# Did the Senate break their own rules by invoking the nuclear option?

Senate Democrats modified the rules of the Senate, invoking the nuclear option

The U.S. Senate voted Thursday to invoke the so-called “nuclear option,” making it possible for Congress to confirm most judicial and executive nominees with just 51 votes (as opposed to the previous 61).

This change to senate rules was once opposed by now Majority Leader Reid

"You have to break the rules to change them in this instance because if you follow the rules, you cannot do it with a simple majority. [...] We cannot go down that slippery slope."--(Sen. Reid, Congressional Record, S.4464, 4/28/05)

Senator Reid's interpretation seems to be correct. The Congressional Research Services report states:

There is an important exception to the three-fifths requirement to invoke cloture. Under Rule XXII, an affirmative vote of two-thirds of the Senators present and voting is required to invoke cloture on a measure or motion to amend the Senate rules. This exception has its origin in the history of the cloture rule. Before 1975, two-thirds of the Senators present and voting (a quorum being present) was required for cloture on all matters. In early 1975, at the beginning of the 94th Congress, Senators sought to amend the rule to make it somewhat easier to invoke cloture. However, some Senators feared that if this effort succeeded, that would only make it easier to amend the rule again, making cloture still easier to invoke. As a compromise, the Senate agreed to move from two-thirds of the Senators present and voting (a maximum of 67 votes) to three-fifths of the Senators duly chosen and sworn (normally, and at a maximum, 60 votes) on all matters except future rules changes, including changes in the cloture rule itself.

Did the Senate break their own rules to only require a simple majority for confirmations of judicial and executive nominees? (if so, which specific rule was broken?)

• Interesting question. The fact that Reid once opposed it doesn't add anything except partisanship to the question, though. – Bobson Nov 25 '13 at 15:00
• @Bobson, it isn't ust that he opposed it. it is that he specifically said it was against the rules. Your answer seems to agree with that, but doesn't mention specifically which rule was being bypassed/broken. – user1873 Nov 25 '13 at 21:23
• I still don't think his opinion is relevant, or at least the quote in question doesn't back it up well. Also, I've edited my answer to include the relevant rules being bypassed. – Bobson Nov 26 '13 at 15:05
• @Bobson, "or at least the quote in question doesn't back it up well." Really? Q:Did the senate break their own rules [...] Reid Quote-""You have to break the rules to change them in this instance because if you follow the rules, you cannot do it with a simple majority. [...]" seems pretty relevant to me. Reid thought changing the rules by a simple majority was breaking the rules in 2005, and my question is did the senate break the rules with the Nuclear Option (that passed by a simple majority). Am I missing something? – user1873 Nov 26 '13 at 15:23
• This is a completely different circumstance... after all he is the one in charge now. That changes everything. – SoylentGray Nov 26 '13 at 16:55

You didn't clarify as to whether you meant "break" in the sense of "This rule expressly prohibits this, but we did it anyway" or in the sense of "This rule is still on the books, but it no longer has any meaning". For clarity's sake, I will refer to the first as violating the rule and the second is invalidating the rule.

The senate didn't violate its own rules, so much as it bypassed them by invoking other rules to invalidate the rule in question. The ability of a simple majority to change the need for a supermajority is why it's called the "nuclear option": a procedural maneuver with potentially serious consequences, to be used as a last resort to overcome political opposition.1

The rule in question is part of Senate Rule XXII:

And if [the cloture question] shall be decided in the affirmative by three-fifths of the Senators duly chosen and sworn -- except on a measure or motion to amend the Senate rules, in which case the necessary affirmative vote shall be two-thirds of the Senators present and voting -- then said measure, motion, or other matter pending before the Senate, or the unfinished business, shall be the unfinished business to the exclusion of all other business until disposed of.

Since rule changes can be filibustered the same as any other vote, cloture can be required on them. The bolded section means that cloture on rule changes needs the full 2/3 supermajority, rather than the lesser 3/5 one. This is an attempt to protect the rules from constant editing. However, it's important to realize that this only affects cloture votes on rule changes. It does not affect votes on rule changes themselves (if no one filibusters and thus requires cloture), nor does it explicitly prevent alternative means of altering the rules which don't require cloture.

That last is what the "nuclear option" entails. The mechanics of the process are discussed on the Wikipedia page:

A point of order is a parliamentary motion used to remind the body of its written rules and established precedents, usually when a particular rule or precedent is not being followed. When a senator raises a point of order, the presiding officer of the Senate immediately rules on the validity of the point of order, but this ruling may be appealed and reversed by the whole Senate. Ordinarily, a point of order compels the Senate to follow its rules and precedents; however, the Senate may choose to vote down the point of order. When this occurs, a new precedent is established, and the old rule or precedent no longer governs Senate procedure. Similarly, it is possible to raise a point of order and state that the standard procedure of the Senate is actually different from what the current rules and precedents suggest. If this point of order is sustained, a new precedent is established, and it controls Senate procedure thenceforth.

This is how it played out. Specifically:

1. Senator Reid raised a point of order. ref 1
2. The point of order was ruled invalid by the chairman, because it wasn't the rule. ref 1
3. Reid appealed the ruling to the full senate. ref 1
4. The senate as a whole voted 48-53 to fail to uphold the chairman's ruling. ref 2
5. The chairman (as required) declared that this introduced new precedent such that that Reid's point of order was now the rule to use going forward. ref 2
6. Senator McConnell raised a point of order that the existing rules prevented exactly this. ref 2
7. The senate as a whole voted 52-48 to sustain the chair's ruling that new precedent was set.ref 2

Thus, rule XXII was invalidated by introducing a precedent for changing it which doesn't violate it. Whether this counts as "breaking" the rule or not is up to you. However, if the rule were actually violated then the change would be invalid, the same way that a senator casting a voice vote of "Cookies" wouldn't count as a valid vote. If the Senate continued operating under violated rules, it would be theoretically permissible for the Executive branch to ignore them (due to the constitutional violation of Each House may determine the Rules of its Proceedings), and would potentially spark a constitutional crisis.

• from your quote, "Ordinarily, a point of order compels the Senate to follow its rules and precedents;" It is difficult to determine if you consder bypassing the rules the same as breaking them.Do you consider the Senaate not following the rules they established, not breaking the rules? – user1873 Nov 26 '13 at 22:09
• No rule was broken here. As per my edit, XXII only restricts cloture on cloture changes, but the rules of points of order don't allow for cloture votes, because they don't allow for debate. So it's a very roundabout - but permitted - way to make changes without triggering the XXII 2/3rds clause. Hence bypassed, not broken. – Bobson Nov 26 '13 at 22:20
• For what it's worth, I do consider it an abuse of the rules on points of orders, I think it was a bad precedent to set, and something that should have been blocked, but it wasn't. – Bobson Nov 26 '13 at 22:21
• By your definition of violation ("This rule expressly prohibits this, but we did it anyway,") they definitely violated the rules. They just used a maneuver that allowed them to ignore that the rules expressly prohibited it. Violating the rules by saying that the rules don't actually mean what they clearly do mean is still violating the rules. – reirab Mar 18 '16 at 18:37
• @reirab - Yep. I'm with you on that. It was a stupid move, even if it did accomplish Reid's short-term goal. And it was most definitely against the intent of XXII, as everyone involved was aware. And as for the rest, agreeing to disagree is probably the most civil end to a discussion I've had on Politics.SE in a long time. :) – Bobson Mar 18 '16 at 20:41

Yes, the Senate broke Rule XXII, that requires a two-thirds supermajority to end debate in the Senate.

The Senate is rather unique in the freedoms that it offers its legislators. Until Rule 22, senators had the opportunity to limitlessly debate any legislation.

Extended Debate All senators have two traditional freedoms that, so far as is known, no other legislators worldwide possess. These two freedoms are unlimited debate and an unlimited opportunity to offer amendments, relevant or not, to legislation under consideration. The small size of the Senate permitted these traditional freedoms to emerge and flourish, subject to very few restrictions. Not until 1917 did the Senate adopt its first cloture rule (Rule XXII). Thus, from 1789 until 1917, there was no way for the Senate to terminate extended debates (called "filibusters" if employed for dilatory purposes) except by unanimous consent, compromise, or exhaustion.

In 1917, the cloture rule was the only formal procedure for ending debate in the Senate.

Cloture: The cloture rule–Rule 22–is the only formal procedure that Senate rules provide for breaking a filibuster. A filibuster is an attempt to block or delay Senate action on a bill or other matter. Under cloture, the Senate may limit consideration of a pending matter to 30 additional hours of debate.

So after Rule XXII was enacted, an attempt was made to only require a simple majority to end debate, but it was unsuccessful. It wasn't until 1975, that Rule XXII was amended by a two-thirds supermajority to only require a three-fifths majority to invoke closure on all matters other than rules changes, or specifically prescribed by the Constitution.