The Nuclear Option, the Law of the Senate and the Conscientious Senator

This is my final post (at least for this Congress, hopefully) on the filibuster and the entrenchment of Senate rules. For the first 9 entries in this series, see below:

Legal Scholar Letter to the Senate on Procedures for Changing the Rules

Professor Bruhl and Senate Continuity

Professor Chemerinsky and Senate Precedent on Changing the Rules

Senate Rules from the Internal Point of View

Entrenchment and the Academic “Consensus”

Entrenchment Reconsidered (Part I)

Entrenchment Reconsidered (Part II)

Professor Chafetz and the “Constitutionally Conscientious Senator”

Did the Senate Flub Its Cinderella Moment?

In this post, I will consider the so-called “nuclear option,” its legality or legitimacy under the law of the Senate, and how a “constitutionally conscientious Senator” should vote with respect to its exercise.

The “nuclear option” (also sometimes called the “constitutional option”) may be defined as the use of a parliamentary ruling to declare the Senate rules unconstitutional insofar as they require a supermajority to end debate on a proposed change to the rules. If such a ruling were upheld by a simple majority, it would no longer be possible for a minority of senators to block rules changes (depending on the scope of the ruling, either at the beginning of a Congress or at any time). This would effectively end the (allegedly) unconstitutional entrenchment of the Senate rules claimed by the signatories to the December 12 legal scholar letter.

As explained below, I believe that the “nuclear option” is most reasonably understood as illegal under the existing law of the Senate, in the sense that its use would require overruling a substantial body of Senate precedent. Furthermore, it is believed by most senators, including some that would be willing to invoke the nuclear option if need be, that its use would entail, at the very least, substantial institutional costs in terms of the stability and perceived legitimacy of the Senate’s legal system. At the most, the nuclear option would effectively destroy the Senate’s existing legal system and require the creation of a new system of rules and precedents more or less resembling the House’s majoritarian procedures.

The Senate has previously declined to exercise the nuclear option on a number of occasions, including in 2005 when the Republican majority considered using it to abolish the filibuster with respect to judicial nominations and, most recently, on January 24, 2013, when the Democratic majority considered using it to enact major reforms to the filibuster generally. The evidence from these episodes indicates that many senators, including the “swing senators” (majority senators who refused or were reluctant to support the use of the nuclear option), were concerned about both the legitimacy of the nuclear option under the law of the Senate and the practical effects that it would have on the Senate as an institution.

Rather than trying to convince senators that they misunderstand the Senate’s own traditions and precedents, or that they overstate the likely institutional consequences of the nuclear option, it seems to me that the scholars and academics who have opined on these issues would provide a more useful service to the Senate by proposing constitutional solutions that can reasonably be achieved under the Senate’s existing rules. At the conclusion of this post, I suggest one possible solution.

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