted by ROU_Xenophobe at 9:45 AM on January 20, 2010


It's demonized because getting rid of it seems like short-term thinking.

Can't the same argument be made though for the overuse of filibuster and cloture? Recent trendlines show a very sharp increase in the growth of Senate filibusters. Might the 'nuclear option' now be a sensible reaction to the over-use of a certain parliamentary tactic? Canada also used to have similar vote-delaying tactics in all levels of parliament, but in almost every recent case, majority motions have been asserted to break them. The politics of this have played out as majorities should be able to rule.

As a foreigner, I obviously don't have a full appreciation for the American political factors at play in this instance, but surely, filibustering almost everything will need some sort of procedural counter.
posted by bonehead at 9:53 AM on January 20, 2010


It's a pretty silly procedural roadblock, if you ask me, as I don't think not having a filibuster would result in the minority being railroaded. There are still moderates who wouldn't vite for things, etc.

That being said, I think the whole reason neither party would get rid of the filibuster is because it's effective, and each party knows there is a point in the future when they will be in the minority and will want to have it around. It's not a constitutional issue, but a practical one.
posted by elder18 at 10:06 AM on January 20, 2010


"The Senate was not designed by the founders or the Constitution to be a strictly majoritarian institution. To the contrary, the genius of the Framers at the Constitutional Convention was to construct a House of Representatives, structured on majoritarian principles with representatives voting on behalf of relatively equal numbers of constituents, and the Senate using different principles. The Senate has always had two Senators for each State regardless of size. Thus, small States like Vermont and Rhode Island and less populous States like Wyoming, Idaho and Alaska each have equal representation with California, Texas and New York. The Senate and the House are not the same and were not intended to be the same. They were designed to be complimentary institutions of government to form a balanced legislature. I understand why proposals like S. Res. 138 might appeal to newer Republican Senators and to former House Members who are now Republican in the Senate but I fear it would represent another ill-advised step to change the Senate into a second House of Representatives. The Constitution did not assign the advice and consent role to the House but to our distinctive body, the Senate. The Senate has many distinctive traditions including, to me, one of the most significant--that smaller States have a larger role to play in the Senate than in the House."

- Democratic Senator Pat Leahy (then in the minority), defending the filibuster in May, 2003. Back then, the Republicans were merely trying to limit filibusters on Presidential nominees, not ordinary legislation. (Link here)
posted by BobbyVan at 10:47 AM on January 20, 2010


Ah yes, and as to why "getting rid of it [is] such a demonized option," adding to BobbyVan's quote I'll add the wise words of Sir Thomas More (or rather Robert Bolt, I guess):

Roper: So now you'd give the Devil benefit of law!
More: Yes. What would you do? Cut a great road through the law to get after the Devil?
Roper: I'd cut down every law in England to do that!
More: Oh? And when the last law was down, and the Devil turned round on you — where would you hide, Roper, the laws all being flat? This country's planted thick with laws from coast to coast — man's laws, not God's — and if you cut them down — and you're just the man to do it — d'you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake.

The Devil here clearly being the Republicans

God I love that quote
posted by FuManchu at 11:03 AM on January 20, 2010 [2 favorites]


I think that argument for the unconstitutionality of the filibuster primarily rests on the fact that the Constitution assigns the vice-president the power to break ties in the Senate chamber. Accordingly, the framers didn't picture a circumstance where it would routinely take 60 votes to get anything does. The filibuster might not be unconstitutional per se, but the way it is being wielded in this era is clearly outside of how the founders intended the Senate to function. There are already enough hedges against strict majoritarian rule without creating another.

Since parties very rarely have 60 members in the Senate, the evolution of the filibuster is making it difficult to get anything significant done at all.
posted by Pater Aletheias at 11:36 AM on January 20, 2010


why is getting rid of it such a demonized option?

Along with what others have said about the shortsightedness of its removal, I think the general public has a romantic notion of the filibuster. Mr. Smith Goes to Washington, and all - it'd be easy to spin its removal into something like "silencing the little guy who's just standing up for what he believes in!"
posted by Solon and Thanks at 12:48 PM on January 20, 2010


If this happened, would it get reviewed by the Supreme Court?

The Supreme Court has a long-established principle of staying away from "political questions" that are "textually committed to another branch". Which, of course, raises the question of what could be done with a Senate that voted itself an 80-vote threshold on cloture, and basically turned the House into a rubberstamp chamber.

Old constitutions and Anglo-American jurisprudential traditions are funny that way.
posted by holgate at 12:56 PM on January 20, 2010


Article I, Section 5 says, "Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two-thirds, expel a Member."

The filibuster is not unconstitutional because it falls under the Senate's "Rules of Proceedings". In principle, the House could institute a similar rule, and in fact the Senate could change the filibuster rule or do away with it entirely.

Which has happened. In 1975 the Senate changed the rule so that it took 60 votes to invoke cloture instead of the previous 67. (In other words, so that it it took 41 votes to filibuster instead of 34.)
posted by Chocolate Pickle at 1:02 PM on January 20, 2010 [1 favorite]


Which, of course, raises the question of what could be done with a Senate that voted itself an 80-vote threshold on cloture, and basically turned the House into a rubberstamp chamber.

The answer, ultimately, is that the voters would (or would not) respond. In such an extreme case the constitutional resort is that the voters get pissed off and replace nearly all the members of both chambers, and the new bodies then revert the rules.

The main reason that the Supreme Court usually stays out of these kinds of issues is because they should be decided by the voters.
posted by Chocolate Pickle at 1:05 PM on January 20, 2010


In such an extreme case the constitutional resort is that the voters get pissed off and replace nearly all the members of both chambers, and the new bodies then revert the rules.

Which is easier to do in, say, Australia, than the US. If a constitution falls in the forest and there's no-one to care about it...
posted by holgate at 2:11 PM on January 20, 2010


From wikipedia:
"A filibuster can be defeated by the majority party if they leave the debated issue on the agenda indefinitely, without adding anything else. Indeed, Strom Thurmond's own attempt to filibuster the Civil Rights Act was defeated when Senate Majority Leader Mike Mansfield refused to refer any further business to the Senate, which required the filibuster to be kept up indefinitely. Instead, the opponents were all given a chance to speak, and the matter eventually was forced to a vote. Thurmond's afore-mentioned stall holds the record for the longest filibuster in U.S. Senate history at 24 hours, 37 minutes.

Even if a filibuster attempt is unsuccessful, the process takes valuable floor time. In recent years the majority has preferred to avoid filibusters by moving to other business when a filibuster is threatened and attempts to achieve cloture have failed.

In the modern filibuster, the senators trying to block a vote do not have to hold the floor and continue to speak as long as there is a quorum. In the past, when one senator became exhausted, another would need to take over to continue the filibuster. Ultimately, the filibuster could be exhausted by a majority who would even sleep in cots outside the Senate Chamber to exhaust the filibusterers. Today, the minority just advises the majority leader that the filibuster is on. All debate on the bill is stopped until either cloture is voted by three-fifths (now 60 votes) of the Senate. Some modern Senate critics have called for a return to the old dramatic endurance contest but that would inconvenience all senators who would have to stay in session 24/7 until the filibuster is broken.[26]"


So why can't the Democrats use one of those two methods? (refusing to introduce other business, or at least making the idiots spend some effort to filibuster).
posted by jacalata at 2:36 PM on January 20, 2010


Speaking as a Brit here, so a lot of the details goes way above my head.

I thought the idea of the fillibuster was not to prematurely cut off debate, i.e. give the debate an artificial time deadline.
Which is all well and good, until one side (or the other) decides that they will just talk it out. Which appears to be the way both sides have behaved in the past few decades.

I would imagine from a PR point of view, you would need to be able to distinguish between these two cases, and legislate accordingly.

(Far be it for me to knock the constitution, I happen to think the States is well ahead of the UK in terms of proper procedures. For instance, the Iraq conflict (2003) was the first time parliament had a vote about the country going to war. I don't even know what the UK equivalent of a fillibuster is, or if it exists.)
posted by 92_elements at 3:11 PM on January 20, 2010


So why can't the Democrats use one of those two methods? (refusing to introduce other business, or at least making the idiots spend some effort to filibuster).


They can, but prefer not to. Some of it has to do with wasted time, some has to do with not wanting to show the legislative process at its ugliest. (A filibuster is pretty much a temper tantrum - one group saying "Nyaahh nyahh nyahh, I've got the floor and I'm not going to let it go until I get my way")

Making the opposition actually filibuster can be spun both ways though: One message is "we couldn't even get enough votes to break a filibuster". The other is "look at these idiot obstructionists holding things up". Since the dems have, to a large exent lost many recent public perception battles (health care, etc), they may not want to take a chance.
posted by chrisamiller at 3:20 PM on January 20, 2010


So why can't the Democrats use one of those two methods? (refusing to introduce other business, or at least making the idiots spend some effort to filibuster).

They can theoretically make the Republicans actually filibuster-- but since it would need to involve having 50 Democrats stay within 15 minutes of the Senate floor throughout the entire duration of the filibuster, while the Republicans only need to keep one Senator there, they're not willing to do it. (And the Republican only has to keep asking for the clerk to call the roll, they don't have to keep a speech going, so it wouldn't even be good dramatic viewing.)
posted by EmilyClimbs at 3:30 PM on January 20, 2010


Kind of just in general, things aren't really officially "unconstitutional" until they're challenged and found to be so by the Supreme Court. Even then, the court's been known to overrule itself from time to time. The Constitution is a pretty broad (and old) document, so very few things are actually *specifically* prohibited by the Constitution.

(For those who said since the Constitution doesn't mention it, it must be constitutional are being a little simplistic since lots of things have been found to be unconstitutional that aren't mentioned in the Constitution). Something can be found to violate a principle mentioned in the Constitution without being mentioned itself.
posted by ishotjr at 4:08 PM on January 20, 2010


There is a tiny bit of history that gets forgotten when people invoke the framers' intent for the Senate. In the Constitution, Senators were not elected by the people of the states. They were chosen by the legislatures of the individual states. The Senate was meant to give federal legislative power to the individual States as single entities, while the House was meant to give that power to the people via their representatives.

In that sense, a senator was not beholden to the whims of public opinion. They were meant to act on behalf of the country and on behalf of their state. If the country needed something done that would be unpopular, they had the freedom to take that action because the voters weren't going to run them out of office for it. It was a much more balanced system, IMHO.

Further, the power of the filibuster was that it WAS the nuclear option. It was a long, difficult process that only the truly devoted senator would use when the stakes were actually that high. The legislative equivalent to jumping on a grenade to save your platoon.

Now that it has been rendered physically and politically easy to do, it gives far more power to the minority than was ever intended. The effect is that even though the institution was designed in the constitution to be a 50% + 1 majority rule body, it has become a 60% + 1 institution. Since the filibuster can be had just by having the votes and figuratively pushing a button. If that's what the Senate wants to be, that's fine with me. Fire up a constitutional amendment and change the rules the right way. Until then, the constitution says that legislation needs a simple majority to pass and that's how I expect them to run it.

(Paradoxically, these rules also give the majority more power than they ought to. If a super majority of 60% can be established, then the majority can do whatever it wants. There is nothing to stop them. That threshold ought to be higher. If the former rules were returned to, the Senate would be much more balanced. You had to be super dedicated to stop the majority, and you had to have a super-duper-majority of the senate to stop them.)
posted by gjc at 4:40 PM on January 20, 2010


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