Talk:Nuclear option/Archive 2

Daphne's edit

I'm working on integrating Daphne's edits to the intro. The wording and structure now seems dated, so let's see if we can improve it.--ghost 15:13, 11 January 2006 (UTC)

constitutional option against democrat(communist) party

That's from the first paragraph (as of 01-12-2006, 10pm GMT-8). What on earth? Shouldn't that say "nuclear option"? --Robert 06:10, 13 January 2006 (UTC)

Constitutionality

This article is terribly POV. There isn't even a mention of "legislative entrenchment" and the fact that it is nearly universally considered to be unconstitutional.--70.219.15.40

I understand your concern. I take it your issue with POV is over tone, not fact(s), correct? If there are erronious facts, please help us to correct them, or discuss with us what you feel is incorrect. If you have concerns over tone, please help us understand where you feel the tone creates bias. Could you give us quotes and references on "Legislative entrenchment"? Thanks for your concern.--ghost 16:33, 17 January 2006 (UTC)

Hi, this page needs a lot of work.

LOL - I'm way in over my head cleaning it up but detonating the nuclear option has nothing to do with filibusters. The nuclear option is nuclear because it changes how the Senate changes rules. Now the rules they change with it could be related to filibusters, could be related to any number of things. But nothing about the nuclear option relates directly to filibusters. The two thirds vote required to change Senate rules protected the Senate from being severely buffeted in partisan winds and made bi-partisan work mandatory - nothing could be accomplished without it. But with a simple majority necessary to change rules, one party could very effectively make it impossible for the other party to impact the legislative agenda. The founding fathers designed the system to prevent that very thing from happening. That's why the nuclear option is nuclear - it shatters the template put in place by our founding fathers and substitutes simply partisan intemperance for enforced deliberation. The Democrats may have been the party to oppose it, but it was the Republicans that dubbed it "nuclear" and they did so for a very good reason.

Very few in the media understood or took the time to define what the nuclear option actually was , but it is imperative, of course, that we be very clear here. The discussion of the filibuster rule change should be a small mention on that page and most likely requires a page of its own, or perhaps extended discussion on the page about filibusters.

Now, I have to figure out how to sign my name.

Daphne DeHaviland 19:14, 17 January 2006 (UTC)

I respectfully disagree. This rule change has been considered to a lesser or greater degree since the beginning of the century. And it has everything to do with filibusters. In fact, the two-thirds vote has been watered down on most issues over time, including the filibuster. Finally, the recent debate over the rule change that was referred to as the "Nuclear option" was aimed only at filibusters of judicial candidates. Although I agree that the media did a fair-poor job of reporting the events and their significance, this focus was voiced by Senators precisely because they feared weakening the Senate's filibuster rule more than that.

I appreciate your enthusiasm. And I agree that any Wikipedia article might need work. However, until we refute the evidence offered in the links and references, we should resist a major rewrite of the type you describe.--ghost 19:33, 17 January 2006 (UTC)

The nuclear option is a method to change rules - not a method to end filibusters. By including lots of information about filibusters, you confuse the reader. Yes, of course, Republican proposed invoking it to change the rules regarding filibusters, but it can be used equally to change any rule. I'll see what kind of references I can find. I do know that one person observed that it would reduce the Senate to a game of "Calvin Ball" once unleashed. LOL

Daphne DeHaviland 19:56, 17 January 2006 (UTC)

The GOP position is that the nuclear option can only be applied to constitutional issues, notably advise and consent motions. Rjensen 20:08, 17 January 2006 (UTC)

(indented for clarity-ghost) Do we have bi-partisan consensus on that? If not, perhaps it belongs in the third paragraph. Daphne DeHaviland 20:27, 17 January 2006 (UTC)

Yes, Rjensen, can you please get us a reference on that? I'm curious if they're talking about constitutional advise and consent motions or filibusters on such motions. I think it would help Daphne and me.--ghost 20:43, 17 January 2006 (UTC)

It's my understanding, from statements from GOP Senators, that the "nuclear option" pertained to rules changes surrounding filibusters of judicial canidates only. Not Senate rules in general, as your wording implies. Most Senate rules can be changed by a simple majority. Thus the extensive filibuster references, and the background as to why this change was deemed necessary by some Senators and not others. To remove the filibuster references entirely would be to remove the context the reader needs to understand the issue, and create a POV fork--ghost 20:53, 17 January 2006 (UTC)

Frist repeatedly calls it a "constitutional option" because of the "advise and consent" clause of the Constitution. He seems to me to be saying the Constitution requires a vote on all 'advise & consent' nominees (which indeed is much broader than just judicial nominees). See http://frist.senate.gov/index.cfm?FuseAction=PressReleases.Detail&PressRelease_id=1878&Month=3&Year=2005 Rjensen 10:40, 21 January 2006 (UTC)

Any editors interpretation of someone's use of a word or phrase is the POV of the editor. Therefore, it does not belong here. In order to address the concerns of those who use the minority-usage of "Constitutional option" instead of "Nuclear option", there is a redirect in place for Constitutional option. This is intended to point the reader to the majority-usage of the phrase, without jamming anything down someone's throat.--ghost 01:16, 24 January 2006 (UTC)

We can disagree on whether a simple majority is appropriate to do business in the Senate. But to claim that the Founding Fathers intended for the Senate to be continually gridlocked by its own rules requiring a supermajority takes considerable imagination. There are actually numerous places where the constitution proscribes the required Senate vote--these all ought to be noted in the article. When trying impeachments: "no Person shall be convicted without the Concurrence of two thirds of the Members present." Expulsion: "with the Concurrence of two-thirds, expel a Member." Vote record keeping: "the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal." Veto overide: "being disapproved by him, shall be repassed by two thirds of the Senate."

And then we have this: "The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided."

So the Constitution doesn't say a simple majority. But what kind of absurdity is it if the Senate decides a 4/5 majority is required to pass a bill, but if the President vetos it, then a 2/3 vote is required to repass it? And if anything at all requires a supermajority, when does the Vice President's vote mean ANYTHING AT ALL?

Mdlayt (talk) 05:36, 2 March 2010 (UTC)

I agree that on the whole the article needs a rewrite based on the available sources.[1][2] I've already found substantial errors,[3] and inline cites are sorely lacking. Have a go at it, Mdlayt! -- Kendrick7^talk 05:51, 2 March 2010 (UTC)

Re: Weasel Words

A recent edit by Rjensen attributed the fears over the Nuclear option to a particular political party. In order to support such a change, we'd need referencing and/or a quote. Especially since the article refutes this point.--ghost 14:11, 18 January 2006 (UTC)

try the debate between two senators at http://www.pbs.org/newshour/bb/congress/jan-june05/judges_4-25.html

Rjensen 10:37, 21 January 2006 (UTC)

With due respect for the effort, the article clear points out that the origin of the term "Nuclear option" is bipartisan. The link provided (thank you) is unfortunately insufficient because the interview (and debate in the interview over the term) occured after the effort of party leaders to define usage along partisan lines.--ghost 01:20, 24 January 2006 (UTC)

"In 1995, Democrats held the White House and a majority of the Senate"

This sentence is inaccurate. In 1995, the Republicans had a majority in the Senate. -- 69.19.2.36 19:20, 20 January 2006 (UTC)

Ooops, thx. Good catch. Feel free to fix it yourself, if you like.--ghost 01:32, 24 January 2006 (UTC)

3/5ths Majority

I moved the following here from the end of the first paragraph of this section:

Republicans retort that they have been winning the elections and in a democracy the winners rule, not the minority, and that the Constitution has several supermajorities (such as 2/3 needed to ratify a treaty), and that the Founders did not put in a 3/5 or any supermajority for confirmations. That is the Republicans claim that the Constitution has always assumed a majority vote for confirmations, and that "advise and consent" is a positive mandate for holding a vote.

This needs thourgh referencing to support these statements.--ghost 01:25, 24 January 2006 (UTC)

I put it back. look at http://www.washingtonpost.com/wp-dyn/content/article/2005/05/17/AR2005051701425.html

for evidence. Rjensen 23:51, 27 January 2006 (UTC)

Wow, this has a whole new meaning now in 2009. Do the Republicans still feel the same way as they did in 2006? KenFehling (talk) 08:43, 21 June 2009 (UTC)

I can't speak for the party, but I'm a Republican who still feels the same way about this issue as I did in 2006. Of course, in 2006, I was against the nuclear option and argued that the Senate rules were valid, but there you go. The dangers of seeing the opposition as monolithic when they aren't.- Simon Dodd { U·T·C·WP:LAW } 01:02, 24 June 2009 (UTC)

Cloture Majority?

The current article implies cloture needs a 2/3 majority to pass in the US Senate. This is not true, a 3/5 majority (60 votes) is needed to pass cloture in the Senate. 153.104.16.114 23:30, 27 January 2006 (UTC)

60 votes are needed to end debate for most business; however, changing the rules requires a 2/3 majority. "if that 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" (from Rule XXII) http://rules.senate.gov/senaterules/rule22.php --66.213.222.170 06:57, 28 January 2006 (UTC)

Split Article?

There are two distinct issues in this article: the "nuclear option," which is a parliamentary tactic for changing Senate rules by simple majority vote and which has been employed in the past, and the judicial nominations crisis, which is a political event that might lead to the Republicans using the nuclear option. There should be one article on the "nuclear option" as parliamentary procedure, overviewing its history, and a second article on the "Judicial Nominations Crisis," encompassing most of the material in this article, but better written and balanced (less POV) if possible. --Komandorskiye 08:11, 29 January 2006 (UTC)

POV items

Heading: Historical Backdrop

Characterizing the Abe Fortas issue as a filibuster as a matter of fact is POV because it involves creatively redefining the term filibuster. By definition, a filibuster is a dilatory tactic to thwart the will of the majority. http://www.m-w.com/dictionary/filibuster This necessarily requires that a majority exists in the first place. There was one cloture vote on the Fortas nomination, which did not produce 51 votes in favor of cloture. If the Johnson administration felt that it could have produced 51 votes by calling in the whole senate, it might have done so. However, the point is moot because Fortas withdrew after this vote. Whether this qualifies as a filibuster is a matter that is debatable, at the very least. For sure, the matter has been debated in the media. Thus to characterize this as a filibuster in fact is POV. It would be more fair to say that it has been characterized by some as a filibuster, and name those who so state.

By contrast, the filibusters of Priscilla Owen, Janice Rogers Brown, and William H. Pryor are all clearly filibusters because they all had more than 51 votes in favor of cloture.

Heading: Lines are Drawn

Stating as fact that Trent Lott coined the term "nuclear option" is POV because it is debated, and should be reported as such, rather than as undisputed fact, as is now the case. The authority cited in support of Lott coining the term, "The Clarion-Ledger" of Mississippi, does not attribute the term to Lott, but only quotes Lott as using the term. Furthermore, the cited article, dated May 23, 2003, and presumably quoting Lott no more than 48 hours thence, is predated by at least two other articles using the term: Reuters, Fri May 09, 2003 03:21 PM ET, "Frist Proposes Rule Change on Stalled Nominees," Thomas Ferraro, http://www.warblogging.com/warfarking/mirror/1052539176.html ; and National Review, May 15, 2003, 10:25 a.m., "Nuclear Option, No. Nuclear Response, Yes." Byron York, http://www.nationalreview.com/york/york051503.asp The fact that on-topic articles using the term "nuclear option" in their headline appear weeks prior to the cited article that quotes Lott as merely using the term, where none of said articles attribute the term to Lott, casts grave doubt on any assertion that Lott coined the term. Thus, clearly, no persuasive evidence has yet been cited attributing the term "nuclear option" to Lott here. Absent any clear establishment that Lott coined the term, such should not be stated in the article.

The POV aspect here is that it serves the purposes of one side of the argument to attribute the phrase to the other, since the term is perceived to carry negative connotations, which each side would rather attribute to the other, much like the proverbial hot potato.

So, the question is really how to maintain a neutral presentation when the term itself is a subject of political contestation, because the circulation of one term or the other is seen by participants as a tool for shaping the conversation and assisting in the achievement of tactical objectives. I can't see how this is addressed in the POV guidelines. The proposal to just use one or the other seems like the wrong way to go. As it currently stands (March 11, 2010), the article uses "nuclear option" but notes the origin of "constitutional option" as a later-introduced counter-term. That seems to mirror the debate as it unfolded. I also proposed adding more terms to show the variability of the terminology itself, using an article that noted three additional monikers (Glowka et al.). This edit was rejected, but it still seems to me like a viable proposal that evades the nuclear / constitutional frame battle. Thoughts? Isthatso7 (talk) 21:03, 11 March 2010 (UTC)

Heading: Three-Fifths Majority

The second sentence of the second paragraph states: "In all other matters, the Constitution gives the Senate the power to make its own rules." Citing Article I, Section 5 of the Constitution. This statement is POV because it presumes to state as fact what is actually a matter of unresolved constitutional interpretation. The current status quo is that in all other matters the Senate may make its own rules. However, to attribute that status quo to the constitution is well over the line. In other words, the article states as fact what is actually one side of an unresolved argument. The other side of the argument is that a reading of the second paragraph Article II, Section 2 requires that presidential nominees be given an up or down vote by the Senate. This latter side of the argument is the "Constitutional" essence of the "Constitutional option" in the first place. In terms of status quo, the Senate observes its own rules. The question as to what the Constitution has to say about the issue is the essence of the entire debate over the "Constitutional Option." Both sides should be fairly presented. Furthermore, absent a clear interpretation by the U.S. Supreme Court, it is clear error to state as fact what is actually a matter of as-yet uninterpreted constitutional law. See same article: Heading: A Simple Majority

Heading: A Change to Senate Rules

The last sentence of the first paragraph states: "The nuclear option is 'nuclear' because it allows a simple majority of senators (51) to circumvent these rules, end debate, and force a final vote on the filibustered business." This is POV because of it's characterization of "circumventing" Senate rules. The argument behind the constitutional option, eradicated in the article as shown above, is that the Constitution requires an "up or down vote" for presidential appointments. It is indisputable that the Constitution trumps Senate rules, and therefore, the term "circumvent" is POV. The only question here is the proper interpretation of the Constitution. That question should be left as a question, since it still is a question in fact.

Furthermore, the statement is incorrect. The constitutional option is "termed the 'nuclear option,' because it threatens to engulf Washington in partisan warfare and stop virtually all business in the Senate." http://www.sfgate.com/cgi-bin/article.cgi?file=/c/a/2005/04/22/JUDGES.TMP&type=printable

Post entitled "POV Items"

This post was intended show as posted by me.

Robert Byrd and the Nuclear Option

With respect to 24.218.45.117, the parliamentary procedure used by Byrd and that contemplated by the Republicans is identical. The difference is that Byrd used the nuclear option to end dilatory tactics that were not filibusters in the present sense, whereas the Republicans intend to use it against filibusters of judicial nominees. (Although Byrd did threaten to use the nuclear option in the early 70's against a filibuster, and this threat was instrumental in the Senate agreeing to lower the cloture threshold to 3/5 from 2/3). One can make the argument that the threatened Republican use is more disruptive, so the difference in target probably does need to be acknowledged. But the procedural maneuver is the same, and I have amended the article text accordingly --Komandorskiye 16:01, 20 April 2006 (UTC)

POV much?

Does anyone else feel this article is terribly skewed in favor of the Constitutional option? I am preparing a massive re-write of certain sections, with better wiki links and neutral language that doesn't express or hint at the underlying feelings of the editor, as I feel the current article does. But I am eager to hear the views of others. JasonCNJ 20:14, 8 June 2007 (UTC)

The constitutional option or threat of it has been used by both parties on a wide variety of issues. The current intro makes it sound like the issue first came up in 2005. But that was just when the name "nuclear option" was coined. Kauffner 06:54, 15 July 2007 (UTC)

Updating needed

This article reads as though the Republicans were still in charge of the Senate. An updating/clarification is needed, if any of the authors of the article are still around. What would be particularly useful is a description (provided a verifiable source for it exists) of the current feeling about the nuclear option now that the Democrats hold a practical majority in the Senate. --Tim4christ17 ^talk 04:46, 5 July 2007 (UTC)

Citation Needed

The opening paragraph says, "Although it is not provided for in the formal rules of the Senate, the procedure is the subject of a 1957 parliamentary opinion and has been used on several occasions since." Citation is needed for that.

I'm not sure that is true. It works one of two ways: one can stop a filibuster with a simple majority, in which case there is no such thing as a filibuster, or you can't stop it with a simple majority. If the filibuster was stopped with only a simple majority a long time ago, then how do they force debate? How, and why, does any filibuster stand?

Please excuse my rhetorical questions. Please provide a citation for the first statement, and add it to the article. If this was used before, then the article should be made up of the times it was used, and not the times it wasn't used. —Slipgrid 14:51, 6 September 2007 (UTC)

This sentence reappeared in 2010 - along with the claim that the procedure is "rarely used." But no one has provided a good citation to show that the procedure as described here has actually been used (i.e., has been successful). The only instance discussed here is the unsourced claim that it was used three times in 1975. Whether or not the option has been used would seem to be a critical piece of information for this article. Isthatso7 (talk) 02:48, 11 March 2010 (UTC)

As of 2008

Well, egg on my face. I hadn't considered the states that hadn't existed at the time the Consitution was written when determining what 3/5 of the Senate is. At any rate, I still believe that it is a redundant line to include. I'll bring it here, since technically speaking the number of states is dynamic, but I seriously doubt there is any chance of the number changing. Besides, the number was fifty when this term came into being. Now, if you'll excuse me, I'll go and put my US History dunce hat on. seresin | wasn't he just...? 02:13, 11 March 2008 (UTC)

One of these days Puerto Rico is likely to decide that it wants to be a state. -- Zsero (talk) 02:23, 11 March 2008 (UTC)

The 3/5 rule is a rule of the Senate adopted in 1975; Nothing to do with the constitution. Kauffner (talk) 04:16, 29 October 2009 (UTC)

Confusing

The article compares the votes for Supreme Court judges to those of lower level Federal Courts judges. It seems to me this is confusing/misleading since there may naturally be a difference in the support for judges of lower level courts for a variety of reasons. Worse, not all readers may realise the difference Nil Einne (talk) 18:08, 15 May 2009 (UTC)

Grammar &c.

Advise and Consent: various tweaks: "Advice and consent" is a noun, what the Senate is to give. "Advise and consent" is the process by which it is generated. Thus, changed `advi[cs]e' as needed. The text of the Constitution was in error; moved the ellipsis. "Opponents contend": The text is not in contention, the interpretation of "Advice" is; moved those two words & repunctuated. Max Hyre (talk) 23:22, 16 September 2009 (UTC)

Out of date

Parts of the article are phrased as if we are still during the 2004-2008 presidency. Fixing this requires some changes of tense and perspective. (Is there a template available to warn of this problem on the article page?) Eclecticos (talk) 03:41, 29 October 2009 (UTC)

Climate Change Bill

Should there be a mention of its possible use wrt the climate change bill? Eg. http://www.guardian.co.uk/environment/2009/nov/13/america-climate-change Thanks! Mike 129.215.149.99 (talk) 15:01, 14 November 2009 (UTC)

Changing Senate rules

The article states that changing Senate rules requires 2/3. It is my understanding that this is true as long as the rules are considered to be "continuing" from past sessions, and that at the beginning of a "new" senate a (new?) member could object to this policy of continuation. I don't know exactly what procedure would follow, but I believe that a simple majority could eventually force the rules to be considered de novo, and thus bring about a change in rules. The downside would be that the debate on new rules would delay other business, and it would open the door for the same tactic to be used in the future. Also, I don't know what rules would preside during the debate on the rules - if a filibuster were possible then, then 40 pro-filibuster senators could completely tie up the senate for as long as they held out (unlike the current filibuster, which essentially just works as a veto and moves the Senate on to the next item of business).

This would be less of an abuse of process than the traditional "nuclear option". It would not be saying "we've been doing the filibuster unconstitutionally for 50 years, and we're tabling debate on that matter." It would be saying, "we could have been voting on rule changes at the beginning of each session, we just chose not to."

AFAIK, the above is original research that I read once on "Congress Matters", and thus ineligible for inclusion in Wikipedia without a stronger source. However, the 2/3 statement should still be qualified in some way. Somebody who knows more than I should do this. 187.143.8.233 (talk) 04:16, 2 December 2009 (UTC)

You have an excellent point. IIRC using such a procedure is akin to the "nuclear option," and it was what was used to change the cloture threshold from 2/3rds to 60. Supposedly (but I'm not at all sure on this one) that use of the nuclear option led to a minority to filibuster and otherwise tie up the Senate, until a compromise was made whereas future rule changes (by Senate precedent) were to be by 2/3rds votes only. I believe articles detailing these things are available if one searches magazine articles written around the time the controversial judicial nominations were being made. Ngchen (talk) 05:27, 2 December 2009 (UTC)

The rules could also be changed by standing order. In general, the majority sets the rules, if they care to set them ;)

Read section five, starting at page 269:

http://www.law.harvard.edu/students/orgs/jlpp/Gold_Gupta_JLPP_article.pdf

24.209.227.186 (talk) 21:56, 19 January 2010 (UTC)

Overly simplistic references to "2/3" and "3/5"

I had to put this in the article, and am shocked nobody on this page seems to know the difference. The original 2/3 rule was 2/3 of THOSE VOTING. If only 90 Senators were present, cloture could be invoked by 60. When the 3/5 compromise was agreed to, it became 3/5 of the entire Senate. This means 60 (no matter how many are voting) if there are no vacancies, but with 2 vacancies cloture requires only 59. Look it up. ([[User:roricka] 22 Jan 2010) —Preceding unsigned comment added by contribs) 06:00, 23 January 2010 (UTC)

Origin of term "constitutional option"

There has been some back and forth over when the term "constitutional option" originated. The current sourcing - to Tim Noah's assertion in Slate - is insufficient. What is Noah's source? The Gold & Gupta article, which served as the most prominent historical evaluation of the term during the fight over Bush's nominees, finds no use of the term "constitutional option" before the article itself. It makes sense to be precise about this, since the term circulated as a Republican substitute for "nuclear option" and does not appear to have been in widespread use (or any use at all) before that. Does anyone have any additional information? --Isthatso7 (talk) 19:01, 25 February 2010 (UTC)

It's not too hard to find both terms in use before 2005.[4] I'm still poking around for something definitive. -- Kendrick7^talk 19:50, 25 February 2010 (UTC)

This is an academic article which predates the talking heads by a few months.[5] "Sets forth the history of the constitutional option in the U.S. Overview of the Senate rules governing debate; History of the filibuster." Google says it was published September 1st, 2004. -- Kendrick7^talk 19:56, 25 February 2010 (UTC)

Ah I guess that is the Gold and Gupta article... well, I haven't read the whole thing yet, but I don't see where it suggests it is coining a new phrase. It seems pretty clear that's what it was called back in 1917, AFAICT. -- Kendrick7^talk 21:45, 25 February 2010 (UTC)

Interesting. You're right that Gold and Gupta don't suggest that, but every single use of the term "constitutional option" is their own, no? As an historical matter, it looks to me that what happened is this: the procedure had no real name until 2003, until Lott called it the "nuclear option" and Jay Sekulow and other folks tried to counter that term with the name "constitutional option." During the 2003 battle, two frames arose about how to talk about this procedure - one positive and one negative. Part of the battle over the frame was who used what term and when, but as an empirical matter, it looks like everything started in 2003. Does that seem wrong to you? I just haven't seen any verified quotes that date either term before 2003, although some folks have asserted that the term existed before them, for example in 1917. But I'm happy to be proven wrong!

--Isthatso7 (talk) 23:06, 25 February 2010 (UTC)

Hmmm, let me mark this as dubious for the moment. It's possible that Noah's timeline is mixed up; Lott may not have used the phrase himself until 2005, but he inspired the term in 2003, which does predate the Harvard study, and you are right -- they don't seem to quote anyone using the exact phraseology that I've seen so far. At the same time, they don't address the matter which is an odd oversight, but this may have been simple bias on their part (Gold, at least, seems to have been in the employ of Bill Frist around this time,[6] when Republicans were cheering the "nuclear option" on) but not entirely unreasonable. I'll keep poking around and see if I can get through to Slate's corrections department via email, and will follow up soon. -- Kendrick7^talk 02:37, 26 February 2010 (UTC)

OK, Isthatso7, you appear to be completely right. I contacted Slate's corrections folk and Noah gave this good ref[7] as his basis, which doesn't say what he thinks it says at all. I'm really really busy IRL right now, but feel free to fix it. -- Kendrick7^talk 05:19, 2 March 2010 (UTC)

Thanks for doing the leg work on that. I think that one part looks pretty good now!--Isthatso7 (talk) 05:09, 5 March 2010 (UTC)

Gold & Gupta give an example of a senator using the phrase "constitutional option" in 1959 on page 244. The earliest example in the Google news archive is from 1999.[8] Kauffner (talk) 17:01, 5 March 2010 (UTC)

I believe that's just a formatting error; note that G&G always introduce long quotes with a colon, so the sentence ending in a colon containing the phrase is likely something they wrote, and is not from the 1917 congressional record cited thereafter. The 1999 usage is unrelated and was merely a turn of phrase used in the context of the impeachment of Bill Clinton. -- Kendrick7^talk 20:09, 5 March 2010 (UTC)

I think that the conclusion still stands that the use of the term "constitutional option" began at roughly the same time as the term "nuclear option," as a less threatening, consciously crafted substitute. Perhaps this is only interesting for people who care about the creation and circulation of political language. But if we identify the term "nuclear option" as originating in 2003, we should also identify the origin of the term "constitutional option." They're both recent inventions forged in a particular context in which the term itself was part of the dispute; participants thought the words were important. Identification of other terms used in parts of the debate, as discussed in a somewhat toungue-in-cheek fashion by Glowka ("Byrd option, ExLax option, turnip-truck option") helps to relativize the terms and avoids adoption of a particular frame. No? Isthatso7 (talk) 17:42, 11 March 2010 (UTC)

POV: use of "Faux News" in Other uses of "nuclear option"

I switched the use of "Faux News" to "Fox News" in the Other uses of "nuclear option" section. This triggered me to think that this wasn't a neutral article, but I haven't sifted through all the text. Cam295 (talk) 19:10, 2 March 2010 (UTC)

Good catch. There's probably not too much POV here, since pretty much everyone with a biased POV was for it before they were against it or vice versa. -- Kendrick7^talk 21:33, 2 March 2010 (UTC)

I don't think that there are any other substantial problems with neutrality here. The problem with the article is that it has three layers: (1) a discussion of the 2003-05 controversy over the threatened use of the nuclear option, which generated discussions of (a) the judicial nominations process and (b) historical precedent for altering filibuster rules by majority vote (Gold & Gupta are a move in this game, not an objective analysis), (2) a related battle over the appropriate terminology, and (3) a series of retrospective appropriations of the dispute for later controversies of one sort or another, including whether the term "nuclear option" can now be employed to mean a wider variety of actions. The article is heavy on (1) although without the appropriate amount of self-awareness, less good on (2) and (3). But I don't see any big POV problems like the one noted above, so I'd propose that the neutrality warning be taken off. Isthatso7 (talk) 22:37, 12 March 2010 (UTC)

Unconstitutional?

The nuclear option does not "declare a particular Senate procedure, such as the filibuster, unconstitutional." The Supreme Court decides constitutionality. The Senate has the last word on whatever its internal rules are. Kauffner (talk) 16:26, 5 March 2010 (UTC)

1975 precedent, "use" and Gold & Gupta article

This really needs to be resolved in some satisfactory way to have a good and useful article here. Was the nuclear option ever "used"? The question can only be resolved by determining what the nuclear option actually is. Characterizing the relevant precedents is part of the dispute over the procedure, so it is probably hard to get this right in a neutral fashion.

Unfortunately, the only substantive scholarly article out there is the Gold and Gupta article, which is also an advocacy piece - it's an attempt to lay out the historical support for the use of the procedure in the context of the 2003 - 05 disputes. [According to the bio on the article itself, Gold was apparently a Frist aide when the paper was written.]

The Gold and Gupta article is also repeatedly used here as a source for contending that the nuclear option was "used." But they don't say that. They say the option was "endorsed" or "supported" three times in 1975. They also say that it was "threatened" but not that it was "exercised." The relevant passage is this, from p. 260:

Each time the Senate rules have been amended, the body has followed the rules-change procedures set forth in the rules themselves. Yet, on at least four occasions those changes were forced by attempts to use the constitutional option. In 1917, 1959, 1975, and 1979 amendments to the Senate debate rules passed that might well not have happened but for the threat that the constitutional option might be exercised.

Perhaps the majority in the Senate can "use" a procedure by threatening to employ it. Procedures in a deliberative body may in fact be more useful if they are threatened rather than used, as the history (and eventual demise) of the filibuster in the House seems to show. But that meaning of the word "use" is very different from the other, more natural meaning: the procedure is actually implemented and the results of that implementation are attained.

[For criticism of Gold & Gupta's use of Senate precedent, see Michael Gerhardt, The Constitutionality of the Filibuster, 21 Const. Commentary 445, 478 (2004).]

Isthatso7 (talk) 16:26, 11 March 2010 (UTC)

The were three votes in 1975 in which the Senate achieved cloture by majority vote using motions that cite the constitution, i.e. the nuclear option was used three times. (See G&G, p. 257-258) That these votes were reversed later on doesn't eliminate the precedent that was established. Kauffner (talk) 22:10, 11 March 2010 (UTC)

How do you explain the passage above? Gold and Gupta say only that the nuclear option was threatened and "endorsed" but not used, and nobody else has provided a verified alternate explanation. Gerhardt says that these instances aren't instances of the nuclear option being used.Isthatso7 (talk) 22:36, 11 March 2010 (UTC)

Isthatso7 mentioned above that the Gold & Gupta is the only substantive scholarly article, but there are also some reports from the Congressional Research Service that are neutral and well researched, relating to the nuclear option:

• 2004-12-06 Constitutionality of a Senate Filibuster of a Judicial Nomination, Jay R. Shampansky, RL32102 16 pages, examines both sides of the issue whether filibuster of nominations is unconstitutional, reaches no conclusion
• 2005-03-28 "Entrenchment" of Senate Procedure and the "Nuclear Option" for Change: Possible Proceedings and Their Implication, Richard S. Beth, RL32843 35 pages, long and detailed
• 2005-04-05 Changing Senate Rules or Procedures: The "Constitutional" or "Nuclear" Option, Betsy Palmer, RL32684 13 pages
• 2005-07-26 The "Memorandum of Understanding": A Senate Compromise on Judicial Filibusters, Walter J. Oleszek, RS22208 7 pages, summary re Gang of 14

— Mathew5000 (talk) 06:00, 19 November 2012 (UTC)

Reconciliation

There are certainly people who confuse the nuclear option with reconciliation, but these people are just confused. I don't think it is appropriate to give this issue a partisan spin. It is technically possible to filibuster reconciliation by proposing one amendment after another. Up to now, there has been a gentleman's agreement not to do this. But that's not likely to hold if the procedure is used in the case of Obama's health care bill. In the last few days, Reid and the White House have backed off on the whole idea of reconciliation anyway. If they really wanted to do it, there would been some action by now. After all, the proposed tax on "Cadillac Plans" is eligible for reconciliation without bending any of the established rules. Kauffner (talk) 22:10, 11 March 2010 (UTC)

Kauffner, you need to let stand the paragraph clarifying that there has been attempts to conflate the two procedures - reconciliation and the nuclear option. This shouldn't be up for debate. Shiznaw (talk 7:08, 15 April 210 (UTC)

It is still possible for the minority to delay a vote indefinitely under reconciliation. People on both sides are confused and imagine that it is somehow possible to ram a big partisan piece of legislation through using reconciliation -- in other words, they imagine that reconciliation is effectively the same as the nuclear option. The entire paragraph is based on a few items of recent commentary that have already been forgotten and certainly wouldn't pass the ten year rule. Kauffner (talk) 15:04, 15 April 2010 (UTC)

"Extremist" judges - section should be deleted

I tagged '"Extremist" judges' as "off topic" as the details had nothing to do with the nuclear option. This entire section can be summarized in one or two sentences and merged into the next section. There is no reason to go into the controversies of politics/philosophy of Janice Rogers Brown and Priscilla Owen (this is covered in the individual articles about the judges). The actual judges are not that important to the article: the debate on the viability and constitutionality of the nuclear option were. 147.70.242.54 (talk) 18:15, 15 March 2010 (UTC)

Constitutional requirement?

The problems with this article, which are many, begin in the first sentence. There is no constitutional requirement that the will of a majority of the senate rules. The only uses of the word "majority" in the constitution are in regard to who is legally the president of the United States.

I don't know if there's an easy way to write this article but let me clear something up: there is more than one use/instance of the word "majority" in the Constitution of the United States. Look it up before you make such claims. JasonCNJ (talk) 16:26, 29 April 2010 (UTC)

It's a constitutional requirement in the sense that this is what the Supreme Court ruled in United States v. Ballin (1892) and issue has not been revisited. The nuclear/constitutional option has been used several times, so it is also part of senate precedent. Kauffner (talk) 07:50, 3 December 2010 (UTC)

Actually, I believe, although strangely sources are sparse in this area, that the nuclear option wasn't actually used, at least not literally. But it was held out as a very big threat, which forced unwilling Senators to compromise and join the 2/3rds making rule changes. The US v. Ballin case dealt with quorums, and did not specifically deal with the limits of Article I, Section 5 rulemaking powers. A further wrinkle is that the House expires at the end of each Congress, so each new house may (must?) make new rules at the outset. The Senate considers itself a continuing body, so there is no "new" Senate. But yes, there is the troubling question of whether a bunch of long-dead Senators could bind their successors using the rules, aka legislative entrenchment. Ngchen (talk) 15:27, 3 December 2010 (UTC)

The cloture-by-two-thirds-vote rule was adopted in 1917 in response to the threat of the constitutional option. This action wouldn't have been possible if the validity of this option was seriously questioned. If the presiding officer follows precedent, the issue doesn't come before the senate. But Humphrey in 1967, Rockefeller in 1975, and Byrd in 1977, 1979 and 1980 all disregarded precedent, argued that the constitution came first, and put the issue to the Senate anyway. The speaker of the house makes creative rulings all the time and in theory the president of the senate is equal in status. Regardless of how the issue comes before the Senate, a simple majority vote is a final decision. Kauffner (talk) 12:33, 5 December 2010 (UTC)

Again, sources? I hear that sources pro and con are trying hard to spin things their way. We must be careful to not violate original research rules or NPOV rules. I remember reading a series of articles on Findlaw, none of which are definitive. Again, the House may be very different, since the notion that each house is a "new" house is not seriously questioned. The House has its own 2/3rd rule in its rules; aka suspensions (generally used for uncontroversial stuff). I doubt anyone can claim that a bill "passed" say with a 220-215 when considered under suspension. Generally if such a vote happens, a subsequent regular vote will be held to pass it. But then again, such has probably not come b/f the courts. Ngchen (talk) 03:04, 6 December 2010 (UTC)

My sources are Gold & Gupta and CRS. Do you imagine that in all the thousands of rulings the presiding officer of the Senate has made in the last 220 years, he has never disregarded precedent? Kauffner (talk) 05:24, 6 December 2010 (UTC)

Which precedents are you referring to? Yes, it is true that precedents have been overruled in the Senate, but how does such precisely refer to the nuclear option? Ngchen (talk) 15:06, 6 December 2010 (UTC)

When the presiding officer disregards precedent against the wishes of a substantial faction of senators, that's the nuclear option. "Overruling" suggests the Senate votes to reverse a precedent, which is a different thing. The precedents for disregarding precedent? I listed them in my 5 December post. The CRS paper discusses the 1967 case in detail. Senator McGovern moved that the Senate adopt a rule to lower the threshhold for cloture. Senator Dirkson responded with a point of order stating that McGovern's motion circumvented the rules of the Senate. If Vice President Humphrey had followed precedent, he would have ruled in favor of Dirkson. But instead he put the matter to the Senate for a vote. (Dirkson's point was sustained 59-37.) Kauffner (talk) 06:31, 8 December 2010 (UTC)

So am I correct in thinking that the Senate upheld the 2/3rds supermajority to change the rules per the rule-change-rule? IOW, the attempt by McGovern to use the nuclear option failed? Ngchen (talk) 14:55, 8 December 2010 (UTC)

McGovern's motion dealt with cloture in general. The was no separate cloture rule for rule changes in 1967. The rule adopted in 1917 required a two-thirds vote for cloture across the board. In 1975, Rockefeller put the cloture issue to the Senate in the same way Humphrey had with the result being that the threshhold was reduced to the current 60 percent. (In a way, this is even more restrictive than the rule used in 1917-1975: It is 60 percent of all senators, not just those present.) Kauffner (talk) 16:05, 9 December 2010 (UTC)