Nuclear option
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The nuclear option, called the constitutional option by some proponents, is a generic term for a set of hypothetical parliamentary maneuvers that could be used in the United States Senate to achieve approval of certain motions by a majority vote, rather than the "super-majority" required by current Senate rules and precedents. The nuclear option has arisen in reaction to the frequent use of Senate rules by a minority of Senators to block consideration of a nominee for an Executive Branch or judicial position (or less frequently, a bill or resolution). Since the 1970s, threats by the majority party to use some version of what is now known as the nuclear option have resulted in some changes to Senate rules and practices to limit opportunities for blocking nominations, without actually invoking the nuclear option itself.
Current Senate rules require a three-fifths majority (usually 60 votes) to end debate on a bill, nomination or other proposal (or two-thirds (usually 67 votes) for a change to the Senate rules), effectively allowing a minority of the Senate to block the measure through the technique of the filibuster. This has effectively resulted in a requirement that a nomination have the support of 60 Senators to pass, rather than a majority of 51.
In most variations of the nuclear option, the presiding officer of the Senate would rule that a simple majority vote is sufficient to end debate, and if the ruling were challenged, a majority would be required to overturn the ruling. This would mean, for example, that 51 Senators who favor a nomination could use their majority to uphold the presiding officer's ruling that only 51 votes are needed to end debate and proceed to a final vote, and once the 51 had voted to end debate, they would then have sufficient votes to confirm the nomination. This would end what has effectively become a 60-vote requirement for confirmation of an executive or judicial nominee, or the passage of legislation.
Some variations of the nuclear option involve changing the Senate rules themselves, while others would use the maneuver to create a new precedent for particular types of measures, by having a majority of the Senate uphold the ruling of the presiding officer that a previous rule or precedent is no longer valid.
The metaphor of a nuclear strike refers to the majority party unilaterally imposing a change to the filibuster rule, which might provoke retaliation by the minority party. The alternative term "constitutional option" is often used with particular regard to confirmation of executive and judicial nominations, on the rationale that the United States Constitution requires these nominations to receive the "advice and consent" of the Senate. Proponents of this term argue that the Constitution implies that the Senate can act by a majority vote unless the Constitution itself requires a supermajority, as it does for certain measures such as the ratification of treaties. By effectively requiring a supermajority of the Senate to fulfill this function, proponents believe that the current Senate practice prevents the body from exercising its constitutional mandate, and that the remedy is therefore the "constitutional option."
The history of the "nuclear" option, though not the name, has been traced to an opinion written by then-Vice President Richard Nixon in 1957, while he held the title President of the Senate. Nixon's opinion stated that the Constitution grants the presiding officer of the Senate the authority to override Senate rules by making a ruling that is then upheld by a majority vote. Senator Trent Lott (R-Miss.) first used the term "nuclear option" for this maneuver in March 2003.
A series of votes in 1975 have been cited as a precedent for the nuclear option, although some of these were reconsidered shortly thereafter.
The maneuver was brought to prominence in 2005 when Majority Leader Bill Frist (Republican of Tennessee) threatened its use to end Democratic-led filibusters of judicial nominees submitted by President George W. Bush. In response to this threat, Democrats threatened to shut down the Senate and prevent consideration of all routine and legislative Senate business. The ultimate confrontation was prevented by the Gang of 14, a group of seven Democratic and seven Republican Senators, all of whom agreed to oppose the nuclear option and oppose filibusters of judicial nominees, except in extraordinary circumstances.
The nuclear option was raised again following the congressional elections of 2012, this time with Senate Democrats in the majority (but short of a supermajority). The Democrats have been the majority party in the Senate since 2007 but only briefly did they have the 60 votes necessary to halt a filibuster. The Hill reported that Democrats would "likely" use the nuclear option in January 2013 to affect filibuster reform, but the two parties managed to negotiate two packages of amendments to the Rules concerning filibusters that passed on January 24, 2013, by votes of 78 to 16 and 86 to 9, thus avoiding the need for the nuclear option.
In July 2013, 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 ability of the minority party to filibuster appointments was preserved by a last-minute deal in which 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.
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