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Nuclear option

In the United States Senate, the nuclear option is a parliamentary procedure that allows the Senate to override a standing rule by a simple majority, avoiding the two-thirds supermajority normally required to invoke cloture on a measure amending the Standing Rules. The term "nuclear option" is an analogy to nuclear weapons being the most extreme option in warfare.

For other uses, see Nuclear option (disambiguation).

The nuclear option can be invoked by a senator raising a point of order that contravenes a standing rule. The presiding officer would then overrule the point of order based on Senate rules and precedents; this ruling would then be appealed and overturned by a simple majority vote (or a tie vote), establishing a new precedent. The nuclear option is made possible by the principle in Senate procedure that appeals from rulings of the chair on points of order relating to nondebatable questions are themselves nondebatable.[1]: 725  The nuclear option is most often discussed in connection with the filibuster. Since cloture is a nondebatable question, an appeal in relation to cloture is decided without debate. This obviates the usual requirement for a two-thirds majority to invoke cloture on a resolution amending the Standing Rules.


The nuclear option was notably invoked on November 21, 2013, when a Democratic majority led by Harry Reid used the procedure to reduce the cloture threshold for nominations, other than nominations to the Supreme Court, to a simple majority.[2] On April 6, 2017, the nuclear option was used again, this time by a Republican majority led by Mitch McConnell, to extend that precedent to Supreme Court nominations, in order to enable cloture to be invoked on the nomination of Neil Gorsuch by a simple majority.[3][4][5]


The use of the nuclear option to abolish the 60-vote threshold for cloture on legislation has been proposed, but not successfully effected.

Recent usage[edit]

1995: Hutchison precedent[edit]

Rule XVI of the Standing Rules of the Senate prohibits legislative material from being included in general appropriations bills.[27]


In 1995, during consideration of the Emergency Supplemental Appropriations and Rescissions for the Department of Defense to Preserve and Enhance Military Readiness Act of 1995, Senator Kay Bailey Hutchison offered an amendment that would have changed existing law regarding endangered species, therefore violating Rule XVI. Senator Harry Reid raised a point of order against the amendment, which the chair sustained. Hutchison appealed the ruling of the chair. The Senate voted against sustaining the decision of the chair by a vote of 42–57.[28] The Senate thus set a precedent nullifying the provision of Rule XVI.[29]


In 1999, the Hutchison precedent was overturned (and the original effect of Rule XVI restored) when the Senate agreed to S.Res. 160, which states:

Proposed use for legislation[edit]

Following elimination of the 60-vote rule for nominations in 2013, senators expressed concerns that the 60-vote rule will eventually be eliminated for legislation via the nuclear option.[52]


While President, Donald Trump spoke out against the 60-vote requirement for legislation on several occasions. Then-Senate Majority Leader Mitch McConnell opposed abolishing the filibuster despite Trump's demands, and in April 2017, 61 senators (32 Republicans, 28 Democrats, and one independent)[53] signed a letter stating their opposition to abolishing the filibuster for legislation.[54] On January 21, 2018, Trump said on Twitter that if the shutdown stalemate continued, Republicans should consider the "nuclear option" in the Senate.[55] He repeated the call on December 21, 2018, with a fresh shutdown looming.[56]


Concerns about abolishing the filibuster through the nuclear option were reiterated in 2021 as the Democratic-majority Senate could attempt to eliminate the filibuster through the nuclear option.[57] On January 3, 2022, Senate Majority Leader Chuck Schumer announced that the Senate would vote on using the nuclear option to reform the filibuster in order to pass his party's election reform legislation.[58][59] On January 19, 2022, Schumer made a point of order that would have allowed a 'talking filibuster' on a voting rights bill without any other dilatory measures. The Senate voted 52–48 to sustain the decision of the chair overruling the point of order. Senators Joe Manchin and Kyrsten Sinema voted with all Republicans in favor of sustaining the decision of the chair.[58]


As of May 2024, the nuclear option has not been used to abolish the filibuster on legislation.[60]

Other uses of "nuclear option"[edit]

After the appointment of Amy Coney Barrett to the Supreme Court of the United States, a proposed countermove to increase the size of the Supreme Court past nine seats (and thereby create new vacancies) was also described as a "nuclear option".[61][62]


Beyond the specific context of the U.S. Senate, 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. The term has been used in connection with procedural maneuvers in various state senates.[63][64][65][66][67]


In a 2005 legal ruling on the validity of the Hunting Act 2004[68] the UK House of Lords, sitting in its judicial capacity, used "nuclear option" to describe the events of 1832, when the then-government threatened to create hundreds of new Whig peers to force the Tory-dominated Lords to accept the Reform Act 1832. (Nuclear weapons were not theorized until the 20th century, so the government's threat was not labeled as "nuclear" at the time.)

United States federal judge

Judicial appointment history for United States federal courts

Cloture

George W. Bush judicial appointment controversies

George W. Bush Supreme Court candidates

Reconciliation (United States Congress)

Up or down vote

M. Gold & D. Gupta, The Constitutional Option to Change Senate Rules and Procedures: a Majoritarian Means to Overcome the Filibuster in the Harvard Journal of Law and Public Policy; (2004) (arguing that the nuclear/constitutional option it is firmly grounded in Senate history) (PDF file)

28 Harvard Journal of Law & Public Policy 205

William G. Dauster, N.Y.U. Journal of Legislation & Public Policy, volume 19 (number 4) (December 2016): pages 631–83 (explaining Senator Reid's use of the nuclear option).

“The Senate in Transition or How I Learned To Stop Worrying and Love the Nuclear Option,”

Policy Analysis by Senate Republican Policy Committee summarizing arguments and reviewing history

National Review's Bench Memos

Senator George Allen (R-VA) Calls Democrats Bluff