Senate Rule XXII requires a two-thirds vote to end a filibuster against a rules change. This means that changing Senate rules must be a bipartisan matter. The danger is that the majority party will attempt to use the “constitutional option” and ignore the Senate’s rules. Republicans threatened this in 2005 when Democrats were filibustering 10 of President George W. Bush’s judicial nominations. Because Democrats vowed to respond by bringing the Senate to a near-halt, the tactic was widely referred to as the “nuclear option.”
The “constitutional option” could be accomplished in January (or, really, any time) if the Senate’s presiding officer decides to ignore the rules and the advice of the parliamentarian — which presiding officers usually rely upon — and declares that debate can be ended by majority vote. Republicans would appeal, but if 51 Democrats hold the line they can table the appeal, which would allow the ruling to stand as the new precedent of the Senate.
No one should be fooled. Once the majority can change the rules by majority vote, the Senate will soon be like the House, where the majority doesn’t consult the minority but simply controls the process. Gone would be the Senate’s historic protection of the minority’s right to speak and amend. In the House, the majority tightly controls which bills will be considered; what amendments, if any, will be in order; how much time is allotted for debate; and when and under what rules votes occur. Often, no amendments are permitted.
Since the Senate’s presiding officer is likely to be the vice president, it is instructive to remember what Biden said about this ploy from the floor of the Senate in 2005:
“This nuclear option is ultimately an example of the arrogance of power. It is a fundamental power grab by the majority party . . . to eliminate one of the procedural mechanisms designed for the express purpose of guaranteeing individual rights and they also, as a consequence, would undermine the protections of the minority point of view. . . .