Accordingly, advocates of change in this area have focused on procedural changes that would afford more effective means for a majority to limit consideration. Existing Senate rules and procedures, however, also place potentially substantial obstacles in the way of adopting changes in these rules and procedures. Certain elements of the Senate's procedural system have the effect of requiring that its established procedures remain continuously in effect. As a result, a proposal to institute more effective means of limiting consideration would have to be considered in accordance with the already existing procedures. It is in this sense that Senate rules have been described as "entrenched" against their own change. A course of action could provide a "nuclear option" either by (1) overcoming the scarcity of majoritarian consideration limits afforded by existing procedures or (2) departing from the principle that the existing system of procedure as a whole remains always in effect. Consideration Limits Under Existing Procedures

The previous discussion of entrenchment suggests that the chief requisites of a feasible "nuclear option" would be (1) that a proposal for procedural change be subject to adoption with the support of a simple majority of Senators voting; and (2) that its consideration be subject to limitation also by a simple voting majority, so as to ensure that a vote can be reached. It is accordingly appropriate for the Senate to exercise authority in relation to the Constitution. If, on the other hand, the precedent for submitting constitutional questions would be controlling, but Rule XX were to be applied to submitted questions as well as to appeals, proponents of the "constitutional option" might be able to achieve their ends, because the rule would permit the Senate to reach a vote on the submitted question, and thereby allow a majority to settle it in a way that altered precedent. If the initial ruling remained consistent with existing practice by sustaining the point of order against the motion to proceed to a vote on the underlying matter, the Senate could not achieve consideration limits by tabling the appeal, but only by reversing the chair on appeal. Reaching this result would require an up-or-down vote on the appeal itself, and, as above, opponents of consideration limits could attempt to prevent this vote from occurring by filibuster. For example, if the chair submitted a point of order claiming constitutional warrant for limits on consideration of a judicial nomination, supporters of such limits might raise a nested point of order claiming that the chair should proceed to rule, in order to forestall a possible filibuster that could prevent the Senate from reaching a vote on the initial point of order. If a filibuster prevented the Senate from reaching a vote on this submitted point of order, supporters of the point of order might then raise a second point of order, claiming that this filibuster was unconstitutionally preventing the Senate from exercising either its "advice and consent" power or its authority to determine the meaning of its own rules. The presence of such a precedent might, in principle, enable a voting majority of the Senate to alter any procedure at will by raising a point of order and either securing a favorable ruling or being able to limit debate on the appeal or submitted question. Most prominently, supporters of change engaged in attempts to contest the entrenchment of Senate Rules by some form of appeal to the constitutional rulemaking power. Remarks in the Senate.
Senate procedure permits most matters to be decided by a simple majority of Senators voting (with a quorum present). Yet Senate procedure generally lacks means for a simple majority to limit consideration and proceed to a vote. As a result, Senate minorities can attempt to block proposals by preventing a vote from occurring, a practice known as filibustering. Filibuster opponents have long sought to institute rules permitting a voting majority to limit consideration, most recently, in relation to judicial nominations. The Senate has seldom been able to adopt such limits, however, because any such proposal is itself subject to filibuster. In addition, the Senate has held that its existing procedures remain continuously in effect, which prevents it from considering a change proposal under limits more stringent than those already in effect. In this way, the existing procedures that lack consideration limits tend to entrench themselves against their own change.
Advocates of majority consideration limits have often sought ways to assure the ability of the Senate to reach a vote on procedural changes. Inasmuch as such a course of action would break through the obstacles posed by existing procedures, it has been called a "nuclear option." A "nuclear option" would presumably either make novel use of existing procedures or engage in ones previously not recognized in Senate practice. The plan most often discussed has been to raise a point of order asserting that the Senate must be able to reach a vote on nominations (or procedural changes) in order to exercise effectively its constitutional "advice and consent" power (or rulemaking power). By sustaining such a point of order, the chair would establish precedent for limiting consideration of those matters. Opponents of the ruling could appeal, and could attempt to filibuster to prevent a vote on the appeal, but the Senate could confirm the ruling by adopting a nondebatable motion to table the appeal.
Under established procedure, however, only the Senate itself has authority to settle points of order in ways that alter precedent or interpret the Constitution. The chair is to follow precedent in ruling, and is to submit points of order raised under the Constitution, or where no precedent exists. If a point of order is submitted, however, or a ruling against a point of order is appealed, the point of order can be sustained only by vote, and the vote might be blocked by filibuster. Tabling the question in this situation would have the effect of affirming previous practice. Only certain additional limits on consideration of a point of order raised while another is pending might afford means of overcoming this difficulty.
Under most conditions, the Senate might be unable to reach a vote on a procedural question that would institute consideration limits, except by setting aside the principle that the chair adheres to precedent, or that the rules remain always in effect. Once these principles were set aside, however, it might become possible for any voting majority of the Senate to institute further procedural changes in other subsequent situations. In the past, both the Senate and the House have ultimately always declined to institute change by accepting standards that would permit this result. This report will not be updated.