- Published: Thursday, 18 May 2017 07:00
I see people freak out every time the subject of the US Senate invoking “THE NUCLEAR OPTION” surfaces in the news cycle. Let me explain in simple and clear terms what that is and why it’s there.
The Senate, as envisioned by our Founding Fathers, represented the interests of the States, notably the State governments. Up until the Seventeenth Amendment was ratified in 1913, Senators were appointed by the State governments. Now the People directly elect them.
The purpose of the Senate was to be “the cooling saucer” to balance the passions of the House. The term comes from the common way people drank hot beverages back then. You drank from the cup, the saucer held directly below the cup. If some should escape your lips and spill, it would be caught by the saucer, where it would cool off before you drank it.
The Senate was meant to be a deliberative body, which is why they have the enumerated power of “advice and consent” to the President.
Most, if not all legislative bodies follow Robert’s Rules of Order Newly Revised (RONR) to conduct their business. I have a copy on my desk. Robert’s Rules of Order, Newly Revised, 11th Edition.
In RONR, there are two kinds of majorities in the voting process. Depending on the body and what they are voting on, these majorities can consist of either “members present” or “total members.” You have a simple majority (50% plus 1 more vote) or a supermajority (two-thirds, or 66% plus 1 more vote).
Now that I have explained all of that, the term that is at the center of “the nuclear option” is “Cloture.” Because the Senate is such a deliberative body, they like to talk. A LOT.
Just in case you didn’t know it, Senators Richard Russell, Strom Thurmond, Robert Byrd, William Fulbright and Sam Ervin, all Southern Democrats, filibustered the 1964 Civil Rights Act for 60 “working days” (the Senate is only “in session” 162 days a year, or 3 days a week).
Cloture is a parliamentary move to limit debate. In RONR, it is called Previous Question and can be found in RONR Chapter 6, Subsidiary Motions, §6, Page 197 Line 22. The only reference to Cloture itself is in RONR on page 201, first footnote, last sentence. If the vote for Cloture passes, then all debate on that item (bill, nomination, etc.) in front of the Senate is halted. Then and only then can there be a second, separate vote on the item itself.
Let me say that again. A successful Cloture vote (3/5ths) tells the whiny crybabies who are holding their breath (figuratively) to shut up so a simple up-or-down vote on the item at hand can be made.
Up until the filibuster above, Cloture required a 2/3rds vote of the full Senate. In 1975, the Senate Rules were changed to invoke Cloture at a “3/5ths majority.” In the case of the 100 member Senate that means 60 votes.
In November 2013, during the Democrat-controlled 113th US Congress, the Senate Democrats amended the Cloture rule so that Cloture could not be invoked on votes for presidential appointees and judges other than the Supreme Court. That way, the Democrats could halt Republican filibusters for Obama’s nominees to senior administration positions and his nominees to federal benches inferior to the Supreme Court.
Just recently, the Republican majority in the Senate returned the favor and exempted Supreme Court nominees from the Cloture process so Neil Gorsuch could be appointed to the Supreme Court. A 3/5ths majority is still required on bills before the Senate.
In the end, Cloture is nothing more than a rule made up and changed at will by the members of the Senate. It is not in the Constitution. Like weather in Hawaii, if you don’t like it, stick around, it will change pretty quickly.
It’s a grown-up version of a sandlot rule for kids baseball.