Standing Order and Rulemaking Statute: Possible Alternatives to the "Nuclear Option?"

CRS Report for Congress
Standing Order and Rulemaking Statute:
Possible Alternatives to the “Nuclear Option”?
April 20, 2005
Christopher M. Davis
Analyst in American National Government
Government and Finance Division

Congressional Research Service ˜ The Library of Congress

Standing Order and Rulemaking Statute:
Possible Alternatives to the “Nuclear Option”?
Concern over the Senate’s inability to reach a vote on certain pending
nominations has led some Senators to express an interest in amending or bypassing
the supermajority requirement to limit consideration now required by Senate rules.
Such an approach to ending filibusters, dubbed the ‘nuclear’ or ‘constitutional’
parliamentary option, might be accomplished in several ways, some of which,
opponents argue, could violate Senate rules or precedents.
It might also be possible to institute new consideration limits on nominations
by establishing a new standing order or by statutory provisions having the force of
rules. Action in either of these forms might have advantages over both standing rule
amendments and precedential action, but might also present special obstacles.
The purpose of this report is to examine advantages and disadvantages of
limiting Senate consideration by these forms.
This report will be updated as needed.

The “Nuclear” or “Constitutional” Option to Limit Debate.............1
Standing Orders...............................................2
Rulemaking Statutes...........................................3
Potential Advantages and Arguments in Favor.......................4
Not “Nuclear”............................................4
Lower Cloture Threshold, No Notice Required...................4
Facilitates Coalitions.......................................5
Pre-enactment Flexibility....................................5
Post-enactment Flexibility...................................5
Clarity ..................................................5
Lasting Fix...............................................6
Potential Disadvantages and Arguments in Opposition.................6
Debatable ................................................6
Limits Discretion of Committees and Leadership.................6
Could Alter the Senate’s Nature..............................6
Tilts Constitutional Checks and Balances.......................7
Perception That Change is Unwarranted........................7
Senators Might Lose Power..................................7
Unclear Outcome..........................................7

Standing Order and Rulemaking Statute:
Possible Alternatives to the “Nuclear
The “Nuclear” or “Constitutional” Option to Limit Debate
Paragraph 2 of Senate Rule XXII, commonly known as the “cloture rule,” was
adopted by the Senate in 1917. The rule, which has been amended six times over the
intervening years, established a procedure by which the Senate might limit debate by
supermajority vote and enable itself to reach a vote on a pending measure or matter.1
Short of obtaining unanimous consent, invoking cloture is the only way the Senate
can limit consideration and enable itself to reach a vote.
Recently, concern over the Senate’s inability to reach a confirmation vote on
certain pending nominations has led some Senators to express an interest in finding
a way other than the supermajority requirements of Rule XXII to limit consideration2
and assure a vote on these nominations. A proposal to strengthen consideration
limits by amending the Standing Rules of the Senate would require a day’s written
notice and would be debatable. In addition, obtaining cloture on such a proposal
would require a special higher supermajority of two-thirds present and voting, rather
than the three-fifths of the body required for other matters including nominations.
Due to this difficulty, some have sought other alternative means of altering the rules.
The main one under discussion has been establishing the limitations through
precedential procedural motion. Such an approach, dubbed by various parties the345
“nuclear option,” the “constitutional option,” and the “Byrd option,” would seek
to end debate by means other than the supermajority vote that Rule XXII requires.

1 U.S. Congress, Senate Committee on Rules and Administration, Senate Cloture Rule,
Limitation of Debate in the Congress of the United States and Legislative History of
Paragraph 2 of Rule XXII of the Standing Rules of the United States Senate (Cloture Rule),thst
committee print, 99 Cong. 1 sess. (Washington: GPO, 1985).
2 CRS Report RL32149, Proposals to Amend the Senate Cloture Rule, by Christopher M.
Davis and Betsy Palmer.
3 Charles Hurt, GOP Senators Keep ‘Nuclear Option’ In Reserve For Judges, Washington
Times, May 7, 2003, p. A6.
4 Charles Hurt, “Support Falters for the ‘Nuclear Option’,” The Washington Times, Mar. 23,

2005, p. A1.

5 Sen. McConnell (R-KY), remarks on Fox News Sunday, Mar. 27, 2005: “[t]here is on the
table what could best be described as the ‘Byrd option,’ because when Senator Byrd
[D-WV] was majority leader of the Senate, he, too, had several occasions upon which there
were rulings from the chair that changed precedents that had seeped into common use in the
Senate that he thought should be reversed, and a majority of the Senate decided to do that.”

There is no single definition of the “nuclear” or “constitutional” option. Most
observers suggest that it refers to the use of a ruling by the Senate’s presiding officer,
perhaps coupled with a majority vote of the chamber affirming the ruling, that debate
could be brought to a close by majority vote, rather than the supermajority called for
in Rule XXII.6 This ruling might be made in response to a point of order that the
supermajority cloture threshold of Rule XXII is unconstitutional, or that further
debate on a given measure or motion is dilatory.7 Others have suggested that such
a proceeding might involve breaking a filibuster using elements of general
parliamentary law not in Senate rules, such as the previous question motion, whereby
debate ends by simple majority decision.8
The term “nuclear” was first coined by Senate supporters of such action to
emphasize the drastic nature of their proposed filibuster-breaking tactic.9
Subsequently, opponents have embraced the term to describe what they characterize
as the likely negative fallout from the unprecedented use of such proceedings in a
body that traditionally has processed much of its work by unanimous consent and
with an eye toward Senatorial comity. The proposed action would be “nuclear,”
opponents argue, because it would upset the foundation of Senate rules and
precedents that permit the chamber to maintain regularity in its proceedings.
It might also, however, be possible to institute new consideration limits on
nominations by establishing a new standing order or by statutory provisions having
the force of rules (“rulemaking provisions”). Action in either of these forms could
establish a form of majority cloture for entire classes of nominations, thereby
enabling the Senate to reach a vote on them. These approaches might have
advantages over both standing rule amendments and precedential action, but might
also present special obstacles. This report examines the advantages and
disadvantages of limiting Senate debate by rulemaking statute or standing order and
poses arguments in favor of, and in opposition to, these forms.
Standing Orders
Standing orders are regulations that have the force and effect of a rule, but are
not contained in Standing Rules. Senate standing orders continue in force until they
are altered or repealed, and may be adopted by simple resolution or by unanimous
consent. Existing Senate standing orders govern a wide range of chamber business
from the simple (the annual public reading of George Washington’s farewell

6 CRS Report RL32684, Changing Senate Rules: The ‘Constitutional’ or ‘Nuclear’ Option,
by Betsy Palmer.
7 For additional information, see CRS Report RL32843, ‘Entrenchment’ of Senate
Procedure and the ‘Nuclear Option’ for Change: Possible Proceedings and Their
Implications, by Richard S. Beth.
8 CRS Report RL32149, Proposals to Amend the Senate Cloture Rule, by Christopher M.
Davis and Betsy Palmer.
9 Charles Hurt, “GOP Senators Keep ‘Nuclear Option’ In Reserve For Judges,” The
Washington Times, May 7, 2003, p. A6.

address)10 to the complex (the creation and operation of the Senate Committees on
Ethics and Intelligence).11 Senate standing orders are printed in a specific section of
the Senate Manual.12
Some standing orders relate to the consideration of nominations. The referral
of certain Department of Energy nominations to committees, for example, is
governed in part by the terms of special orders adopted by the Senate in 1990.13
Some of these standing orders already mandate expedited consideration of specific
nominations. For example, on January 15, 2003, the Senate adopted a standing order
relating to nominations to the position of Inspector General at certain federal
agencies. Majority Leader Bill Frist proposed the standing order in the following
Mr. President, I ask unanimous consent that nominations to the Office of
Inspector General ... be referred in each case to the committee having primary
jurisdiction over the Department, Agency, or entity, and if and when reported in
each case, then to the Committee on Governmental Affairs for not to exceed 20
calendar days ... I ask unanimous consent that if the nomination is not reported
after the expiration of that period, the nomination be automatically discharged14
and placed on the Executive Calendar.
While this standing order placed time limits only on a sequential referral of a
nomination, a standing order might be adopted by unanimous consent or simple
resolution that sets more or less stringent terms of consideration for classes of
nominations both in a primary committee and on the Senate floor.
Rulemaking Statutes
Rulemaking statutes are laws that establish special procedures for the
consideration of specific measures or types of measures in one or both chambers of
Congress. Many of these laws are called “fast track” or “expedited procedure”
statutes because they include provisions mandating timely floor scheduling of
legislation and limiting committee consideration, floor debate, and amendment.15
Congress sometimes chooses to apply expedited procedures to specific measures
because the regular legislative procedures of Congress are time-consuming and do

10 U.S. Congress, Senate Committee on Rules and Administration, Senate Manual, S. Doc.

107-1, 107th Cong., 1st sess. (Washington: GPO, 2002), Sec. 69.

11 Ibid., sec. 94.
12 Ibid., secs. 60-114.
13 Sen. Mitchell, remarks in the Senate, Congressional Record, vol. 136, Jun. 28, 1990, pp.
16573-16574. For further information, see CRS Report RL30959, Presidential Appointee
Positions Requiring Senate Confirmation and Committees Handling Nominations, by Henry
14 Sen. Frist, remarks in the Senate, Congressional Record, daily edition, vol. 149, Jan. 15,

2003, p. S994 (emphasis added).

15 CRS Report 98-888, “Fast Track” or Expedited Procedures: Their Purposes, Elements
and Implications, by Christopher M. Davis.

not guarantee that a given measure will be considered quickly or at all. Numerous
expedited procedure statutes are now in effect, including well-known examples such
as the Congressional Budget Act of 1974 [2 U.S.C. 682-84 and 688], the Trade Act
of 1974 [19 U.S.C. 2101], and the Defense Base Closure and Realignment Act [10
U.S.C. 2903, 2904 and 2908].16
While existing rulemaking statutes deal with the consideration of legislation, if
Congress chose, it could use this device to regulate nominations. A rulemaking
statute, could, for example, set time limits on Senate committee consideration of a
nomination, create devices to ensure that the Senate can discharge a committee from
further consideration of a nomination, and mandate an automatic floor vote on it after
a specified period of debate. Such terms could apply to just one nomination, or entire
classes of nominations, such as those to judicial or national security positions.
Most rulemaking statutes contain language declaring them to be enacted
pursuant to the constitutional rulemaking power of Congress contained in Article I,
Section 5, and reserving the right of the chamber affected to change them on its own
authority, the same as any other rule, without requiring another enactment of a
Potential Advantages and Arguments in Favor
Using either a rulemaking statute or standing order to limit Senate consideration
of nominations would likely have advantages and disadvantages for both individual
Senators and the Senate as an institution. This section discusses possible advantages
and the next section of this report identifies possible disadvantages.
Not “Nuclear.” As has been noted, the term “nuclear” has been used by
observers to describe the severity of the tactic and its potential effect on Senatorial
comity. A rulemaking statute or standing order could not be considered “nuclear” in
either of these ways; rulemaking statutes are laws and are enacted in the same
procedural manner as all laws. Standing orders also follow the regular order.
Mandating limits on consideration of nominations in either form would violate no
rule or precedent. For this reason, proposals in these forms might be less likely seen
as departures from Senate norms.
Lower Cloture Threshold, No Notice Required. A potential advantage
of using a rulemaking statute or standing order over some other parliamentary
approaches to limiting consideration is that invoking cloture on these measures
would require the votes of only three-fifths’ of those chosen and sworn (60 Senators
if there are no vacancies), rather than the two-thirds present and voting (67, if all
Senators vote) needed to get cloture on amendments to the Senate’s standing rules.
The higher threshold for invoking cloture on rules changes is understood to apply
only to direct amendments to the Senate’s Standing Rules, not to other measures

16 Ibid.

having the effect of rules.17 In addition, in contrast to proposals to amend standing
rules, consideration of a bill creating an expedited procedure statute or of a simple
resolution creating a standing order would not require a day’s written notice.18
Facilitates Coalitions. It might be easier for supporters to build legislative
coalitions in favor of a rulemaking statute or standing order. Members can cosponsor
(and be lobbied to cosponsor) legislation. Interest groups can rate support of
legislation, and the public can rally behind it. This is not possible with a procedural
ruling or other parliamentary mechanism that establishes precedent. Setting
consideration limits on nominations by means of legislation may also be an easier
concept for the press and general public to understand.
Pre-enactment Flexibility. Legislation proposing a rulemaking statute or
standing order might either be considered as a freestanding measure or attached to
another vehicle as a committee or floor amendment. By contrast, “nuclear” or
“constitutional” options that rely on points of order and rulings of the chair can only
be raised under specific parliamentary circumstances. As with any legislative
provision, the proposals might even originate in the House, where a majority has the
ability through the adoption of a special rule reported by the Committee on Rules to
incorporate such language in any or every bill considered. Such an approach,
however, while technically permissible under the rules, might be viewed as an
infringement on the prerogatives of each chamber to determine its own rules.
Post-enactment Flexibility. If provisions of a statute or standing order
established a default set of ground rules for consideration of nominations, these
provisions could still be tailored to meet specific situations. As previously noted,
these provisions, like all Senate rules, could be altered, added to, or laid aside in19
whole or in part at any time by unanimous consent. It is unclear that such flexibility
would exist with a Senate precedent.
Clarity. Utilizing a rulemaking statute or standing order would also limit
confusion by clearly specifying which business is meant to be considered in an
expedited way. By contrast, changing the terms of Senate consideration of
nominations by setting a new precedent might lead to doubt whether precedent would
apply to shutting off debate on all nominations, on just certain nominations, or on all
matters before of the Senate? This is particularly true of a “nuclear” or
“constitutional” option whose mechanism is a point of order that continued
consideration of a nomination was “dilatory.” If a point of order were made that the
provisions of Rule XXII are an unconstitutional bar on the Senate’s duty to advise
and consent, could the same argument be made about debate on measures dealing

17 Sen. Ford, remarks in the Senate, Congressional Record, vol. 131, July 25, 1985, pp.


18 U.S. Congress, Senate, Riddick’s Senate Procedure: Precedents and Practices,
S.Doc.101-28, 101st Cong., 2nd sess., by Floyd M. Riddick, Parliamentarian Emeritus, and
Alan S. Frumin, Parliamentarian, rev. and ed. by Alan S. Frumin (Washington: GPO, 1992).
19 William Holmes Brown and Charles W. Johnson, House Practice, A Guide to the Rules,
Precedents, and Procedures of the House, 108th Cong., 1st sess. (Washington: GPO, 2003),
ch. 6, sec. 5.

with other constitutional powers, such as raising revenue or even recording the Yeas
and Nays on a question?
Lasting Fix. Fixing the terms of consideration for nominations by rulemaking
statute or standing order would provide a permanent set of ground rules for the
Senate’s consideration of nominations that would need not be invoked from the floor
each time a nomination was considered. By contrast, setting a new precedent by
ruling of the chair, for example, that further debate was dilatory, might need to be
repeated with every nomination and would be subject to appeal by opponents on each
Potential Disadvantages and Arguments in Opposition
Debatable. Legislation proposing statutory debate limits on nominations or
a simple resolution proposing a standing order would both be debatable propositions,
as would motions to proceed to their consideration. Reaching a vote on these
questions would almost certainly require supporters to obtain the same cloture level
required to limit debate on a nomination itself. If the proposal were brought up as
an amendment, no motion to proceed to its consideration would be required, but it
might still become necessary to obtain a supermajority for cloture on the proposition
Limits Discretion of Committees and Leadership. The Senate does not
usually require its committees to act on specific measures or kinds of measures, or
place deadlines on their action. Committees, as policy experts and agents of the
Senate, generally have discretion to choose what measures they will consider and
whether to report them. Codifying the terms of consideration for nominations by way
of rulemaking statute or special order could undermine this discretionary power of
committees and put the consideration of nominations on ‘autopilot.’ Longstanding
Senate tradition, such as that of blue slips for the consideration of nominations,20
would be erased. Such an approach could also encroach on the traditional
prerogative of Senate leadership to control the scheduling of questions for
Could Alter the Senate’s Nature. The right of extended debate is a
longstanding tradition in a Senate whose deliberative nature was designed by the
Founders as a check on the House to ensure that hastily considered measures did not
become law and as a protection for small states and other minorities. Limiting
consideration of whole classes of nominations by statute or standing order
undermines this deliberative tradition and arguably alters the nature of the Senate,
making it more of a majoritarian chamber like the contemporary House of
R epresent at i v es.

20 CRS Report RS21674, The Blue-Slip Process in the Senate Committee on the Judiciary:
Background, Issues, and Options, by Mitchel A. Sollenberger. See also, CRS Report
RL31948, Evolution of the Senate’s Role in the Nomination and Confirmation Process: A
Brief History, by Betsy Palmer, and CRS Report RL31980, Senate Consideration of
Presidential Nominations: Committee and Floor Procedure, by Elizabeth Rybicki.

Tilts Constitutional Checks and Balances. Article II, Section 2 of the
Constitution grants the President power, “by and with the Advice and Consent of the
Senate,” to make treaties and propose nominations. A well-established line of
argument states that the Founders intended these powers to be divided between the
Senate and the President. To the extent that it assured the occurrence of a Senate
vote on any nomination the President submits in specified classes, a standing order
or rulemaking statute mandating limits on consideration would diminish the effective
discretion of the Senate in the confirmation process, and correspondingly tend to
increase the power of the chief executive. In this way, a statute or standing order
approach could tilt this division of power toward the President. Placing the terms of
consideration for nominations in law or standing order could restrict how the Senate
exercises its advice function and undermine a constitutional check on executive
authority. One might argue that ensuring an automatic vote on every nomination
could make it less likely that Presidents will seek the Senate’s advice before
proposing them.
Perception That Change is Unwarranted. It appears that filibusters on
nominations were less common in previous eras because nominations that faced
substantial opposition often did not reach the floor in the first place, or were never
submitted due to prior consultation between the President and interested Senators.
In addition, for large parts of history, certain nominations were considered
“patronage” positions that Senators were given wide latitude to influence in their
state.21 Some observers might argue that the Senate’s present inability to reach a vote
on certain nominations arises more from a lack of presidential consultation with the
Senate on nominees, or from changes in Senate policies relating to blue slips and
senatorial prerogatives,22 than it does from abuse of extended debate.
Senators Might Lose Power. Limiting debate by statute or standing order
might result in a diminishment of the power of every Senator. An examination of
measures blocked over the last several Congresses because the Senate could not
obtain cloture suggests that Senators from both parties have utilized extended debate
on bills and nominations. All Senators, and the states they represent, may, at times,
be members of a minority and in need of the protections of unlimited debate. Since
1789, the Senate has rejected countless attempts to establish majority cloture in the
body.23 Limiting debate on whole classes of nominations by legislation is, in effect,
a form of majority cloture.
Unclear Outcome. While standing orders have the same authority as
standing rules of the Senate, it is not clear whether they are always followed in the
same way. For example, on October 9, 2004, the Senate adopted S.Res. 445, a
standing order making numerous changes in the way the chamber deals with
intelligence and homeland security matters. The standing order directed the

21 David Margolick, “Stalled Federal Court Nomination Raises Concern,” New York Times,
June 24, 1984, p. 25.
22 Sen. Levin, remarks in the Senate, Congressional Record, daily edition, vol. 149, July 21,

2004, p. S8522.

23 Senate Committee on Rules and Administration, Senate Cloture Rule, pp. 11-36.

Committee on Appropriations to “reorganize into 13 subcommittees as soon as
possible after the convening of the 109th Congress.”24 When it organized, however,
the Appropriations Committee did not follow the terms of the standing order,
choosing instead to establish 12 subcommittees, none of which was a Subcommittee
on Intelligence.25 In the case of a standing order governing the consideration of
nominations, however, it presumably would be possible for a Senator to try to
enforce the terms of the standing order by point of order on the floor.

24 S.Res. 445, 108th Cong., 2nd sess.
25 U.S. Congress, Senate Committee on Appropriations, Chairman Cochran Announces New
Structure for Senate Appropriations Committee, press release, Mar. 2, 2005, available at
[], visited Apr. 1, 2005.