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dress myself to the urgent and difficult question of how to get rid of these undemocratic arrangements.
Senator JAVITS. Would you yield for a minute? I apologize for not having welcomed you. We invited you, that is, my office did, to appear here and testify; and I am very glad to see you here.
I am very grateful to you for the trouble you have taken.
Mr. BURNS. The first of these ideas relates to the role and place of the United States Senate. Americans—and especially Americans from our Southland-like to think of the Senate as “the greatest deliberative body in the world.” But we must remember that debate is not an end in itself. Its purpose is to serve as a means of reaching rationally agreed-on ends.
When deliberation is used not to reach rational ends, but as a means of thwarting rational action, the whole meaning of deliberation becomes distorted and the description of the Senate as the greatest deliberative body becomes a mockery.
If we want really to have pride in the Senate, we must permit the majority to act without violating the proper rights of the minority. What are the proper rights of the minority? It is at this point that past debate, it seems to me, has failed to develop the real protection for the minority.
The real right of the minority is the prevention of some action by the majority that the minority feels is too outrageously unjust and iniquitous to be borne.
The real question is, What is the test of a position that is flagrantly unjust? Because the minority says it is so?
Of course not-the minority naturally says that the majority is being unjust.
The only possible test in a democracy as to whether the majority is treating a minority unjustly is the opinion of the people as a whole once the minority has had full opportunity to state its case before the people. Time and time again we have seen minorities in this country—even minorities of one-take their case before the people and win it; this right of appeal to public opinion is, indeed, the basic safeguard of individual liberty.
The practical implication of this situation is quite simple: The minority must have full right to take its case before the people as a whole, but if it is unable to rally significant support to its cause, if it is unable to weaken the public opinion behind the position of the majority, then the minority has no right to resort to sheer obstruction.
This argument brings me to the second of the two main points I wish to make. We hear much talk about how a majority of the Senate or a majority of the American people may become tyrannical and despotic and mercilessly override the rights of the minority; this contention is the fundamental argument used to support the right to filibuster bills to death.
I think that it is about time someone rose to defend the majority rule principle against such accusations.
The person who holds that majorities tend to become tyrannical simply does not understand American society, does not have faith in the American people. If we were some class-bound society, divided
into a radical working class element and a small class of capitalists, like some unfortunate societies we can think of, then the antimajority position might have some merit. But we are not.
We are, in great degree, an open society composed of many classes that shade into one another, composed of a tremendous diversity of viewpoints, regions, sections, races, religions, social groupings and the like.
The practical implication of this argument is also simple. If I am right in my picture of America as a highly diverse and fluid society, then by definition it follows that any idea or policy that can win majority support in such a society can hardly be tyrannical or despotic. It may, of course, be wrong; but that is a different story.
No, it is not the majority that is likely to be despotic or cruelly unjust in our society, it is the minority that may be unjust because it often does represent only 1 region or 1 narrow class attitude.
Senate debate on this issue, in my judgment, would be elevated if we heard much less of majority tyranny and much more of minority tyranny, when some minority can balk the wishes of the great majority of people.
I turn now to the toughest question of all—What can be done about the present rules that allow dangerous and undemocratic filibusters?
I hope very much that the Senate will adopt Senate Resolution 17, and that such arguments as I have presented may have some small part in that development. But if those Senators now favoring the almost unlimited right to filibuster cannot be won over by reason, then I suggest it is high time that the Senate majority favoring majority rule proceed to effective action.
What effective action do I mean? There have been many suggestions that the only hope is to change the rules by out-filibustering the filibusterers.
The majority, it has been said, might simply win the battle through the exhaustion of the minority. I am doubtful of this possibility. Such an attempt to overcome the filibusterers would, I think, make such heroes and martyrs of the filibusterers in their home States that it would simply strengthen their hand, politically.
Such a battle would deeply exacerbate the already strong feelings between northerners and southerners, both inside and outside the Senate.
Such a battle would require proper timing—but what is the proper time?
It would be difficult at the start of a session, and virtually impossible at the conclusion, when there is a press of business. In short, a direct assault on the present rules would probably fail, and, in any event, it might produce dangerous and unpredictable side effects.
There is, I think, a simpler method, provided that the necessary number of Senators possess the necessary resolution. The events of last January make it seem likely that at the beginning of a new Congress a point of order can be made, and upheld by the presiding officer or by a majority vote of the Senators present, that the former rules of the Senate expired with the previous Congress, and that new rules must be voted.
This point of order would be both debatable and debated, of course, and the crucial problem of this approach is whether the presiding officer holds that during discussion of this matter the Senate is operating under the old rules-allowing an endless filibuster-or under general parliamentary rules that would allow the question to be fairly deliberated, but would also enable a majority of the Senators present to make a decision.
I infer from the statement of Vice President Nixon last January that the Senate might have to debate such a matter under the old rules, but this is only an inference.
Since this question involves matters of Senate procedure beyond my competence, I will say no more about the specific procedure needed to break the present impasse, except to add that a resolute majority, with the ground well prepared, with public opinion carefully and thoroughly informed on the merits of the matter, and with the cooperation of the presiding officer, could, I believe, adopt rules that befit a Senate legislating in the 20th century.
I wish only to make a general observation on the merits of the issue.
Whenever the question arises as to the adoption of new rules, a Senator is sure to rise to assert that under our constitutional system of checks and balances the Senate is a continuing body and hence the rules of a previous Senate bind a newly composed one. This, I submit, is not true.
Neither the letter nor the spirit of the Constitution holds that the Senate is a continuing body;
Senator TALMADGE. Would you yield at this point ?
Has not the Supreme Court of the United States held that the Senate is a continuing body?
Mr. BURNS. Not in my judgment, sir.
Mr. BURNs. The Constitution simply established the Senate as a body composed of men with overlapping terms. The purpose was, of course, to prevent the Senate from being unduly influenced by a sudden turn of public opinion.
Now, this arrangement does not decree that the rules of the Senate must be "continuing." Quite the contrary—the spirit of the Constitution is that as the Senate becomes composed of new Members under this staggered method, it must deliberate and act accordingly.
More specifically, if the Senate over a period of years comes to be composed of a majority in favor of effective civil rights legislation, if it becomes so composed, not as a result of a sudden turn of public opinion, but after long experience and thought throughout the Nation, then, under the spirit of the Constitution, the Senate should act.
If our Founding Fathers had wanted a minority of Senators to be able to obstruct lawmaking, I imagine that they would have so provided in the Constitution.
May I say in conclusion, Mr. Chairman, that if there is a note of urgency in my final suggestion as to necessary action, it may arise in part from the fact that recently I made a trip to Russia and left that country with a feeling of urgency about the years immediately ahead of us.
I feel that the Soviet Union is far stronger industrially and economically than we realize, that there is a tremendous potential there that will emerge despite the iniquities and injustices of its political system. I think that we face a long-term struggle with Russia in the economic and social sphere, even if we maintain a military balance against the Kremlin.
Feeling thus, I am all the more eager that we look searchingly for the chinks in our own democratic armor, that we ferret out the governmental weaknesses that prevent us as a people from dealing quickly and effectively with our economic and social deficiencies at home.
As a student of parliamentary government here and abroad, as one who has walked through the Hålls of Parliaments that once were the proud spokesmen and executants for vigorous democracies, I am struck by the historic fact that those parliaments that could not deliberate meaningfully and act effectively for their peoples became mournful symbols of the failure of democracies to respond to challenges from within and without.
Let us make the Senate really the greatest deliberative body in the world by paying its debates the ultimate tribute the tribute of taking them seriously as the precursors to thoughtful action.
That, sir, concludes my statement.
Senator TALMADGE. Thank you very much for your very fine statement. I have 1 or 2 questions I would like to ask, please, Professor Burns. You have stated that you are a student of parliamentary procedures in other governments. What other parliamentary procedures have you studied besides those of the United States Senate?
Mr. BURNS. I actually said I was a student of parliamentary government, and by this I mean that I am a student of the political pressures that operate through these parliaments. To answer your question in that framework, I have particularly studied the operation of the British Parliament.'
Senator TALMADGE. Did you ever make a study of the German Reichstag? Mr. BURNS. No; I have not, in terms of procedures.
Senator TALMADGE. Do you know whether they had a debate-limitation rule under the tyranny of Adolf Hitler ?
Mr. BURNS. I assume they did, but I did not include the Reichstag as a parliamentary body.
Senator TALMADGE. Do you not think, when Hitler first came to power, that a strong group of German men with open and free discussion might have prevented some of the tyranny he imposed on the German people and later on the world?
Mr. BURNS. No; I do not. Senator TALMADGE. You don't think it would have helped at all ? Mr. BURNS. No. I think the things that weakened the German Republic were precisely the kind of procedures in the German Republic system prior to Hitler that made it difficult for the German Republic. to cope with the needs of the people, and hence helped pave the way for a man who said he could solve the problems of the people.
Senator TALMADGE. In other words, free discussion in parliament would not have helped, sir?
Mr. BURNS. No, sir. When I say free discussion, I think free discussion would have helped, but I don't think unlimited discussion would have helped. On the contrary, I am sure from experience in other parliaments that the Communists and other extremists in the Reichstag would have used those obstructionist measures to prevent the republican government from doing the things necessary for the people.
Senator TALMADGE. Senator?
Senator Javirs. Thank you. I just wanted to thank you, Professor Burns, for giving us the benefit of your counsel, and I found your statement very interesting, very provocative, very informative, and I hope it will be of use to us.
Senator TALMADGE. I appreciate your coming very much.
Senator TALMADGE. Mr. Omar B. Ketchum, director, national legislative service, Veterans of Foreign Wars of the United States.
STATEMENT OF OMAR B. KETCHUM, DIRECTOR, NATIONAL LEGIS
LATIVE SERVICE, VETERANS OF FOREIGN WARS OF THE UNITED STATES, ACCOMPANIED BY FRANCIS MCNAMARA, ASSISTANT LEGISLATIVE DIRECTOR
Mr. KETCHUM. Mr. Chairman, Senator Javits, I would like first to present my assistant legislative director, who is here with me this morning. I took the liberty of bringing him to the table because he has certain information in the event questions are asked.
Mr. Francis McNamara.
Senator TALMADGE. Thank you. We are delighted to have you with us, also, Mr. McNamara. · Mr. KETCHUM. I should also like to make a preliminary statement, Mr. Chairman, to the effect that the question in this hearing has arisen between our national conventions, and, because of that, we have no firm national-convention resolution on this subject. The statement I am about to make here this morning is based on the authority given our commander in chief to act between national conventions, on my authority as the legislative spokesman for the organization, and on my 17 years of experience, living with the organization and watching its conventions, and the types of resolutions which it has adopted over the years.
Now, undoubtedly, this question will be presented at our forthcoming convention in the latter part of August, but the commander did not know whether these hearings would be in existence after September. For that reason, he suggested that we make this preliminary statement, as we ascertain it, on what he believes would be the sentiment of the organization.
Senator Javits. In short, Mr. Ketchum, it is his personal position. Mr. KETCHUM. Well, personal position, as well as my contribution, based on my years of experience with the types of resolutions our organization has adopted, Senator Javits; such as support of the Bricker amendment to the Constitution; such as opposition to any form of world government, opposition to the Atlantic Union. I mean, it seems
Senator JAVITS. Do you equate the change in rule XXII with the Bricker amendment?
Mr. KETCHUM. Somewhat, yes. Somewhat, as a matter of protection of America, what we call protection of American sovereignty, protection of American institutions. In other words, perhaps a conservative position of the type which the organization has consistently taken.
Senator Javits. But this is not the action of the VFW?