In a post last week the issue of the filibuster and cloture motion was considered:
US Government in Focus – What is a Filibuster and a Cloture Motion?
Within this article, it was noted that the cloture motion was the only way to stop a filibuster. However, there is another way. It is so drastic that it is nicknamed the ‘Nuclear Option’. However, given the Federal Shutdown that has engulfed the US Government in the last few days, it has been muted by some, including President Trump:
The Nuclear Option refers to procedure whereby the number of votes needed for cloture is reduced to a simple majority (51 Senators when all our present). As such, this removes the barrier of the filibuster being used.
The three-fifths majority needed for a cloture motion is a Senate rule, not a law passed by Congress. This means that, strangely, it can be changed by a simple majority. Doing so, however, will invoke the wrath of the minority party who will claim that the dominance of the majority is being exercised to undercut the will of the Senate.
The Nuclear Option has only been invoked twice:
- In November 2013 the Democrat controlled Senate invoked the Nuclear Option for all confirmation votes other than Supreme Court nominations. The Democrats did this to tackle the growing number of filibusters the Republicans were using to stifle the agenda of the Obama Administration. Prior to the Obama administration there had been only 86 cloture motions on confirmation proceedings in the Senate. However, in the first five years of the Obama administration there were 82. The Democrats therefore introduced the Nuclear Option to stop the Republicans being obstructionist in the Senate.
- In April 2017 Senate Republicans invoked the Nuclear Option to remove the exception to the Supreme Court from 2013. This was done because Democrats had filibustered the appointment proceedings of Neil Gorsuch to the Supreme Court. The Democrats did this in response to fact that the Republicans have refused to even hold hearings on Barack Obama’s chosen nominee, Merrick Garland.
So, what are the arguments for and against the ‘Nuclear Option’?
Filibusters themselves are undemocratic. Deploying the Nuclear Option simply restores the natural Democratic Order.
One of the key jobs of the Senate is to offer ‘advice and consent’. On occasions, such as the nomination of Merrick Garland, they have simply failed to partake in their constitutional role.
The Nuclear Option is one party manipulating Senate procedure for their ends. This is likely to increase levels of partisanship in Congress.
The Filibuster serves as a check against the power of the majority. Without this check, during United Government, there is a danger of the kind of Elective Dictatorship seen in the UK.