The Constitutional Option

Michael B. Rappaport and John C. McGinnis in the San Diego Union give a good, detailed explanation of how the current Senate filibuster rules came into effect, and why changing them by majority vote is not only okay, but has been done many times in the past. The phrase "nuclear option" has created an impression that changing the rules is a drastic, unprecedented action. Not true.

Politicians have notoriously short memories. With Democrats still retaining enough votes to filibuster President Bush's judicial nominees, many Republicans seek to weaken or eliminate the ability of senators to mount judicial filibusters. Under existing Senate rules, however, a proposal to change the filibuster rule can itself be filibustered and this filibuster ended only with a two-thirds vote of the Senate.

Republicans therefore favor using majority rule to change the filibuster rule, but Democrats contend that this would be improper and perhaps unconstitutional. By labeling such a change "the nuclear option," Republicans appear to concede that any majoritarian amendment would be an unprecedented threat to the harmony of the Senate.

Both Republicans and Democrats forget, however, that the existing filibuster rule itself was a product of a process very much like the so called "nuclear option." Moreover, whatever one thinks of the desirability of the filibuster rule, the structure and history of the Constitution confirm the majority's right to amend the rule.