i. Any of the so-called civil rights legislation that any State wants to enact, it can enact today.

The Federal constitutional system was designed to permit the people within each State to mind their own business within a broad range. Extremists on both sides agitating racial problems may already have had their heydey. There is a wealth of good feeling among the American people. Education, not force, is the answer to many of our sectional problems. The road may be longer, but it is much safer. That concludes my remarks, Mr. Chairman.

Senator TALMADGE. Any questions?

Senator JAVITS. I just wanted to thank you, Professor, for being here. I had only one question.

As you say, so many of these arguments answer each other, we don't have to introduce more questions than already exist.

I notice what you said about each State being able, if it wishes, to adopt its own law on so-called civil rights. Of course, we have in New York a great many of such laws.

But I did want to ask you, don't you think it was a different situation for the right to vote for Federal office, which is the very keystone of this civil rights bill now on the Senate Calendar-don't you feel that when it comes to the right to vote for Federal office, the whole American people have an interest?

Mr. SAYE. Senator Javits, as I understand the proposed bill, it is an amendment to the old Ku Klux Klan Act, adding sections 4 and 5 to three sections of a bill which the United States Court, in United States v. Harris, declared to be unconstitutional.

If it were merely a matter of voting involved, I don't think there would be nearly so much opposition to the proposed so-called civil rights bill. I think the President asked for a moderate bill in this field. I think he has been duped. I think he has been misled by the so-called moderate measure that is now proposed.

He spoke yesterday in favor of reviving State rights; yet the bill which his leaders are bringing every pressure to get through the Congress would vastly supplant State administration of justice by a free play of the Federal judges in fields never before dreamed of by the Federal courts; and under the vaguest type of legislation, only having a suspicion of a violation of equal protection.

There is practically no definition. It is not confined to voting. If that were the situation, it would be quite a different thing.

I think perhaps Mr. Eisenhower intended a bill relating principally to voting. I don't think that would arouse a great deal of opposition. But this other involves many things other than voting. As a matter of fact, we don't know what it involves. It gives the judges free play and destroys the right of trial by jury. Senator JAVITS. In other words, you think the main objection to this bill is rather the drafting.

Mr. SAYE. The generalities of the bill.

Senator JAVITS. The terms of the bill, rather than the objective of trying to get voting.

But, do you agree with me, therefore, Professor-understand, we are not trying to trap you into any answers at all. I am advising you about that, because I don't want to in any way embarrass you. Do you agree with me, however, that the whole American people have an interest in the integrity of the voting right of the individual,

regardless of his color, in any State where he was voting for Federal office?

Mr. SAYE. Voting for Federal offices, I would agree with you. Senator JAVITS. Thank you very much.

Senator TALMADGE. Dr. Saye, I hate to inject an extraneous issue, but since my colleague brought it up, I don't think the record ought to be left incomplete.

Is it not true that any citizen in America now has the right to vote and can enforce that right in the Federal courts, either civilly or criminally?

Mr. SAYE. I am not sure about the "civilly." I think they can sue for damages, Mr. Chairman. They are certainly exercising their right, if it is relating to the colored people in the South. It is rather amazing the rapidity with which they are registering to vote in large numbers.

I made some study recently of the registration of colored voters in the Southern States. It is a little difficult to get accurate figures in all of the States, but the increase is striking. And certainly they have the right to bring suit, if they are denied.

As a matter of fact, I don't think I am certain in my own State of Georgia that there is no attempt to deny the right to vote to anyone for Federal or State offices on the basis of race or color.

Senator TALMADGE. Thank you very much, Dr. Saye, for your very valuable statement.

We appreciate your coming.

Mr. SAYE. Thank you, sir.

Senator TALMADGE. The next witness is Dr. Franklin Burdette, director, Bureau of Governmental Research, University of Maryland, College Park, Md.

STATEMENT OF DR. FRANKLIN L. BURDETTE, DIRECTOR, BUREAU OF GOVERNMENTAL RESEARCH, UNIVERSITY OF MARYLAND, COLLEGE PARK, MD.

Senator JAVITS. Mr. Chairman, if I may, I would like to welcome Dr. Burdette who appears on our invitation.

Senator TALMADGE. Fine. We are delighted to have him here. Mr. BURDETTE. Thank you, Senators.

During 20 years of study of the Senate I have been convinced that freedom of debate can easily be preserved through a formula which will at the same time permit majority cloture. I think that the influence and prestige of the Senate, which are of enormous importance to the Nation and even to the world, can be enhanced by its adoption.

I cannot overemphasize the importance of full debate in the Senate. There is no other forum in which all sides of public issues can so easily be heard, no other agency which can so adequately bring both governmental action and public sentiment into revealing political sunlight, no other institution which can so effectively check executive power. These facts flow in part from the constitutional position of the Senate and from the terms and size of its membership; but they flow also in part from the political independence which free debate has given to the Senate. The absence of a rule of relevance in debate is an important part of that independence, and I should be the last to substitute a rule of relevance for broad and immediate freedom of discussion.

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As a student of and writer about filibustering, I am keenly aware of the potential importance of the filibuster to force full consideration of public measures and to prevent hasty or ill-considered action. A filibuster is often undignified and in a society without conflict would never be necessary. The late Senator Theodore E. Burton of Ohio ably stated "three cases in which a filibuster is not only justifiable but salutary." The first would arise, he thought, "when a vital question of constitutional right is involved"; the second, "when the measure is evidently the result of crude or inconsiderate action"; and the third, when "because of some compulsion" a vote "will not express the honest conviction of the Members." Obviously these categories leave much to the individual consciences of Senators and are subject to abuse. If there are occasions when filibustering is justified-and certainly I can conceive such extraordinary circumstances every proper parliamentary effort ought to be made not only to conserve for emergencies that palladium of justice and liberty but also to prevent its misuse.

Majority cloture predicated on adequate opportunity for full and free debate will not completely prevent filibusters. It will make longer ones more difficult and sometimes more tempestuous, and I believe that it will rightly require loftier and more justifiable grounds for obstruction. The art of obstruction should be a last and not a first resort. Filibustering through protracted debate is more easily defended before the public, more easily masked as discussion rather than obstruction, than are other forms of filibustering permitted by the Constitution and by the Senate rules.

Article I, section 5, paragraph 3 of the Constitution provides:

*** and the yeas and nays of the Members of either House on any question shall, at the desire of one-fifth of those present, be entered on the Journal.

I might say that the late Senator Robert L. Owen of Oklahoma advanced vigorously, although I think perhaps more ingeniously than persuasively, the view that this constitutional clause guarantees to one-fifth or more of the Members of either House the immediate right to have their views recorded on the Journal.

While that view is a historic fact, it has never been adopted in the parliamentary practice of either of the Chambers.

If a large number of germane amendments should be introduced prior to the application of cloture on any measure, the constitutional provision guarantees the possibility of extended and time-consuming voting. In 1922 Senator Oscar W. Underwood of Alabama, in denying that a filibuster was underway merely because of long debate, estimated that 8,000 rollcalls could be arranged to account for 2,000 hours or 200 10-hour days, without a word of debate. In 1917 a Republican minority forced 33 consecutive rollcall votes in a period of 5 hours, demonstrating that a fraction more than one-fifth of the Members can paralyze the Senate.

Harsh filibusters of this sort are obviously last resorts in a body of the dignity and prestige of the Senate. Yet they preclude the accusation sometimes made, in the words of Senator Hiram W. Johnson of California, that many long debates, without continuous sessions or strict enforcement of the rules, are "pink tea" or "feather duster" filibusters. In them both sides of a controversy may make political capital, generating more bitterness in the newspapers than in the Senate. There is some evidence, I think, that identification and

condemnation of these arrangements may have reduced their prevalence. At any rate, publicity about them has reinforced demands for cloture after reasonable debate.

In my view, majority cloture after full debate is a modest change for the Senate, fully consistent with real freedom of deliberation. Moreover, it should increase the influence of the Senate in our governmental system (in my judgment a highly desirable objective) if for no other reason than the greater spread of senatorial attention over a large number of governmental problems. In analyzing obstruction, we often overlook the subtle effects of threatened or potential filibusters in siphoning away the quality and quantity of senatorial influence on policy and administration. To the extent that filibustering, when it must be used at all, can be reserved for the great crises which divide America-a republic on the whole fortunately homogeneous socially and politically-the more certainly can we expect the influence of the Senate as a deliberative council to increase. These are times when there is profound need in America and in the world for that increase. Senator TALMADGE. Any questions?

Senator JAVITS. It just occurred to me, though it is not directly related to your paper, Mr. Burdette, and I don't want to delay you at all, that the House has taken quite a kicking around in these hearings so far.

I served over there, and I found that debate was rough and tumble, but very relevant, and that men and women could disclose their views, even within the short compass of time that we had; that the right to demand an enrolled bill often resulted in a matter going over, overnight, upon the objection of only one Member; that if a Member really got very obstreperous, he would object to all kinds of unanimous consents, insisting upon punctilious reading of the Journal, and compliance with the rules, and generally raises a little havoc and kind of have a little filibuster of his own.

I wonder if you think the House really deserves the kind of airing given it in this hearing, that they rush all debate through without debating things at all?

Mr. BURDETTE. Certainly, as you point out, filibustering is possible in the House. In general, the House permits its Members to raise issues on their minds at times when the work of the House is not pressing. In my judgment, however, the situation in the House is such that the degree of debate depends upon the attitude of the leadership. The contrary situation is true in the Senate.

As a consequence, the committees of the House have become more influential there than respectively the committees in the Senate.

The Senate still remains, I think, the body where unpopular, extraordinary, little-publicized views may be brought forth, and I think it should.

But I do not think that cloture under any plan which has been proposed by reasonable persons would limit that aspect of the Senate function.

Senator JAVITS. Would you say that specifically of Senator Douglas' Resolution 17, which permits cloture after 15 days of a constitutional majority?

Mr. BURDETTE. It should, Senator Javits. I agree. I am a little troubled perhaps about only one portion of Senator Douglas' resolu

tion. I feel in respect to Senate Resolution 17, on page 3, line 8, that where cloture may be voted by the majority of all the Senators chosen and sworn on the 15th calendar day, exclusive of Sundays and legal holidays, there is a problem that the leadership of the Senate might adjourn the Senate under some circumstances, or might find ways of precluding debate.

I realize that whatever the unfinished business of the Senate might be within the 15-day period, any Senator-without the rule of relevance, and there is no rule of relevance in the Senate now-could speak to the subject on his mind.

I should be a little prone to suggest that there be inserted here, after the words "exclusive of Sundays and legal holidays," "and calendar days on which the Senate does not meet."

I should also say that I think that would cause a reexamination of the word "fifteen". I think perhaps I can make my point clear that I do want, as I look upon the history of free debate in the Senate, to recommend that we be certain that the Senate as an institution plans for sufficient time for all views to be presented, regardless of the position of the majority or of the leadership.

Senator JAVITS. Thank you, Professor. I think that is very constructive.

Mr. Chairman, I would also suggest, if I may, to Professor Burns and to Professor Saye that if they have any specific suggestions as to the pending bills, they be good enough to let us have them.

Senator TALMADGE. We would be happy to receive any further communication from any witness at any time, and particularly from those who have made an intensive study of this subject.

Thank you very much. We appreciate your coming, Professor.
Mr. BURDETTE. Thank you, sir.

Senator TALMADGE. Mr. Brant was scheduled as the next witness, but he will appear Friday instead.

The next and last witness for today is Mr. Irving Ferman, American Civil Liberties Union, Washington, D. C.

STATEMENT OF IRVING FERMAN, DIRECTOR, WASHINGTON, D. C., OFFICE, AMERICAN CIVIL LIBERTIES UNION

Mr. FERMAN. Thank you, Mr. Chairman.

My name is Irving Ferman. I speak in behalf of the American Civil Liberties Union, as director of its Washington, D. C., office. I am also a member of the Bar of the State of Louisiana.

I think it appropriate to state that the American Civil Liberties Union has long been opposed and has expressed its opposition strongly to communism and fascism, and any other form of government that denies the basic guaranty of our Bill of Rights.

Throughout its near 40-year history, the union has been one of the stoutest defenders of the constitutional guaranties of free speech. Over this history, we have defended the free speech without distinction or compromise of persons and groups of all kinds of political disposition, some of whom have held extreme views. We are dedicated to this task in this way so that the free speech of all will be maintained and safeguarded.

For example, this year the American Civil Liberties Union criticized the issuance of the injunctive order against John Kaspar, and 16