Tuesday, November 28

What you should know about the “nuclear option” in the US Senate

(CNN) — The United States Senate will debate on Tuesday a voting rights legislation, despite the great obstacles that seem to have blocked the way for the Democrats to achieve the changes they promote.

As part of this discussion, there has been talk of using a process known as the “nuclear option.”

It’s a phrase that boils down to changing the rules of the Senate to pass laws with a simple majority.

Senators need 60 votes to do anything in the Senate except change the rules: that takes just 51 votes.

Nuclear? That sounds pretty serious for something as simple as a rule change.

Senators consider themselves to be part of the “greatest deliberative body in the world.” It’s a moot point, but to protect the minority party and make sure no one does anything without a full debate, Senate rules require that 60 of 100 senators agree to vote to move the legislation forward. In the fancy language they speak on Capitol Hill, limiting debate and proceeding with a vote is called “invoking a shutdown.”

In reality, only 51 votes are needed to pass legislation. But, due to procedural rules, 60 are required to invoke the closure and get to the actual vote. By requiring only 51 votes to limit debate, this would change the entire character of the chamber. Instead of being forced to get the minority party — Republicans at the moment — the majority party could pass anything it could get a simple majority on.

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The idea is that this would figuratively “blow up” the Senate. For now, a simple majority Senate excites many Democrats who want to pass more legislation. It also scares Republicans, whose strategy is to stall everything on Capitol Hill.

The symbolism of a “nuclear option” portends a kind of mutually assured destruction in the future, to borrow another term from the Cold War. Democrats will not always control the Senate. And when the Republicans are in charge, you can bet they’ll be paid back in kind.

Has the “nuclear option” ever been taken to change the rules?

Yes. We already live in a world of post-nuclear choices when it comes to presidential appointments.

Most presidential appointees to the judiciary and executive used to need 60 votes for closure to be invoked in their cases. Democrats changed the rules during the Obama administration and now only a simple majority is required to get votes on most appointments. For their part, Republicans changed the rules for Supreme Court candidates during the Trump administration.

Is all this constitutional?

Of course. The Constitution says nothing about the rules of the Senate. It puts that power in the hands of senators.

“Each House may determine the rules of its procedures,” according to Article 1, Section 5.

Senators are tasked with signing candidates into Article 2, Section 2. But it doesn’t say how exactly, which has led to a centuries-long debate on the matter.

Here is what the Constitution says about the president’s power to appoint officials: “He shall have power…with the advice and consent of the Senate, appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officials of the United States, the appointments of which are not otherwise provided for herein, and which shall be established by law; but Congress may, by law, confer the appointment of such inferior officers as it deems proper to the President only, in the Courts of Law , or in the Heads of Department”.

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Where does the threshold of 60 votes come from?

It’s in the Senate rules. Read the chapter on closure.

But the rules have changed over time. Until 1949, for example, according to the Congressional Research Service, senators could not even move to limit debate (invoke closure) on appointments.

According to the Senate website, Henry Clay was the first senator to threaten nuclear legislation, back in 1841. Until 1975, it actually took 67 votes to overcome a filibuster.

The most famous examples occurred during the civil rights era, when southerners of both parties blocked equal rights legislation. It took 60 days of filibustering to find the votes for the Civil Rights Act of 1964.

What role does obstructionism play in all this?

Everyone seems to have a different definition of what who is an obstructionist. In pop culture, filibustering is reminiscent of Jimmy Stewart in “Mr. Smith Goes to Washington,” who speaks for hours to block legislation he doesn’t agree with.

These days, stonewalling is implicit. When everyone realizes there aren’t 60 votes to limit debate, senators usually don’t spend much time debating. They just continue. When a senator stages an all-night speech, the outcome is usually predetermined.

If the rules are changed and only a simple majority is required to limit debate, Republicans will still have other delaying tactics to employ. They just couldn’t block most votes entirely.

Why is all this coming to a head now?

More and more Democrats support removing filibuster, at least in some circumstances. Most of the important legislation — tax cuts under the Trump administration and health care under the Obama administration — required finding a way around filibuster rules. In those two cases, party leaders exploited budget rules.

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But that’s an imperfect solution and wouldn’t work for voting rights, the issue most Democrats argue is worth changing the rules about.

Democrats want to impose new national rules to protect voter rights, while Republicans in key states strive to limit access to voting by mail and otherwise make it difficult to cast a vote.

But the consequences of the nuclear option would extend beyond voting rights. You cannot go back from this measure. That’s why more moderate Democrats, like Sens. Joe Manchin of West Virginia and Kyrsten Sinema of Arizona, still disagree with pushing the nuclear button.


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