	Introduction

At the beginning of the 112 th , 113 th , and 114 th Congresses—in 2011, 2013, and 2015 respectively—a number of reform-minded Senators unsuccessfully urged the Senate to adopt its rules on opening day by majority vote (as the House does on its first day) without having to overcome a supermajority hurdle required under existing procedures. The Senator's comments highlight a two-fold conundrum that suffuses this report: (1) a majority of the Senate can amend the chamber's rules; (2) however, before that may occur, reform advocates might be required under existing Senate rules—which carry over from one Congress to the next (part of the "continuing body" thesis)—to first muster a supermajority to bring interminable debate to a close on proposals to amend Senate rules. It is so well-known that Hollywood even made a classic movie in 1939 ( Mr. Smith Goes t o Washington ) that highlighted the filibuster's educative and political value. The nuclear option refers to the creation by majority vote of new precedents to curb filibusters of specific measures or matters. Fifth, the report examines several issues that emerged during these past attempts to change Senate rules that might affect contemporary efforts to revise Senate rules. The filibuster is perhaps the prime target for change because its goal is often to delay or prevent votes on measures or matters that might otherwise pass the Senate with majority support. The "constitutional" option refers to efforts at the start of a new Congress to amend Senate rules by majority vote, without regard to Rule XXII's two-thirds requirement for ending debate. Proponents of this approach cite the constitutional provision that "Each House may determine the rules of its proceedings." Remember that a Senate majority can amend the Standing Rules at any time. Precedents and Senate Rules

A feature of precedential change is that the text of a formal rule remains unchanged, such as Rule XXII, but the new precedent effectively alters all or part of its application and interpretation in chamber proceedings. They were successful. It has been assumed that the Senate is a continuing body and that it has continuing rules." In short, opening day could extend over many days, weeks, months, or the entire two-year life of a Congress. In response to this sentiment, and concern about the public's negative view of the proceedings, the chamber's two party leaders (Mansfield and Dirksen) propounded on January 30 the following unanimous consent agreement (UCA):
Ordered , That on Thursday, January 31, 1963, at the conclusion of routine morning business, the Senate resume consideration of the following question submitted on the 28 th instant by the Vice President to the Senate for its decision, namely, "Does a majority of the Senate have the right under the Constitution to terminate debate at the beginning of a session and proceed to an immediate vote on a rule change notwithstanding the provisions of the existing Senate rules?" They were unsuccessful. Proponents rejected those arguments. Two points are noteworthy. The Senate has the constitutional authority to change any rule by majority vote at the start of a new Congress. In response to the parliamentary inquiry of the Senator from Idaho, therefore, the Chair informs the Senate that in order to give substance to the right of the Senate to determine or change its rules and to determine whether the two-thirds requirement of rule XXII is an unconstitutional inhibition on that right at the opening of a new Congress, if a majority of the Senators present and voting but fewer than two-thirds, vote in favor of the pending motion for cloture, the Chair will announce that a majority having agreed to limit debate on Senate Resolution 11, to amend rule XXII at the opening of a new Congress, debate will proceed under the cloture provisions of that rule. Reformers were fairly optimistic that this time they would be successful in amending Rule XXII. 1, Senate Resolution 4, amending rule XXII of the Standing Rules of the Senate with respect to limitation of debate; and that under article I, section 5, of the U.S. Constitution, I move that debate upon the pending motion to proceed to the consideration of Senate Resolution 4 be brought to a close by the Chair immediately putting this motion to end debate to the Senate for a yea-and-nay vote; and, upon the adoption thereof by a majority of those Senators present and voting, a quorum being present, the Chair shall immediately thereafter put to the Senate, without further debate, the question on the adoption of the pending motion to proceed to the consideration of Senate Resolution 4. Senator Allen dominated debate and castigated the reformers' effort to change Rule XXII. Important to reemphasize is that the Senate, at any time during the two-year life of a Congress, could circumvent the supermajority requirements of Rule XXII and create a new precedent for majority cloture. (The 2013 case is discussed below.) President Obama also backed use of the nuclear option. They can refuse to hold hearings on executive and judicial branch nominees or fail to report them for possible floor consideration.
The filibuster (extended debate) is the Senate's most well-known procedure. Hollywood even highlighted its use in a famous 1939 movie entitled Mr. Smith Goes to Washington, starring actor Jimmy Stewart in the title role of Senator Jefferson Smith. Lengthy debate has many virtues (informing the public, for example) but the blocking potential of interminable debate has often made the filibuster a target for change by reform-minded Senators. Rule XXII requires 60 votes of Senators duly chosen and sworn to end debate on measures or motions—"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."
Real or threatened filibusters, along with cloture motions, have increased in recent Congresses. One consequence has been unsuccessful efforts by change-oriented Senators to amend Rule XXII without having to overcome the two-thirds supermajority hurdle. The contention of the reformers is that at the start of a new Congress, the Senate can amend its rules by majority vote—as the House does on its first day. They cite the U.S. Constitution (Article I, Section 5) as authority for their claim: "Each House may determine the Rules of its Proceedings," which implicitly means by majority vote, state the reformers.
Opponents reject the so-called "constitutional" option. They point out that the Senate has adopted rules and the Constitution says nothing about the vote required to adopt those rules. Moreover, they contend that the Senate is a "continuing body"—a quorum to conduct business is always present given the staggered terms of Senators—with continuing rules. The bottom line: a Senate majority can always amend the chamber's rules at any time during the two-year life of a Congress so long as the existing rules are observed, such as Rule XXII. Proponents of change refute that argument. They agree that a majority of the Members can change Senate rules at any time. Their concern is Rule XXII's two-thirds requirement for invoking cloture on proposals to amend Senate rules, which can prevent a majority from altering Senate rules.
From 1953 to 1975, initiatives to reform Rule XXII at the start of a new Congress were biennial rituals. They were instigated by Senators in each party frustrated by the chamber's inability to enact social and civil rights legislation because of opposition from other Members. The bulk of this report examines each Congress where reform actions occurred on "opening day," which could extend for days, weeks, or months. Most of the reform attempts failed, but two efforts were successful: in 1959 and 1975. An analysis of the successes and failures of this nearly quarter-century era of opening day reform efforts could inform contemporary efforts to revise Senate rules by examining the controversies, conditions, and circumstances that produced the various outcomes. The report discusses, for example, the roles of various Senate Presidents (the Vice President) and party leaders, as well as the procedural strategies used by opponents and proponents of amending Rule XXII by majority vote at the start of a new Congress.
The report also includes an "Afterword" that examines several subsequent and successful efforts to change Rule XXII in 1977, 1979, 1986, and 2013. The 2013 case is noteworthy because it created a new Senate precedent that allows majority cloture on most executive and judicial branch nominees. This precedential approach is sometimes called the "nuclear" option because of the likelihood of strong opposition and contentious parliamentary fallout from Senators opposed to its use on consequential measures or matters. In brief, the nuclear option indirectly "amends" Senate rules by majority vote through the creation of a new precedent that alters the application or interpretation of a chamber's rule, such as Rule XXII, without changing its formal text.