Some believe that passing laws and confirming appointees in the U.S. Senate requires 60 votes, calling any attempt to do otherwise a “nuclear option.” Such a move is well within the Senate’s defined constitutional powers, but allegedly a newfangled innovation in an institution supposed to prize precedent and tradition.
The trouble is the Senate did not start out working this way, and even if we are inclined more toward recent practice, the sum of all fears has already been realized: Former Senate Majority Leader Harry Reid (D-NV) pushed the nuclear button. The only reason anything requires 60 votes anymore is because 51 votes say so. Does anyone doubt that, if Senate Democrats had a majority in 2016, Judge Merrick Garland would have replaced Justice Antonin Scalia on the U.S. Supreme Court? Relaxing on the beach and pretending that nothing has happened in the Senate wastes our precious majority without securing future minority rights.
Simple Majority Votes Used To Be The Norm
Let’s go back to day one of the Senate in 1789. Neither the Constitution nor the original rules describe anything approximating a filibuster, in which a single Senator could delay a vote by holding the floor as long as he could stand. In fact, quite the opposite: an original rule specifically allowed for a simple majority to shut off debate. That rule was eliminated in 1806, yet a Brookings Institution study found that no real filibusters took place until the 1830s. Even then, most major legislation passed with simple majority votes, as Senators in the minority understood that to use the filibuster too frequently would invite a rule change.
In 1917, a formal rule was reintroduced to allow debate to be shut off. This time called “cloture,” the rule required a two-thirds majority vote. And yet, according to Senate procedure expert Martin Gold, “between 1917 and 1962, cloture was imposed only five times.” The filibuster frustrated but did not prevent civil rights legislation, and a victorious but irritated majority in 1975 reduced the number of votes required to shut off debate from two-thirds to three-fifths, i.e. the famous 60-vote threshold.
There are two controversial ways to the reduce 60 votes to 51. The first path would change the Senate rules at the beginning of a new session, i.e. every two years. Current Senate rules require a two-thirds majority to change Senate rules, but Senators have debated since 1789 whether previous Senate sessions can bind future Senate sessions. The question has not been definitively resolved because Senators have always tended to renew the rules. But if Senators are unbound, then the Senate could change its rules at the beginning of a new session with only 51 votes, and use that rule change to lower the threshold for every other vote to 51.
We Can’t Ignore The Precedent Harry Reid Set
The second path is the one Senate Majority Leader Harry Reid chose, and is even more controversial among the small group of people who have any idea how the Senate operates. In 2013, Republicans were using Senate rules to block leftist judges from being confirmed. Reid did not have the 60 votes required to invoke cloture and shut off debate and he certainly did not have the 67 votes required to change the rule, so he decided to pull the nuclear trigger. Reid invoked a point of order to redefine the words “three-fifths” to mean a “simple majority” for judicial appointments below the Supreme Court. 51 Democrats supported the doublespeak, and the day after the Senate was forever changed.
And yet still some insist, despite all the evidence of radioactivity, that the Senate still enjoys some sort of pre-nuclear unique practice about Supreme Court justices or major laws. Imagine if the Soviet Union had nuked all of our medium-sized cities but had temporarily spared the biggest metropolitan areas. Would we spare Moscow? Of course not.
Republicans Shouldn’t Fear The Nuclear Option
The Senate needs to confirm Gorsuch with 51 votes. Fewer than 60 is preferred because Gorsuch is essentially unobjectionable and therefore provides a good precedent when the Senate needs to push through a qualified conservative justice who might be more controversial—like Robert Bork once was.
In some ways, I would prefer an alternative. I worked for the Senate Steering Committee in law school, and we took maximum advantage of the Senate’s rules empowering a minority to make a difference. Allowing a minority to block bad ideas can be meaningful to conservatives because even a Republican majority has proved unreliable in curbing government. But the sad truth is that Harry Reid killed minority rights, and Republican majorities need to summon the courage to shrink government and advance a constitutional conservative agenda. If they don’t, then what’s the point of winning elections at all? Republicans should learn to stop worrying and love the bomb.