Origins of the filibuster and the "nuclear option," and what it could mean for the House of Representatives

The government shutdown, which is only three days aways from breaking the record for longest government shutdown, has drawn new attention to the filibuster and the so-called "nuclear option." But where exactly is the filibuster and where did the filibuster come from? And what is the nuclear option and how is it grounded in basic parliamentary procedure?

The filibuster, made famous by Mr. Smith Goes to Washington, is a tool that allows a minority of members in the Senate to prevent legislation from passing unless 60 members of the Senate are to invoke cloture. It is the product of two quirks of the Senate. First, the Senate does not place a time limit on speeches by default. Second, the Senate does not have a motion for calling the previous question.

Although the Senate only allows a senator to speech twice to any question on a given "legislative day" (which can actually extend of multiple days, weeks, or months), the Senate has never had a time limit on speeches. Thus, a passionate senator recognized to speak could always monopolize the floor until exhausted. But because there is no motion for the previous question in the Senate, every senator who opposes legislation has the opportunity cause delay a vote. Theoretically, the Senate could strictly enforce its rules and force opposing senators to exhause their right to speak. But in practice, the Senate typically does not debate a question if any senator has threatened to filibuster. Instead, the Senate either ignores the question until the threat has been lifted, or votes on cloture.

The Senate used to have a motion for the previous question that was much simpler than the motion for cloture. It only required a majority vote—lower than the two-thirds supermajority vote required to order the previous question under Robert's Rules of Order. But Aaron Burr, presiding over the Senate in his role as vice president, suggested that the Senate didn't need the motion for the previous question. By 1806, the Senate had gotten rid of the previous question motion. And with that, the filibuster, by accident, was born.

The nuclear option allows the Senate, by a majority vote, to lower the threshold for cloture to a simple majority for certain types of questions. For all the criticism supporters of the filibuster have for invocation of the nuclear option, it is somewhat consistent with the generally accepted prospect that an assembly can adopt or amend its rules of order with a vote of the majority of the assembly's members. RONR (12th ed.) 2:22. To be sure, the Senate, by using the process of appealing the ruling of the chair, theoretically only requires a majority vote to invoke the nuclear option. But in practice, all the senators vote if able when the nuclear option is up for consideration.

The nuclear option is an important reminder that rules to protect the right of the minority to be heard do not prevent the majority from exercising its right to decide—unless the majority allows it.

So what does this mean for the House of Representatives?

The House of Representatives has been out of session during the government shutdown. Critics blame the speaker of the House, but the Constitution grants the House of Representatives the right to determine its rules, not the speaker of the House. Theoretically, a majority of the members of the House of Representatives could convene themselves, declare that they are in session, and change any rules that allow the speaker of the House to prevent the House of Representatives from going into session.

Such a move would be challenged, perhaps under the argument that because the House was not in session, it could not convene to change the rules to allow its members to call it back into session (i.e., invoking a supposed Catch-22). But if a majority of the members of the House of Representatives (currently 217 given that one representative-elect has not been sworn in and two seats are vacant) met and determined that they had the authority to call the House back into session, their decision undoubtedly would be upheld.

Again, the Constitution grants the House of Representatives the right to determine its rules. No one else, whether it be the speaker of the House, the president, or the justices on the Supreme Court, get to determine those rules.

It is much more likely the Senate will invoke the nuclear option to invoke cloture on a continuing resolution to fund the government than the House would force itself back into session against the will of the speaker of the House. But it is a possible exercise of collective power that would be consistent with the tools of democracy.

Choosey chairs choose parliamentarians (continued)

In the last newsletter, Sarah was trying to convince Dale to hire a parliamentarian to support him in presiding over the governing board for a local animal shelter.

"I can't do that! What will the other members think if I pay someone to tell me what a bad job I'm doing and to overrule my decisions?" he objected.

"Other members will appreciate that you are investing in making sure that the meetings are fair, efficient, and effective," she responded. "And a parliamentarian can't even overrule your decisions. A parliamentarian can share opinions with you, but you make the final rulings. And don't worry, a parliamentarian isn't supposed to call you out and make you look bad."

Sarah's advice is consistent with the rule that the "parliamentarian’s role during a meeting is purely an advisory and consultative one—since parliamentary law gives to the chair alone the power to rule on questions of order or to answer parliamentary inquiries." RONR (12th ed.) 47:46. Further, during "a meeting the work of the parliamentarian should be limited to giving advice to the chair and, when requested, to any other member. It is also the duty of the parliamentarian—as inconspicuously as possible—to call the attention of the chair to any error in the proceedings that may affect the substantive rights of any member or may otherwise do harm." RONR (12th ed.) 47:50.

Parliamentarians who are members of the National Association of Parliamentarians or the American Institute of Parliamentarians are required by the Code of Professional Responsibility for Parliamentarians to advice "the client on the proper application of the accepted rules of parliamentary procedure" and to make "reasonable efforts to call to the attention of the client significant deviations from the rules that may be harmful to the rights of members of the assembly." But this typically does not require anything more than the parliamentarian whispering in the chair's ear or passing a note to the chair.

If Dale consistently disregards the parliamentarian's advice, the parliamentarian may withdraw rather than risk reputational damage. But this should not be an issue if Dale merely lacks knowledge of the tools of democracy and experience in presiding. As long as Dale is willing to listen and make a good faith effort to preside effectively in light of the advice of a qualified parliamentarian, Dale is likely to find he appreciates the support of a parliamentarian.

Dealing with deliberate delay

At the last regular meeting of Brian's fraternity, he moved to adopt a system to limit drinking during fraternity parties out of concern for the safety of his brothers' and their guests. The fraternity members were open to adopting rules, but they referred the motion to a committee to be appointed by the president so that the specifics could be considered in greater detail.

Brian is shocked to find out that the fraternity's president, Frank, has packed the committee with members of the Chug Caucus, who oppose the adopting any rules at all to limit drinking. The committee hasn't done any real work. Even worse, Frank has told Brian that the fraternity can't consider Brian's proposal while it is in the hands of the committee.

What can Brian do to deal with what seems to be deliberate delay by the committee?

SmartRulings is Back!

As you can see, SmartRulings newsletter is back after a hiatus in 2025. As much as I love sharing the tools of democracy with others, it took a back seat to other priorities. One of those big priorities was completing my Executive Master of Business Administration at the New York University Stern School of Business.

At New York University, I specialized in Management and Strategy. I also used tools of democracy frequently in group settings, which helped ensure that deliberations during group projects were fair, efficient, and effective. Some of the best work we did was enhanced by the use of these tools, even applied informally, to help structure discussions and produce clear outcomes.

I expect the additional skills I developed earning this Executive Master of Business Administration will help me support others in employing the tools of democracy effectively.