1 am not to speak more than ..... e my remarks to a shorter period, nk on the matter of the Senate being a contin Dower is strong iding interest itical life. "equality" Mr. SAYE. McGrain v. Dougherty, in 1927, in which the s every other own s of nd Senator JAVITS. The case didn't rule that the Senate was a cotinuing body. Mr. SAYE. You may be right. This was part of the opinion of the Court in this particular case in 1927. My views of the United States Senate are not-well, from the historical point of view, I think that the Senate has been held in much higher esteem than would be inferred from some of the previous statements. But I have a prepared statement. I will go a little faster, I think, if I begin with it." Senator TALMADGE. Proceed. We don't want to hurry you unduly, but, at the same time, we do have many witnesses to hear, Doctor. We want you to take your time in your own way. Mr. SAYE. Gladstone described the United States Senate as "the most remarkable of all the inventions of modern politics." It occupies a unique place among legislative bodies. It was designed by the Federal Convention as a check upon hasty actions by the House of Representatives, as a participant in executive functions, as a guardian of State rights, and as a stabilizing influence in the whole constitutional system. Joseph Story called it the "balance wheel" in our Government. It has served its purpose well. Since its organization on April 6, 1789, there has never been a time when the Senate, as an organized body, has not been available at the President's call, or in accord with the terms of its own adjournment. for the transaction of public business. Its rules, adopted 10 days after its organization, have remained in force from 1789 to 1957 without reaffirmation. Amendments to these rules have been adopted in the And I am referring now to former President Harry Truman. It has often been said that the filibuster gives a few Senators a veto power. That may not be a bad thing. Our country demanded the power of the veto in the United Nations, so that it would be able to protect its interests against an overwhelming majority vote of the 80 or so nations in that organization. Most Americans supported, and still support, that demand and the protection it has brought to this country in the world agency. For this reason, strong argument can be presented for what is actually a very limited veto power in the Senate for the protection of the individual States which make up this Nation. In closing, I would again like to express my appreciation for the opportunity to testify on this subject. Senator TALMADGE. Any questions? Senator JAVITS. I don't want to detain Mr. Ketchum. I just have two questions, both very brief. Does the VFW have any resolution which it adopted on the so-called civil-rights measure? Mr. KETCHUM. They do not. Senator JAVITS. Is it intended to submit to them this August, at the time of the Convention, a resolution on rule XXII? Mr. KETCHUM. I am not even sure a resolution on rule XXII will be submitted. Certainly I am not submitting one, but one may come. I have no advance knowledge that any resolution will come up on civil rights. We have attempted over the years to avoid becoming involved in the civil rights issue. Senator JAVITS. Well, you are involved in it right up to your ears with this testimony, are you not? Mr. KETCHUM. I don't think I have attempted to convey anything about civil rights here this morning. Senator JAVITS. As a matter of fact, you know, do you not, that that is the principal fulcrum of this argument, that is, because the civil rights bills have been blocked? Senator TALMADGE. Will the Senator vield? Mr. KETCHUM. It would be civil rights today. Senator TALMADGE. Essentially, this rule was adopted in 1917. I don't believe there was much agitation for giving the Attorney General inquisitorial powers at that time. Senator JAVITS. Is there anything in the Constitution about free and unlimited debate in the Senate? Mr. KETCHUM. In the Constitution of the United States? Mr. KETCHUM. No. I don't recall anything. Senator JAVITS. As a matter of fact, isn't it true that when the Senate was first organized, debate could be shut off by a majority? Mr. KETCHUM. Yes, sir; I assume until there was a rule, a cloture rule, unlimited debate ruled. Senator JAVITS. That was the case from the time of organization until 1806.' I am not trying to run a quiz on the questions. That is the historic fact. Thank you very much. Senator TALMADGE. Thank you, Mr. Ketchum. We appreciate your statement. Dr. Albert B. Saye. I would like to state for the record that Dr. Saye and I were students at the University of Georgia together. He appears here today at my request. He is one of the finest and most outstanding students of history and constitutional government in our section of the country and the Nation. We are very happy to have you with us, Dr. Saye. Senator JAVITS. May I say I join my colleague in welcoming you. STATEMENT OF DR. ALBERT B. SAYE, PROFESSOR OF POLITICAL SCIENCE, UNIVERSITY OF GEORGIA, ATHENS, GA. Mr. SAYE. Thank you. I understand I am not to speak more than 30 minutes, and I think that I can confine my remarks to a shorter period. There will be a good bit of similarity in what I have to say with some of the comments of the previous speaker. There will be a great contrast between what I have to say and what was said by the former political scientist speaking this morning. I think on the matter of the Senate being a continuous body, Mr. Chairman, it might be well to mention the name of the case Senator TALMADGE. I wish you would put it in the record. (The pertinent portion of the Supreme Court decision in McGrain v. Dougherty may be found on p. 147.) Mr. SAYE. McGrain v. Dougherty, in 1927, in which the Supreme Court specifically ruled that the Senate was a continuous body. Senator JAVITS. Would you yield? My recollection of that case is that there was dicta in it, which related to certain aspects of it. Mr. SAYE. You are quite right. Senator JAVITS. The case didn't rule that the Senate was a continuing body. Mr. SAYE. You may be right. This was part of the opinion of the Court in this particular case in 1927. My views of the United States Senate are not-well, from the historical point of view, I think that the Senate has been held in much higher esteem than would be inferred from some of the previous statements. But I have a prepared statement. I will go a little faster, I think, if I begin with it. Senator TALMADGE. Proceed. We don't want to hurry you unduly, but, at the same time, we do have many witnesses to hear, Doctor. We want you to take your time in your own way. Mr. SAYE. Gladstone described the United States Senate as "the most remarkable of all the inventions of modern politics." It occupies a unique place among legislative bodies. It was designed by the Federal Convention as a check upon hasty actions by the House of Representatives, as a participant in executive functions, as a guardian of State rights, and as a stabilizing influence in the whole constitutional system. Joseph Story called it the "balance wheel" in our Government. It has served its purpose well. Since its organization on April 6, 1789, there has never been a time when the Senate, as an organized body, has not been available at the President's call, or in accord with the terms of its own adjournment, for the transaction of public business. Its rules, adopted 10 days after its organization, have remained in force from 1789 to 1957 without reaffirmation. Amendments to these rules have been adopted in the regular course of business, but it is a late date, indeed, to suggest that the Senate is not a continuous body. Every person with an appreciation of American history knows that it is. And serious students of American Government know that any change in the Senate rules will have repercussions on our whole constitutional structure. Mr. Chairman, there are two principal points I have to make in this discussion. The first deals with the effect of rules on the relation of the Executive to the legislative, particularly the relation of the Executive to the Senate. No European state entrusts to its legislature the direct participation in executive functions which the Senate enjoys. Ours is a presidential government, with a check and balance accompanying a separation of powers. A contest for power between the Executive and legislature is inherent in the separation principle. In the shift in power through the years, the President has tended to expand in power at the expense of the legislature. Freedom of debate in the Senate has served as the most effective check on Presidential absolutism. The prestige of the President's office and the opportunity for a constant stream of self-advertising gives the President an advantage in dealing with Congress. He does not have to face the House in open debate as does an English prime minister. When his party is the majority party in Congress, the President's party leaders have little difficulty in passing anything in the House. With its majority cloture and gag rules, the House is largely a rubber stamp. It is no accident that the collective judgment of the Senate produces superior legislation to that passed by the House which frequently represents no more than the hasty judgment of a few party leaders. The Senate is the only forum in the Nation that can check on executive and party propaganda. It is the only forum where a majority President can be forced to explain the meaning of proposed legislation. It is the forum where minority criticisms can be effectively voiced and minority aspirations expressed. Alteration in rule XXII as proposed by Senate Resolution 17, Senate Resolution 21, or Senate Resolution 28 would drastically alter the relation between the President and Congress. It would be a long step toward supplanting parliamentary government as America has known it, where legislators count as individuals and vote on legislation on its merits, by party government as it exists in European states, where legislators count but little as individuals and vote by blocs as the party leaders dictate, without incorporating the responsibility of the executive to the legislature, which is viewed as the chief advantage of the cabinet form of government. A change in rule XXII is far more serious than many people realize. For an excellent coverage of the significance of freedom of debate in the Senate to executive-legislation relations, I invite your attention to the Lindsay Rogers, The American Senate, 1931, a thoughtful study not written in a period of agitation. The second part of my paper has to do with protection of minority rights. The concept of majority rule is simple, but the concept of unrestrained majority rule is foreign to our written Constitution and to the spirit of American political institutions. A Federal union is not designed to enable one section to triumph over another, or the numerical majority in the Nation to force any section to the breaking point. There are areas in which self-restraint, tolerance for the opinion of others, and compromise are to be preferred to force. Calhoun's doctrine of the concurrent majority is constantly at play in American. politics. Its stronghold is the "consensus" within our political parties. It finds expression in the selection of "available" candidates for office, and in the enactment of legislation. The unanimous-consent agreement made in the Senate on January 3 of this year for handling the motion by Senator Anderson to take up for immediate consideration rules for the Senate is a clear example of the doctrine in operation. As John Fischer has pointed out in Unwritten Rules of American Politics, Harper's magazine, November 1948: Government by concurrent majority can exist only when no one power is strong enough to dominate completely, and then only when all of the contending interest groups recognize and abide by certain rules of the game. These rules are the fundamental bond of unity in American political life. They can be summed up as a habit of extraordinary toleration, plus "equality" in the peculiar American meaning of that term. * * * Under these rules every group tacitly binds itself to tolerate the interests and opinions of every other group. It must not try to impose its views on others, nor can it press its own special interests to the point where they seriously endanger the interests of other groups or of the Nation as a whole. Furthermore, each group must exercise its implied veto with responsibility and discretion; and in times of great emergency it must forsake its veto right altogether. It dare not be intransigent or doctrinaire. It must make every conceivable effort to compromise, relying on its veto only as a last resort. For if any player wields this weapon recklessly, the game will break up-or all the other players will turn on him in anger, suspend the rules for the time being, and maul those very interests he is trying so desperately to protect. That was what happened in 1860, when the followers of Calhoun carried his doctrine to an unbearable extreme. *** Now it is an unwritten but firm rule of Congress that no important bloc shall ever be voted down-under normal circumstances-on any matter which touches its own vital interests. Each of them, in other words, has a tacit right of veto on legislation in which it is primarily concerned. The ultimate expression of this right is the institution-uniquely American-of the filibuster in the Senate. Recently it has acquired a bad name among liberals because the southern conservatives have used it ruthlessly to fight off civil-rights legislation and protect white supremacy. Not so long ago, however, the filibuster was the stoutest weapon of such men as Norris and the La Follettes in defending many a progressive cause A rule is" a prescribed guide for conduct." Rules serve their purpose best when adopted in a calm atmosphere and adhered to in moments of agitation. In a time of agitation over enactment of highly controversial legislation an appropriate time to change the rule which has enabled the Senate to serve as the balanced wheel in our whole constitutional structure? Any change or proposed change at this time is likely to be influenced unduly by agitation on a single issue. And I understand from Mr. Javits' remarks that that is intimately connected with this proposal in the change in the rules. The change made in 1949 has not been well reported in the press; and few people outside the Senate realize that section 3 added to rule XXII only an express statement of a provision already implicit in the existing rule, as repeatedly affirmed by action of the Senate. Let the Senate abide in this period of agitation by the rule of freedom of debate that has served well since the Senate was organized in 1789. States wanting FEPC and kindred legislation are free to enact |