No set definition exists for the term "nuclear option"; indeed, this term has beenused to refer to many kinds of possible proceedings. One set of possibilities, however, involvesappealing to constitutional requirements as an authority superior to that of the Senate's own rules,and supporters of such an approach have accordingly preferred to describe such an approach as a"constitutional option." (7) 

	Possible Courses of Action

Exactly because the point of a "nuclear" or "constitutional" option is to achieve changes inSenate procedure by using means that lie outside the Senate's normal rules of procedure, it wouldbe impossible to list all the different permutations such maneuvers could encompass. Dilatory Debate

One scenario would have the effect of creating, within Senate procedure, a new precedentthat extended debate of a nomination was dilatory, and, therefore, out of order. The Presiding Officer,perhaps the Vice President, would then be expected to rule in support of the Senator's point of order. Those who would seek to amend Senate rules to end a filibuster by a majority vote might usethe first day of a new Congress to advance their proposal, arguing that Senate rules, particularly thecloture rule, Rule XXII, did not apply yet, and thus that debate could be ended by majority vote. Under this scenario, a Senator would move the adoption of a new rule or set of rules, which couldcontain changes to Rule XXII -- or any other rule the Senator wanted to change. Debate on the newrule or rules could be limited, subject to a majority vote, supporters argue, because the mechanicsof cloture as set out in Rule XXII would not yet apply, and the Senate would be operating undergeneral parliamentary law. Opening Day Scenario Two - Majority Cloture

A variation on the first proposition would rest on a claim by proponents of changing Senaterules that on the opening day of a Congress a simple majority could invoke cloture on the motionto take up a resolution that proposed a rules change, or on the resolution itself. The intent of thisset of options would be to have the 60-vote threshold for cloture declared unconstitutional, either forcloture in general, or only as it applied to Senate consideration of presidential nominations, orperhaps a subset of such nominations such as of federal judges. At this point, the scenario could play out in at least two different ways. Under a second scenario, following a vote in which the Senate failed to invoke cloture on apending measure or matter, a Senator would, from the chamber floor, make a constitutional pointof order that the supermajority requirement for cloture is unconstitutional. The potential exists for significant repercussions. (23) A Republican Senator told The Hill that damage from the use of the "nuclear" or "constitutional" option could level the Senate,making it very difficult for work to get done.
Reports indicate possible attempts to curtail the use of filibusters in the Senate, perhaps inthe 109th Congress. Some have suggested that proponents of this idea may invoke something calledthe "nuclear" or "constitutional" option in Senate floor procedure to try to end a filibuster withoutthe need for 60 votes or to amend the cloture rule (Rule XXII) itself. No set definition exists for theterm "nuclear" or "constitutional" in this context. Because the point of using such an option is toachieve a goal by means lying outside the Senate's normal rules of procedure, it would be impossibleto list all the different permutations such maneuvers could encompass. Several likely scenarios thatfall into this category are described in this report, followed by a discussion of the possible advantagesand disadvantages of using such an approach.
Opponents (and some supporters) of this kind of plan typically refer to it as the "nuclear"option because of the potentially significant result for Senate operations that could follow from itsuse. The Senate relies heavily on unanimous consent to get its legislative work accomplished. Itmay be more difficult to achieve unanimous consent in an environment where the minority feels ithas lost some of its traditional rights. Supporters of the concept of majority cloture argue that it isa "constitutional" option because they will be making their argument based on a constitutionalprerogative or duty of the Senate.
One method for changing Senate procedures might involve declaring extended debate onnominations dilatory, and thus, out of order. Another possibility is based on the argument that, onthe first day of a new Congress, Senate rules, including Rule XXII, the cloture rule, do not yet apply,and thus can be changed by majority vote. Under this argument, debate could be stopped by majorityvote. A Senator would move the adoption of a new rule or set of rules. The new rule or rules wouldbe subject to a majority vote, supporters argue, because the mechanics of cloture as set out in RuleXXII, which requires a supermajority to invoke cloture and end debate, would not yet apply and theSenate would be operating under general parliamentary law. One variation would be a claim thaton the opening day of a Congress a simple majority could invoke cloture on the motion to take upa resolution that proposed a rules change, or on the resolution itself. Again, this scenario would reston the proposition that Rule XXII was not yet in force and did not control action. Senators alsocould seek to have the 60-vote threshold declared unconstitutional, either for cloture in general, oronly as it applies to Senate consideration of presidential nominations, or perhaps a subset of suchnominations, such as of federal judges. This scenario might take place in at least two different ways. The presiding officer might make a ruling from the chair, or a Senator could make a point of orderfrom the floor that the supermajority requirement for cloture is unconstitutional.
All these possible scenarios would require that one or more of the Senate's precedents beoverturned or interpreted otherwise than in the past.
This report will be updated as events warrant.