Keep Factually independent
Whether you agree or disagree with our analysis, these conversations matter for democracy. We don't take money from political groups - even a $5 donation helps us keep it that way.
Can the Senate use the nuclear option to repeal the filibuster and how was it used in 2013 and 2017?
Executive Summary
The Senate can use the so-called “nuclear option” to change its rules by a simple majority, and it has done so twice in the last decade to eliminate the 60-vote cloture threshold for most nominations: first in 2013 for most executive and lower-court judicial nominees, and again in 2017 to include Supreme Court nominations [1] [2]. The legislative filibuster—the 60-vote threshold for most legislation—remains intact today, and repealing it would require a similar majority-driven rules change that is politically consequential and divisive [3] [4].
1. How a Majority Can Alter the Rules — The “On-the-Spot Coup” That Changes Precedent
The nuclear option is a procedural maneuver that lets a Senate majority redefine how a standing rule is applied without securing the supermajority the standing rule requires. Practically, the majority uses a point of order during floor proceedings to assert that a simple majority should govern a specific question; the presiding officer rules against that point of order based on existing rules and precedent; the majority then appeals the ruling and votes to overturn it by a simple majority, thereby establishing a new precedent. This is not a formal amendment to the written rules but a binding precedent change that functions as the Senate’s effective practice until reversed, and it has historical use and clear legal mechanics within Senate procedure [5] [6].
2. What Happened in 2013 — Democrats End Most Nominee Filibusters
In November 2013, Senate Democrats led by Majority Leader Harry Reid invoked the nuclear option to eliminate the 60-vote cloture requirement for most presidential nominations, excluding Supreme Court nominees at that time. The action followed years of partisan blockage of executive and judicial nominees and passed by a party-line vote (52–48), with three Democrats dissenting. The result allowed presidential nominees for executive branch posts and lower federal courts to be confirmed by a simple majority, dramatically reducing minority leverage over appointments but leaving the legislative filibuster and Supreme Court cloture threshold intact until 2017 [1] [7].
3. What Happened in 2017 — Republicans Finish the Job for the Supreme Court
In April 2017, Senate Republicans extended the 2013 precedent to include Supreme Court nominations, enabling Neil Gorsuch’s confirmation by a simple majority. Majority Leader Mitch McConnell’s Republican caucus used the same procedural path—raising a point of order and overturning the chair’s ruling—to change precedent, resulting in a 52–48 split along party lines. This removed the last nomination exception and established that judicial confirmation votes, including the Supreme Court, no longer required 60 votes to overcome filibusters. The move was hailed by proponents as necessary to overcome obstruction and criticized by opponents as a lasting erosion of minority protections [2] [8].
4. Why the Legislative Filibuster Still Stands — Legal Feasibility vs. Political Cost
Technically, the Senate majority can use the same majority-override path to eliminate the legislative filibuster—setting cloture on bills at a simple majority—but doing so would be methodologically identical to the 2013 and 2017 changes and politically riskier. The legislative filibuster protects minority leverage over policy, and some senators across parties publicly resist scrapping it for institutional and tactical reasons. Even when a majority exists to change the rule, leaders weigh immediate gains against long-term vulnerability: a party that eliminates the legislative filibuster now cedes the same weapon to future opponents when power flips, exposing major policy swings without minority buy-in [9] [3].
5. Politics, Precedent and the Road Ahead — Options, Costs, and Strategic Calculations
Repealing the legislative filibuster would be a deliberate, high-stakes choice requiring a majority willing to endure the institutional fallout. The same procedural tool used in 2013 and 2017 would work procedurally, but its political and normative consequences differ: nomination fights focus on appointments and court composition, while eliminating the legislative filibuster would rewrite how policy is made on everything from budgets to major social programs. Senators’ public statements and caucus dynamics show mixed appetites for such a step; some leaders rule it out as a safeguard, while activists and some lawmakers press for change. Any move would be closely scrutinized for precedent-setting consequences and partisan retaliation down the road [4] [5].