The Senate's 'Nuclear' Precedent: Implications for Efforts to Control the Filibuster

Abstract

The U.S. Senate established a new interpretation of its rules in November 2013. Described as exemplifying the “nuclear option” for procedural change, the Senate established that a simple majority could impose time limits on consideration of most nominations. We examine these proceedings in context of other episodes of establishing precedent in the Senate from 1979 through 2011, as well as of attempts from 1953 to 1975 to amend the cloture rule. Our analysis refutes the common assertions that what fundamentally distinguishes the two forms of action is that super-majority support is required to amend the Rules, while a simple majority may set precedents, and that therefore establishing precedent must entail “breaking the rules in order to change them.” Instead, extending previous work by one co-author, we show that in either case, the requirement of the cloture rule for a super-majority to limit consideration forms a key procedural obstacle to change. In either case, therefore, what would enable a simple majority to act is whether the crucial question can be placed before the Senate under a time limit that can be imposed without super-majority support. In this light we examine how change advocates in the various episodes we discuss attempted to meet this condition, and, again extending earlier analysis by a co-author, we assess whether or not they were able to do so, especially in 2013, without violating existing procedures.