Quick Study: What is the nuclear option?

Abandoning the filibuster comes with a price for senators.
Abandoning the filibuster comes with a price for senators.
The U.S. Senate is to vote this week on whether to confirm Neil Gorsuch as a Supreme Court justice. And in discussing strategies to get the votes necessary, Republicans have threatened to use the “nuclear option.”

    What do they mean? First, the background:
     The nominee of President Donald Trump, Gorsuch, a U.S. Court of Appeals judge, would take the seat once held by Justice Antonin Scalia, who died Feb. 13, 2016. That was early in President Barack Obama's final year in office, and he nominated another appellate judge, Merrick Garland, for the job. Republican senators refused to consider or vote on Garland.  
     Now, the shoe is on the other foot. Republicans want the Senate to approve Gorsuch's nomination -- and Democratic senators have threatened to filibuster the vote. Under current rules, 60 senators must vote to end the filibuster.
    The Republican majority may change those rules so that a simple majority -- 51 senators -- could end the filibuster. Without the need for 60 votes, the 52 Republicans in the Senate could secure Gorsuch's position on the court.
     While it sounds simple, it would represent a sea change for the Senate. So what is the history? Here is the rundown, along with links and sources for further study.        

In brief: The filibuster is a procedural weapon used to block legislation in the Senate. Thanks to the 1939 classic, Mr. Smith Goes to Washington with Jimmy Stewart, it is associated with holding the floor of the Senate and talking for however long it takes to delay legislation. But actually, "a member doesn’t need to speak on the floor in a filibuster to block a vote from happening," according to the U.S. Constitution Center. "The filibuster can even be done by email." If a senator says he or she will use the filibuster, the other side must get 60 votes for cloture, or to end the filibuster.

The filibuster: The root of the word filibuster translates as “freebooter,” according to Merriam-Webster.com. (The website reports an increase of 2,657 percent in the number of look-ups of the word filibuster on Monday.)
    One of the word's definitions in Webster's New Collegiate Dictionary is “an American engaged in fomenting insurrections in Latin America in the mid 19th century.” But another definition is “the use of extreme dilatory tactics in an attempt to delay or prevent action, especially in a legislative assembly.”

The history: In a legislative rule book dating to 1789, both the House and Senate allowed a simple majority to cut off debate, writes Sarah A. Binder, senior fellow in governance studies, in an article on the Brookings Institution website. That is still the case in the House. But the Senate eliminated the rule in 1806 upon the advice of Aaron Burr, the vice president known for killing Alexander Hamilton. Burr thought the rule was unneeded.
     Eliminating the rule made a filibuster possible, but for a time, it didn’t happen, according to Binder: “It took several decades until the minority exploited the lax limits on debate, leading to the first real-live filibuster in 1837.” Soon after, in the middle of the 19th century, the Senate became more polarized. 
     Senate leaders attempted, without success, to ban filibusters. 

The Great War and cloture: A filibuster can slow or stop legislation which is good -- or bad, depending on your point of view. In 1917, Woodrow Wilson was beginning his second term as president. He had campaigned on the slogan, “he kept us out of war,” but increasingly, Wilson knew the U.S. could not avoid involvement. With Germany using U-boats to attack merchant ships, Wilson asked Congress to allow him to arm the ships with naval personnel and equipment, according to the U.S. State Department’s Office of the Historian website.
      “Several anti-war senators led a successful filibuster that consumed the remainder of the congressional session,” the State Department website recounts. Using an executive order, however, Wilson went around them and armed the ships anyhow.   
      Afterward, Wilson demanded that the Senate adopt a “cloture” rule. Cloture is defined by Webster’s as “the closing or limitation of debate in a legislative body, especially by calling for a vote.” Today that rule requires the approval of three-fifths of the senators to end a filibuster. Under the cloture rule -- known as rule 22 -- the Senate can limit "consideration of a pending matter to 30 additional hours of debate," according to the Senate's website.  

Pressing the button: The nuclear option has been used before -- by Democrats. In 2013, the Senate, then controlled by Democrats, decided that "invoking cloture on presidential nominations to positions other than the Supreme Court of the United States requires a vote of a majority of Senators present and voting, or 51 votes if all 100 Senators vote," according to the Congressional Research Service. 

Why the word "nuclear" is used: Changing the rules may seem like a fast and easy solution, but Republican senators know that they will not always hold power. In U.S. politics, the pendulum swings both right and left. When Republicans again become a minority, they may regret having lost the filibuster -- a powerful instrument.    
    But it is also a scorched-earth solution in another sense. By requiring 60 votes for cloture, senators are obliged to work together and form a consensus on difficult issues.  

       To know more:


     Library of Congress marks World War I entry

     Congress: Were things ever any better?

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