Nuclear Option

Entry in progress—B.P.
   
Wikipedia: Nuclear option
In U.S. politics, the nuclear option allows the United States Senate to reinterpret a procedural rule by invoking the constitutional requirement that the will of the majority be effective. This option allows a simple majority to override precedent and end a filibuster or other delaying tactic. In contrast, the cloture rule requires a supermajority of 60 votes (out of 100) to end a filibuster. The new interpretation becomes effective, both for the immediate circumstance and as a precedent, if it is upheld by a majority vote. Although it is not provided for in the formal rules of the Senate, the nuclear option is the subject of a 1957 parliamentary opinion by Vice President Richard Nixon and was endorsed by the Senate in a series of votes in 1975, some of which were reconsidered shortly thereafter. Senator Trent Lott (R-Miss.) first called the option “nuclear” in March 2003. Proponents since have referred to it as the constitutional option.
 
The maneuver was brought to prominence in 2005 when then-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 is not to be confused with reconciliation, which allows issues related to the annual budget to be decided by a majority vote without the possibility of filibuster.
 
Changes to Senate rules
The Senate does not restrict the total time allowed for debate; instead, a motion for cloture must be passed to end debate. A three-fifths majority of all senators duly sworn (60 senators, assuming there is no more than one vacancy) is required to approve the cloture motion and proceed to a vote on the main issue. Thus, although a bill might have majority support, a minority of 41 senators can prevent a final vote, effectively defeating the bill. In practice, if it is clear that the motion for cloture will not carry, the bill may simply be tabled so that the Senate can conduct other business. From time to time, however, the margin of votes for cloture may be very close, and the minority may wish to stall the cloture vote for as long as possible. Because debate time is unlimited, senators may simply speak endlessly on the Senate floor to prevent a vote from taking place; this tactic is known as a filibuster. A formal change to the Senate’s rules is even more difficult to make: Senate rule 22 says that such a change requires a two-thirds majority of those present and voting to end debate (67 votes if all senators vote).
 
A point of order is a parliamentary motion used to remind the body of its written rules and established precedents, usually when a particular rule or precedent is not being followed. When a senator raises a point of order, the presiding officer of the Senate immediately rules on the validity of the point of order, but this ruling may be appealed and reversed by the whole Senate. Ordinarily, a point of order compels the Senate to follow its rules and precedents; however, the Senate may choose to vote down the point of order. When this occurs, a new precedent is established, and the old rule or precedent no longer governs Senate procedure. Similarly, it is possible to raise a point of order and state that the standard procedure of the Senate is actually different than the current rules and precedents suggest. If this point of order is sustained, a new precedent is established, and it controls Senate procedure thenceforth.
 
The nuclear option is a potential 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.
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Other uses of “nuclear option”
Beyond the specific context of U.S. federal judicial appointments, the term “nuclear option” has come to be used generically for a procedural maneuver with potentially serious consequences, to be used as a last resort to overcome political opposition. In a recent legal ruling on the validity of the Hunting Act 2004[88] the UK House of Lords used “nuclear option” to describe the events of 1832, when the then-government threatened to create hundreds of new Liberal peers in order to force the Tory-dominated Lords to accept the Great Reform Act.
 
(Oxford English Dictionary)
nuclear option n. (a) the option to use nuclear weapons in conflict; (b) fig. the most drastic of the possible responses to a situation.
1962 Amer. Polit. Sci. Rev. 56 27/2 The strategic *nuclear option was a policy for which both the weapons and a doctrine existed.
1996 Daily Tel. 23 Apr. 1/3 The so-called ‘nuclear option’ of imposing a wide-ranging ban on other European foodstuffs is..highly unlikely at this stage.
1998 G. E. SCHWEITZER Superterrorism ii. 81 When responding to chemical, biological, or conventional attacks, even if they are very serious, we should forget the nuclear option.
2000 Times 17 Nov. 1/2 The ‘nuclear option’ of a full partisan battle in Congress was raised.
         
New York (NY) Daily News
STATE POLS TO DRAW KNIVES OVER REDRAWN HOUSE LINES
By ROBERT LIFF DAILY NEWS STAFF WRITER
Friday, December 29th 2000, 2:15AM
Let the games begin.
 
Two of New York’s members of Congress will be out of work when the 2000 Census forces the state’s once-dominant House delegation to drop to just 29 members in 2003.
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Fair fight II: Combine districts, with two Democrats downstate and two Republicans upstate, to avoid upsetting the partisan balance. This could yield what one member called “the nuclear option,” pitting West Sider Jerrold Nadler against East Sider Carolyn Maloney in a Democratic battle for Manhattan south of Harlem.
   
National Review Online
BYRON YORK
September 6, 2002 9:30 a.m.
After Owen: Do Republicans Have a Battle Plan?
The party searches for a way to fight back.
Now that Democrats on the Senate Judiciary Committee have shot down the federal appeals-court nomination of Priscilla Owen, the question among Republicans, both on Capitol Hill and in the White House, is: How can the GOP strike back? What can Republicans do to make Democrats pay — so much so that they will hesitate to do it again?
 
At the moment, the answer appears to be…not much.
 
Republicans in the Senate face a number of unpalatable choices. First, there’s the nuclear option. The GOP could shut down the Senate and tell Democrats that nothing will get done until they make a binding commitment to treat the president’s judicial nominees better. So far, that idea doesn’t have many supporters. “Nobody’s got the stomach for that,” says one Republican. “And what would we block? Homeland security? The economic stimulus? The energy bill?” GOP sources points out that virtually everything before the Democratic-controlled Senate at the moment is a Republican-agenda item. If Republicans shut down the Senate, they shut down their own — and George W. Bush’s — agenda.
   
National Review Online
BYRON YORK
May 8, 2003 8:45 A.M.
Will The Gop “Go Nuclear” Over Judges?
Don’t bet on it.
There’s been a flurry of speculation in the Senate and in conservative circles about a so-called “nuclear option” to break through the current deadlock over judicial nominations. The scenario envisions Republicans using parliamentary maneuvers either to declare the Democratic filibusters of Miguel Estrada and Priscilla Owen unconstitutional, or to decide that Senate rules forbid the minority party from using the filibuster in cases of judicial nominations. In either case, the scenario goes, a simple majority of 51 votes could then be held to uphold the parliamentary ruling. Then, the Senate could move on to a final confirmation vote for both nominees.
   
National Review Online
BYRON YORK
May 15, 2003 10:25 A.M.
Nuclear Option, No. Nuclear Response, Yes.
Republicans lay the groundwork for breaking Democratic filibusters.
Amid all the talk of Republicans using the so-called “nuclear option” to end the Democratic filibuster of the president’s judicial nominees, there’s been little discussion of perhaps the key question in the matter: How many Republicans actually support that strategy? “That’s a state secret,” says one Republican. “It’s fair to say we’ve been in a constant state of checking for two or three months.”
 
New York (NY) Times
ON LANGUAGE
Nuclear Options
By WILLIAM SAFIRE
Published: March 20, 2005
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Now the term is used to mean ‘‘an action that invites a really bitter battle.’’ In March 2003, the Mississippi Republican Trent Lott was troubled by the Democrats’ use of the threat of a filibuster, or Senate-stopping ‘‘extended debate,’’ which prevented a vote on some of President Bush’s judicial nominees. Charles Hurt of The Washington Times wrote that Lott told him of a plan that might allow Republicans to confirm a judge with a simple 51-vote majority—rather than the 60 votes needed under the present rules to ‘‘break’’ a filibuster. Lott ‘‘declined to elaborate, warning that his idea is ‘nuclear.’ ‘’ This led Michael Crowley of The New Republic to ask rhetorically: ‘‘What might Lott’s ‘nuclear’ option be?’‘