The Nuclear Option Isn’t the Threat—the Filibuster Is

Every few years, Washington works itself into a moral panic over the nuclear option. In 2013, Democrats used it to confirm most presidential nominees by simple majority. In 2017, Republicans extended it to Supreme Court nominations. Now the argument is about whether to do away with the legislative filibuster, the Senate rule that effectively requires 60 votes to pass most bills. The debate usually rests on two assumptions. The first is that the 60-vote filibuster is an ancient and sacred check on majority power. The second is that the nuclear option is some kind of constitutional crisis. Both assumptions are wrong. The Constitution did not create the filibuster. And the nuclear option is not a bomb; it is the Senate exercising a power the Constitution expressly grants.

The Constitution Already Settled the Question

The Constitution is not silent on supermajorities. It simply reserves them for specific, enumerated purposes. Article I requires a two-thirds vote to override a presidential veto, expel a member, or propose a constitutional amendment. Article II requires two-thirds of the Senate to ratify a treaty. Impeachment convictions require two-thirds of the Senate as well. The Framers knew exactly how to require more than a majority when the moment demanded it.

For everything else-ordinary legislation, judicial confirmations, the daily business of the Senate-the constitutional default is a majority. That was not an oversight. Alexander Hamilton had lived under the Articles of Confederation, where supermajority requirements contributed to paralysis. In Federalist No. 22, he warned against giving a minority a veto over the majority. Hamilton wrote that to give a minority a negative upon the majority, which is always the case where more than a majority is requisite to a decision, is in its tendency to subject the sense of the greater number to that of the lesser. He went further, saying the real operation of such a rule is to embarrass the administration, destroy the energy of government, and substitute the pleasure, caprice, or artifices of an insignificant, turbulent, or corrupt junto for the regular deliberations and decisions of a respectable majority. That is not a modern partisan talking point. That is Hamilton, in 1787, describing the very thing the filibuster has become.

An Accident Dressed Up as Tradition

The Senate did not begin with a 60-vote threshold. In 1806, acting partly on the advice of Vice President Aaron Burr, the Senate eliminated the previous question motion, the rule that allowed a majority to cut off debate. The senators thought they were cleaning up a redundant rulebook. They accidentally created a chamber where, at least in theory, debate could continue indefinitely unless a supermajority voted to end it.

The first actual filibuster did not occur until decades later. The Senate did not adopt a cloture rule until 1917, and that required a two-thirds vote to close debate. The modern 60-vote threshold dates only to 1975. So when someone says the filibuster is a sacred Senate tradition, it is worth asking which tradition they mean. The Senate of 1789 had no filibuster. The Senate of 1916 had no working cloture. The Senate of 1974 needed a two-thirds vote to end debate, which meant 67 votes if every senator was present. The 60-vote requirement is a modern procedural invention layered on top of a body designed for majority rule.

The original Senate was not meant to be a supermajority legislature. It was meant to be the smaller, more deliberate chamber, with six-year terms, equal representation of the states, and senators originally chosen by state legislatures. That was the real check on the House. The Seventeenth Amendment, ratified in 1913, ended state appointment and made senators directly elected. Whatever additional check the original design provided was not replaced by the filibuster. The filibuster became a poor substitute for a lost constitutional architecture.

The Rule Is Constitutional, and That Is the Point

Here is the part that often surprises people. The nuclear option is not unconstitutional. Article I, Section 5 of the Constitution says plainly that each house may determine the rules of its proceedings. That sentence resolves the legal question. The Senate has the authority to set its own rules, including the threshold for ending debate. When a majority of senators votes to reinterpret or change those rules, whether for nominees or for legislation, that is not a coup. It is the Senate exercising a power the Constitution expressly grants.

That does not mean every rules change is wise. But the nuclear label is mostly rhetorical. The actual question is not whether the majority may change the rules. It plainly may. The question is whether the rule being changed serves the constitutional order. On that score, the modern silent filibuster fails badly.

The Unseen Cost of the 60-Vote Senate

The usual defense of the filibuster is that it forces bipartisan compromise and restrains federal power. That is the stated intention. The actual result, as Thomas Sowell has spent a career demonstrating, is often the opposite. The filibuster does not make Washington do less. It changes who does the doing.

When 60 votes cannot be found for ordinary legislation, Congress does not simply stop. Lawmaking migrates. Bureaucrats write rules that carry the force of law with even less accountability than a senator's vote. Presidents govern by executive order. Courts, especially activist courts, fill the legislative vacuum with judge-made law. The filibuster does not restrain government. It outsources government to people you never elected.

This is the unseen consequence of the filibuster, the kind of hidden cost Henry Hazlitt taught readers to look for. The visible effect is gridlock on the floor of the Senate. The invisible effect is the quiet growth of the administrative state, which is the largest threat to limited government the Founders never imagined. Meanwhile, the filibuster is not neutral. Congress has built majority-only fast tracks for spending, taxes, and emergencies through budget reconciliation. Structural reforms that would limit government, such as repealing mandates, eliminating agencies, or cutting programs, usually require 60 votes. The result is a one-way ratchet toward centralized power. The filibuster protects Leviathan, not liberty.

What Actually Serves Limited Government

I am not calling for pure, unchecked majoritarianism. Our constitutional republic protects individual rights through enumerated powers, the separation of powers, federalism, and the Bill of Rights, not through a Senate rule that lets 41 senators block ordinary business without even having to hold the floor.

If the Senate wants a filibuster, it should restore a talking filibuster. Make senators who want to block a bill or nominee actually stand and speak, in public, for as long as they can. Let them make their case to the American people, on camera, in their own words. That is deliberation. It respects the minority without giving it an invisible veto.

But the silent, 60-vote filibuster is the worst of all worlds. It requires no debate. It requires no public accountability. It simply means no ordinary legislation can pass unless a supermajority agrees. That is not what the Constitution says, and it is not what Hamilton defended.

The history should also be faced honestly. The filibuster has been used for noble causes and ugly ones. It blocked anti-lynching legislation and civil rights bills for decades. It has also been used to stall bad ideas. That is not an argument for keeping it. It is an argument that the filibuster is a weapon, not a principle. The principle should be the Constitution, and the Constitution presumes majority rule.

The nuclear option is not a constitutional crisis. It is the Senate belatedly using its own constitutional authority to reset the rules toward the majority default the document actually presumes. The real crisis is the filibuster itself, a procedural accident that has become a tool of paralysis and centralization. If we want to restore limited government, the answer is not to worship a 60-vote threshold. The answer is to return to the Constitution as written: majority rule for ordinary business, supermajorities only where the text demands them, and real constitutional checks, not silent vetoes, protecting the rights of the minority. That would be the truly nuclear reform-not blowing up the Senate, but restoring it.