Legislative 101

Legislative Process 101—Cloture and the Nuclear Option


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If you’ve been following the Neil Gorsuch nomination to join the Supreme Court, you’ve probably been hearing a lot about “filibuster,” “cloture,” and even something people are referring to as the “nuclear option.” Basically, these refer to rules of the Senate that have existed for hundreds of years—and efforts to change them to make it easier for Trump to ram through his extreme pick for the Supreme Court. Below is an explanation of each of these, how they work together, and why they’re so important for stopping Trump.

THE SENATE IS SUPPOSED TO WORK THROUGH AGREEMENT

The vast majority of business in the Senate can only happen in the Senate quickly if there is “unanimous consent”—everything from consideration of a bill or nomination, permission for committees to meet in the afternoon, or even a motion to adjourn. In practice, leadership from both parties work together with permission from their caucuses to set up the Senate schedule, including the time for debate and vote on a Supreme Court nomination. That schedule is then locked in by unanimous consent.

Without unanimous consent, even one Senator can gum up the works, bringing legislative work to a halt. Generally, the only way to move forward is to use (“invoke”) what’s called cloture.* Cloture is a motion to end debate and force an up or down vote on a bill or nomination, and either party can use it, but to use it successfully they’ll need to get a supermajority of 60 votes. A filibuster occurs when the Senate has failed to reach agreement on a time to end debate and vote on a bill or nomination, meaning a Senator can delay a vote indefinitely. The only way to then end a filibuster is for the Senate to invoke cloture.

INVOKING CLOTURE FOR SUPREME COURT NOMINATIONS

Once a party invokes cloture, which is the process for cutting off debate and ending a filibuster, the vote can’t happen immediately. Cloture has to “ripen” and cannot be voted on until after a full legislative day has passed.
Invoking cloture requires a 60-vote threshold for Supreme Court nominations, the same as for legislation, while other nominations, like the president’s cabinet, have been lowered to a simple majority threshold for invoking cloture. Here is where the choose-your-own adventure part begins:

  • If 60 senators vote to invoke cloture, then the filibuster has ended and the Majority Leader can schedule an up or down majority vote on after 30 hours of post-cloture debate time. At least 41 Democratic Senators need to vote NO on cloture to prevent this from happening.
  • If the Senate does not reach 60 votes for cloture, the Majority Leader can move to reconsider the vote and continue to try again to reach 60 votes to end debate. At least 41 Democratic senators need to continue to vote NO if the Majority Leader moves to reconsider to prevent this from happening.
  • But if the Senate does not reach 60 votes for cloture, the Majority Leader could choose to invoke the “nuclear option.” Basically, they can just change the rules.

THE “NUCLEAR OPTION” EXPLAINED

There is a lot of confusing procedure involved in the nuclear option, but it boils down to this: if the rules don’t let you move from debate to a vote on a Supreme Court nominee, then why not just change the rules? The nuclear option would happen if the majority lowered the number of votes needed to end a filibuster on a Supreme Court nominee from 60 votes to a simple majority.

Generally, to change the rules of the Senate, you need 67 votes—including the current rule requiring 60 votes to invoke cloture on a Supreme Court nomination. However, the Majority Leader can basically just disagree with the rule—stating instead that a Supreme Court nomination only requires a majority vote, not 60. Because the rules are clear that cloture for a Supreme Court nominee requires 60 votes, the presiding chair will overrule the Majority leader. But then, if the Majority Leader appeals the ruling of the chair, there is a simple majority vote on whether or not to uphold the ruling from the chair—THIS is the nuclear option vote! Those opposed to the nuclear option (and Gorsuch) will vote YES which would maintain the 60-vote threshold to end a filibuster. Those in favor of the nuclear option (most or all of the Republican Senators) will vote NO.

If a majority votes no, then Majority Leader McConnell will have achieved the nuclear option, lowering the threshold for invoking cloture for a Supreme Court nominee to a simple majority vote. At that time, he will call for another cloture vote at the new simple majority threshold.

SO WHY IS THIS SUCH A BIG DEAL?

Barring a few procedural protest votes, the whole “nuclear option” process would take just a few hours, though it could radically change the Senate. This option has been called “nuclear” because it essentially blows up the rules of the Senate, gumming up the works and grinding it to a halt. There is a cost to be paid by overrunning a minority, especially without provocation.

BUT DIDN’T DEMOCRATS USE THE NUCLEAR OPTION BACK IN 2013?

Senate Republicans will likely blame the nuclear option on the decision by the Senate’s Democratic Majority to go nuclear in 2013, when they did it for non-Supreme Court nominees like lower court judges and cabinet secretaries. But this is a very different nomination in a very different context:

  • The Supreme Court is different and too important. Because of the finality and impact of its rulings on millions of Americans, we should ensure that Justices on the court are the kind of nominees that can get 60 votes—that they represent the mainstream of America and not just an extreme faction.
  • In 2013, Democrats in the Senate went nuclear after years of Republican abuse of the rules led to a constitutional crisis in which Senate Republicans were refusing to confirm any of President Obama’s nominees to the critical D.C. Circuit. In fact, half of all filibusters of judicial nominees in history were during President Obama’s first 5 years.
  • There is no similar abuse of power or constitutional crisis now as there was in 2013. After blocking President Obama’s nomination of Merrick Garland, a well-respected moderate, for nearly a year and having won a controversial election, the Republicans want to jam through an extreme right wing nominee and want to do so very quickly. A more acceptable moderate nominee could easily be confirmed. Invoking the nuclear option has no basis, is an abuse of power, and will forever change the Senate and country.