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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' resolution. 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 others, by a Clinton, Tenn., judge. We felt that the order could have been construed to have enjoined free speech, which we felt in that case should have been extended even to advocacy urging disobedience of a previous order.

We have carried this concern for free speech to the floor of the United States Senate in one of its most heated political debates of this decade—the debate involving the censure of the late Senator Joseph R. McCarthy.

Whereas the American Civil Liberties Union approved certain portions of that censure, we advised against censuring Senator McCarthy on the ground that he had been contemptuous in attacking the Watkins report and the committee which wrote the report because such censure, we felt, would establish a bad precedent for free speech in the Senate of the United States.

It is because of this long devotion to and deep concern for freedom of expression that the American Civil Liberties Union has been unalterably opposed to the practice of filibustering in the Senate of the United States. Accordingly, we urge a reforming of rule XXII.

Our opposition to filibustering rests on the simple proposition that the purpose of free speech, particularly that expressing a minority view, is to help in the formulation of wise decision by majority wili. Frustrating that majority will by a minority engaged in filibustering tactics cannot be condoned.

In behalf of my organization, I am proud to say that our opposition has been consistent and steadfast.

For instance, in the spring of 1953, during the opening weeks of the 83d Congress, we expressed our concern early in the debate on tidelands legislation that it not be extended to filibuster.

At that time, the late Senate Robert A. Taft took cognizance of our position by placing our statement into the Congressional Record, a copy of which, with the permission of this committee, I would like to have filed into the record of this hearing.

Senator TALMADGE. Without objection, it is so ordered. (The statement referred to is as follows:)

[From the Congressional Record of April 22, 1953, p. 3739] Mr. TaFt. Mr. President, I ask unanimous consent to have printed in the body of the Record a news release by the American Civil Liberties Union, attaching a letter from Patrick Murphy Malin, executive director, to the Honorable Paul H. Douglas, commenting on and regretting the fact that the Senator from Illinois should be engaged in a filibuster.

There being no objection, the release and letter were ordered to be printed in the Record, as follows:

“APRIL 22, 1953.—The Senators opposing the tidelands bill were urged today not to conduct their floor debate to the point of filibustering.

"In a letter addressed to several of the Senators leading the debate against the administration offshore-oil bill, Patrick Murphy Malin, executive director of the American Civil Liberties Union, emphasized that there is some good evidence that the opponents of the bill are not going beyond what is needed to insure adequate debate, and recording of expressions of individual opposition. However, he cautioned that public reaction justifies a hope that even the appearance of filibustering will be avoided.

"Malin, in his letter, reaffirmed the ACLU's position on filibustering as follows:

“ 'Democratic action means decision by the majority after thorough discussion of all points of view. Our Constitution is gloriously emphatic in its protection of individuals and minority groups, and of even the smallest sovereign State in our Federal Union. The American Civil Liberties Union is constantly engaged in supporting those protections. But we believe there are enough of them without the Senate filibuster.

“ 'Dictatorships act quickly and tyrannically. Democracies—to preserve their nature-must act relatively slowly, after mature deliberation. But their legislatures must act in foreign and domestic policy; and there was never a time in history when their ability to act was more crucial than it is today. The Senate is under the compulsion of the time in which we live to act now to make itself free to decide for or against vital legislative proposals. Our democracy cannot afford indefinite postponement of decision. The purpose of free speech is to aid decision-for or against, right or wrong—not to prevent decision. Decision by filibuster is analogous to decision by dictatorship. It is the tyrannical decision by a minority over a majority.''

“AMERICAN CIVIL LIBERTIES UNION,

New York, N. Y., April 21, 1953. “Hon. PAUL H. DOUGLAS, "United States Senate,

Washington, D. C. "MY DEAR SENATOR: In my testimony on behalf of the American Civil Liberties Union on October 2, 1951, before a subcommittee of the Senate Committee on Rules and Administration during hearings on four resolutions dealing with cloture, I said in part:

“ 'The four resolutions * * * all aim * * * to improve on the present solution of the age-old problem of democracy: How to balance the need for full debate and the need for prompt action. * * * Our interest in this problem of cloture goes to the root of the matter, and is not confined to an effort to eliminate obstruction to any particular legislative proposal. * * *

“ 'Democratic action means decision by the majority after thorough discussion of all points of view. Our Constitution is gloriously emphatic in its protection of individuals and minority groups, and of even the smallest sovereign State in our Federal Union. The American Civil Liberties Union is constantly engaged in supporting those protections. But we believe there are enough of them without the Senate filibuster.

“ 'Dictatorships act quickly and tyrannically. Democracies—to preserve their nature—must act relatively slowly, after mature deliberation. But their legislatures must act in foreign and domestic policy; and there was never a time in history when their ability to act was more crucial than it is today. The Senate is under the compulsion of the time in which we live to act now to make itself free to decide for or against vital legislative proposals. Our democracy cannot afford indefinite postponement of decision. The purpose of free speech is to aid decision-for or against, right or wrong—not to prevent decision. Decision by filibuster is analogous to decision by ditcatorship. It is the typrannical decision by a minority over a majority.'

"We write now with respect to the present debate on the offshore-bill, though of course not taking any position on the merits of the bill itself. Without detailed examination of the record, we cannot judge the question of whether there has been what we would regard as adequate debate on facts and ideas; and there is some good evidence that the opponents of the bill are not going beyond what is needed to record their individual opposition, or introducing irrelevant material. But certain public reactions give us enough cause for concern so that we must express our earnest hope that even the appearance of filibustering will be avoided-for the sake of the considerations outlined in the above excerpts from my 1951 testimony, for the sake of other legislation on which prompt action has been or will be threatened by filibuster, and for the sake of the leadership which opponents of this bill have so long demonstrated in applying all the principles of the American rule of law. “Sincerely yours,

PATRICK MURPHY MALIN,

Executive Director."

Mr. Douglas. Mr. President, the Senator from Ohio has been courteous in this matter. He did not place the letter in the Record until he had consulted with me and found that I had received it. The Senator from Ohio has acted the part of a gentlemen throughout this whole affair, in thorough keeping with his good character and reputation.

However, I wish to point out that we who are opposing the joint resolution are not engaged in a filibuster. [Laughter.] It is very important that we keep in mind the fundamental characteristics of a filibuster. A filibuster is a prolonged discussion intended to prevent a vote. There is no such desire on the part

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