Changing Senate Rules or Procedures: The âConstitutionalâ or âNuclearâ Option (CRS Report for Congress)
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| Release Date |
Revised Nov. 1, 2005 |
| Report Number |
RL32684 |
| Report Type |
Report |
| Authors |
Betsy Palmer, Government and Finance Division |
| Source Agency |
Congressional Research Service |
| Older Revisions |
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Summary:
Reports indicate possible attempts to curtail the use of filibusters in the Senate, perhaps in the
109th
Congress. Some have suggested that proponents of this idea may invoke something called the
"nuclear" or "constitutional" option in Senate floor procedure to try
to end a filibuster without the
need for 60 votes or to amend the cloture rule (Rule XXII) itself. No set definition exists for the
term "nuclear" or "constitutional" in this context. Because the point
of using such an option is to
achieve a goal by means lying outside the Senate's normal rules of procedure, it would be
impossible
to list all the different permutations such maneuvers could encompass. Several likely scenarios that
fall into this category are described in this report, followed by a discussion of the possible advantages
and disadvantages of using such an approach.
Opponents (and some supporters) of this kind of plan typically refer to it as the
"nuclear" option
because of the potentially significant result for Senate operations that could follow from its use. The
Senate relies heavily on unanimous consent to get its legislative work accomplished. It may be more
difficult to achieve unanimous consent in an environment where the minority feels it has lost some
of its traditional rights. Supporters of the concept of majority cloture argue that it is a
"constitutional" option because they will be making their argument based on a
constitutional
prerogative or duty of the Senate.
One method for changing Senate procedures might involve declaring extended debate on
nominations dilatory, and thus, out of order. Another possibility is based on the argument that, on
the first day of a new Congress, Senate rules, including Rule XXII, the cloture rule, do not yet apply,
and thus can be changed by majority vote. Under this argument, debate could be stopped by majority
vote. A Senator would move the adoption of a new rule or set of rules. The new rule or rules would
be subject to a majority vote, supporters argue, because the mechanics of cloture as set out in Rule
XXII, which requires a supermajority to invoke cloture and end debate, would not yet apply and the
Senate would be operating under general parliamentary law. One variation would be a claim that
on the opening day of a Congress a simple majority could invoke cloture on the motion to take up
a resolution that proposed a rules change, or on the resolution itself. Again, this scenario would rest
on the proposition that Rule XXII was not yet in force and did not control action. Senators also
could seek to have the 60-vote threshold declared unconstitutional, either for cloture in general, or
only as it applies to Senate consideration of presidential nominations, or perhaps a subset of such
nominations, such as of federal judges. This scenario might take place in at least two different ways.
The presiding officer might make a ruling from the chair, or a Senator could make a point of order
from the floor that the supermajority requirement for cloture is unconstitutional.
All these possible scenarios would require that one or more of the Senate's precedents
be
overturned or interpreted otherwise than in the past.
This report will be updated as events warrant.
