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Fact check: How does the nuclear option affect the 60-vote threshold for legislation versus nominations?
Executive Summary
The nuclear option lowers the Senate threshold for overcoming procedural obstacles from a supermajority to a simple majority, but its historical use and current reach have been targeted and incremental rather than wholesale: it has been used to eliminate the 60-vote filibuster for most presidential nominations and for Supreme Court nominees, while the 60-vote rule for ordinary legislation has generally remained in place absent a new rule change. The 2013 and 2017 precedents show the Senate can change its rules with a simple majority to end filibusters for nominations, and calls in 2025 to apply the nuclear option to legislation reflect political pressure rather than an established change to the legislative filibuster [1] [2] [3] [4] [5].
1. Why the nuclear option matters right now — and what it actually did before
The nuclear option matters because it is the mechanism by which a Senate majority can unilaterally alter longstanding practice by redefining how precedents and rules are interpreted, turning a de facto 60-vote barrier into a simple-majority standard for certain actions. Historically the Senate used this tool in two consequential waves: in 2013 Democrats invoked it to confirm executive and lower-court nominees with 51 votes, and in 2017 Republicans expanded the precedent to include Supreme Court nominations, paving the way for Neil Gorsuch’s confirmation [1] [2] [6]. Those actions did not change the statutory text of the Constitution or federal law; rather, they changed Senate rules and precedents by a majority vote, establishing a limited precedent that nominations no longer required 60 votes, while leaving most legislative filibuster practice intact [1] [3].
2. The distinction senators cite — nominations versus legislation
Senators and observers have repeatedly emphasized a practical distinction: the nuclear option has been used to reduce the threshold for confirmations but not for passing ordinary legislation. The filibuster as a tool for legislation continues to require 60 votes to close debate under current Senate practice unless the Senate votes to change that rule by majority action, which would itself likely involve a rules-parsing exercise like previous nuclear-option maneuvers [4] [7]. Political leaders have resisted or embraced further use of the option based on partisan calculus; advocates argue a majority should be able to enact its agenda, while opponents warn that eliminating the legislative filibuster would erode minority rights and Senate norms, turning the chamber into a simple-majority legislature on policy matters [8] [5].
3. How precedent and procedure limit sudden changes to the filibuster for bills
Changing the 60-vote norm for legislation requires a Senate majority to either amend Senate rules or reinterpret precedent in a way that effectively eliminates the legislative filibuster. The 2013 and 2017 moves show the majority can do this for nominations by framing the change as a question of Senate procedure and precedent, but extending that rationale to ordinary legislation would be a more dramatic break from past practice and would likely provoke sustained political backlash and procedural countermoves [1] [3]. The recent public calls in 2025 to use the nuclear option to pass budget legislation or a continuing resolution highlight the political utility of the argument, but the constitutional and institutional obstacles remain the same: the Senate would have to explicitly vote to change the rule or adopt a new precedent, an act that is feasible but consequential [5] [8].
4. Competing political calculations and who benefits
Majorities contemplate the nuclear option because it offers a way to pass priority items without bipartisan support, but its use transfers the institutional power balance and creates a durable advantage for future majorities. Republicans in 2017 and Democrats in 2013 used the tool when they held narrow majorities and faced unified opposition on confirmations; both parties framed their moves as necessary to overcome obstruction while critics framed them as short-sighted power grabs that degrade the Senate’s deliberative function [2] [6]. The 2025 calls from political leaders to deploy the option for legislation reflect an immediate tactical interest — reopening the government or passing a budget — but also carry long-run consequences for Senate norms and minority leverage [5] [8].
5. Bottom line for lawmakers and observers: what changes and what doesn’t
The nuclear option has demonstrably changed how nominations are confirmed, reducing the threshold from 60 to 51 in practice for most nominees, including Supreme Court candidates in 2017, and it remains a live tool for majorities that choose to wield it [2]. However, the 60-vote legislative filibuster remains in place unless and until the Senate majority explicitly acts to alter that rule; calls to apply the nuclear option to legislation in 2025 are politically salient but do not by themselves change the law. Observers should track whether a Senate majority files a rules change or reinterprets precedent for legislation as it did for nominations; such an explicit action, not rhetoric alone, is the decisive step that would collapse the legislative 60-vote threshold [4] [7].