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avoid the recurrence of such an unfortunate incident, which might reflect adversely upon all of us. Sincerely yours,
THOMAS G. HENNINGS, Jr.
UNITED STATES SENATE,
June 27, 1957.
United States Senate, Washington, D.O. DEAR TOM: Thank you for your letter of June 24 calling to my attention the pamphlet distributed by Mr. Hancock, who appeared before the Special Subcommittee on Rule XXII.
Please be assured that I was not aware of its distribution and that I do not concur in either its style of presentation or content. I agree fully with your position that any impression that such literature would be sanctioned by the Committee on Rules and Administration must be dispelled.
Your letter will be made a part of the record of the proceedings of the special subcommittee at its next hearing date, Friday, June 28.
You may be further assured that I shall take every precaution to see that there is no further abuse of the privilege of testifying before the special subcommittee on the part of any witness. With every good wishes, I am Sincerely,
HERMAN E. TALMADGE.
STATEMENT OF HON. CHARLES E. POTTER, A UNITED STATES SENATOR FROM THE
STATE OF MICHIGAN I am gratified that this special subcommittee is currently studying proposed changes in rule XXII of the Senate. Rule XXII should have been changed long ago, but its prompt revision now is most urgent and timely in view of the recent action of the Senate in placing House-passed civil rights legislation on the Sen. ate calendar. By so doing, a substantial majority of the Members of the Senate not only made clear their desire to have the right to vote on this legislation, and not have it strangled in committee, but, in my judgment, they also clearly and forcefully indicated their vigorous approval of the legislation. Unless rule XXII is changed, the pending civil rights measure is in serious jeopardy-it threatens to be filibustered to death by a small minority thus vitiating the will of a substantial majority.
Rule XXII in its present form is not a positive procedural method of conducting Senate business; it is a substantive means of preventing the majority of the Senate and of the people from determining vital substantive issues.
Adequate debate on the merits of all legislation must always be permitted in the interest of sound and wise legislation and to insure complete protection of the rights of all minorities. But, unfortunately, rule XXII has been employed on too many occasions to accomplish a purpose for which it was not designed nor intended. A rule that allows a small minority to thwart the will of the Senate, so that a vote may not be taken, destroys the very concept of our republican form of government.
I would oppose with all my might any measure that sought to curtail adequate debate, but the contention that a reasonable limitation on debate poses a threat to minorities is specious and in my opinion utter nonsense.
The critical times in which we live demand that our rules provide for efficiency in legislating. Interminable debate in too many cases has seriously impaired the efficiency of the Senate. Aside from the damaging effect rule XXII can have on the pending civil rights legislation, the rule stands as a constant and continuing threat that might be invoked in time of grave international crises when the very security of our Nation is immediately imperiled and reasonably swift legislative action is imperative.
Opponents of civil rights legislation have endeavored to becloud the major issue involved, specifically, shall a majority of the Senate have the right to vote on legislation after reasonable and adequate debate. This has been done with specious and self-serving questions as to whether or not the Senate has a right
to change its rules and with spurious charges that reasonable limitation of debate will impinge upon the rights of minorities.
Majority rule, with adequate safeguards for minorities, is the basic principle of legislative action prescribed by our Constitution. The authors of the Constitution prescribed majority rule as the rule for congressional action by expressly enumerating all the instances in which more than a simple majority vote was to be required. A revision of congressional rules was not enumerated as requiring a two-thirds majority. I am sure that if the framers of the Constitution with their gift for clarity of expression had so intended, it would have been made crystal clear. But such was not the case. They clearly spelled out the exceptions to the rule so that there could be no possible misunderstanding as to the rule itself.
I respectfully urge the committee to promptly recommend legislation that will revise rule XXII, and permit a vote to be taken on the proposal after ample debate. The Senate, as the greatest deliberative body in the world, cannot endure as such and perform its constitutional responsibilities of representing all the people in our Nation under the ever-present threat of filibuster. It is a roadblock to progress and achievement that must be removed.
Senator TALMADGE. Are there any Senators present to testify at this time? If not, we will proceed with the testimony of Mr. Walter P. Reuther, president of the United Automobile Workers.
Proceed, if you will, Mr. Reuther. We are happy to have you with us.
STATEMENT OF WALTER P. REUTHER, PRESIDENT, UNITED
AUTOMOBILE WORKERS (AFI-CIO) · Mr. REUTHER. Thank you, Senator.
Mr. name is Walter P. Reuther and I am president of the United Automobile Workers, a labor organization representing approximately 112 million members in the automotive, the aircraft, and the agricultural implement industries.
I should like first of all to express my sincere appreciation for this opportunity of appearing before your committee, and I would like to submit for the record a prepared statement. Then I would like to elaborate on it orally, if I might.
Senator TALMADGE. We would be happy to have you do so.
STATEMENT IN SUPPORT OF MAJORITY RULE BY WALTER P. REUTHER, PRESIDENT
OF UNITED AUTOMOBILE WORKERS (AFL-CIO)
We are particularly pleased at this opportunity to testify before your special subcommittee in support of majority rule in the Senate of the United States both because our union has had a long and continuing interest in this subject and because of its vital significance to our way of life. We in the UAW firmly believe that rule XXII is the No. 1 legislative roadblock to a more democratic America and that only by rewriting this rule to permit majority cloture after full and fair debate can we achieve the goal of freedom, equality, and abundance for all.
As far back as 1951, I had the privilege, on behalf of our union, to present to this same committee a carefully documented brief prepared by our Washington counsel and our national legislative representative in support of the proposition that rule XXII of the Senate violates the Constitution of the United States. This brief and my testimony at that time have been credited by Senator Russell and others with originating the proposition that the Senate of each new Congress has the right to determine its own rules unfettered by the dead hand of the past and that rule XXII could be rewritten at the opening of the Senate of any new Congress whenever 49 Senators made up their minds to do so. We would indeed be gratified if we could accept this “Oscar” from Senator Russell. But, fortunately or unfortunately, Senator Tom Walsh of Montana made this proposal before I was out of knee pants and our role in the UAW was simply to call to the Senate's attention what Senator Walsh had said and done many years before.
One thing I will admit, however, is that we have never lacked for interest in bringing about majority rule in the Senate. Day after day, month after month, year after year since our brief and testimony in 1951, the UAW has tried to keep the issue of rule XXII before the people. At our last convention, held in Atlantic City in April, we adopted this resolution:
"This convention of the UAW commends the courageous efforts of the bipartisan committee of Senators who led the gallant fight for a change in Senate rule XXII at the opening of the 85th Congress.
“We pledge our continued support to this bipartisan group of Senators in their unrelenting efforts to establish majority rule in the Senate of the United States. We will intensify our campaign to persuade or elect Senators who will join in the campaign to end filibuster rule by changing rule XXII to provide for majority rule in the United States Senate."
Support for majority rule comes not from our union alone. The labor movement is firmly committed to this principle. At the founding convention of the American Federation of Labor and Congress of Industrial Organizations a resolution was unanimously adopted which provides in relevant part as follows:
"As an essential preliminary to the enactment of civil-rights legislation * * * we urge that the rules be so amended that the will of the Congress may not be stultified by a recalcitrant minority. Rule XXII should be changed to permit à majority of Senators present and voting to limit and close debate.”
We believe that rule XXII betrays the fundamental principle of majority rule inherent in democratic government and imbedded in our Constitution. Having just said this, it gives me somewhat of a start to realize that in the year 1957 so obvious a thing even had to be stated. For if there is one proposition that should be accepted by all who assert their devotion to democratic principles and to the Constitution of the United States, it is that our Government was founded upon the principle of majority rule and that rule XXII, which permits a minority of Senators to prevent the majority from acting, contravenes that basic principle, and is therefore unconstitutional
The Constitution established majority rule as the basic principle of our Government. Those who attended the Constitutional Convention had seen the impotence of the Government acting under the Articles of Confederation, which required a two-thirds vote of the States on all important matters (Articles of Confederation, art. IX, art. X). Having seen what minority rule could do, the Constitutional Convention governed itself by majority rule and continuously made clear its devotion to that principle. Alexander Hamilton, writing in The Federalist, No. 22, spoke for the Convention when he said:
"The public business must, in some way or another, go forward. If a pertinacious minority can control the opinion of a majority, respecting the best mode of conducting it, the majority, in order that something may be done, must conform to the views of the minority; and thus the sense of the smaller number will overrule that of the greater, and give a tone to the national proceedings. Hence, tedious delays; continual negotiation and intrigue; contemptible compromises of the public good. And yet, in such a system, it is even happy when such compromises can take place; for upon some occasions things will not admit of accommodation; and then the measures of government must be injuriously suspended, or fatally defeated. It is often, by the impracticability of obtaining the concurrence of the necessary number of votes, kept in a state of inaction. Its situation must always savor of weakness, sometimes border upon anarchy."
The authors of the Constitution demonstrated their belief in majority rule by expressly enumerating all the instances in which more than a majority vote was to be required. These exceptional cases were limited to five. There are twothirds requirements in connection with (1) the impeachment power, (2) the expulsion of Members of Congress, (3) the power of Congress to override the veto, (4) senatorial ratification of treaties, and (5) the initiation by Congress of proposals to amend the Constitution. In these rare instances, where it was deemed necessary to make exceptions to majority rule, the Constitution expressly said so (art. I, sec. 3; art I, sec. 5; art I, sec 7; art II, sec. 2; art V).
This detailed specification of the two-thirds requirement in connection with particular powers demonstrates that, when Congress was to operate other than
by majority rule, it was so informed by definite language in the Constitution. When a document, as carefully drafted and considered as was the Constitution, enumerates particular exceptions to a general rule, it must be concluded that no other exceptions were intended to be made. As the Supreme Court said in Addison v. Holly Hill Co., (322 U. S. 607 at 617): "Exemptions made in such detail preclude their enlargement by implication.” Rule XXII, by permitting a small minority to block action by the majority, nullifies this careful structure created by the Constitution.
The Founding Fathers gave further evidence of their intent that majority rule should govern in all except the five specified instances by the great care with which they limited the two-thirds requirement. At least two separate instances are recorded in which the Convention rejected efforts to impose a twothirds requirement on legislation:
(1) On August 29, a motion to limit the national power over interstate and foreign commerce by a two-thirds provision was made and rejected. Mr. Sherman, in arguing against the motion, stated that “to require more than a majority to decide a question was always embarrassing, as had been experienced in cases requiring the votes of 9 States in Congress” (referring to the Congress under the Articles of Confederation).
(2) On September 15, in the busy closing days of the Convention, another attempt to fetter Congress' control over navigation by a two-thirds limitation was unsuccessful (Farrand, Records of the Federal Convention of 1787).
In addition to the rejected attempts that were made to limit the majority principle in connection with substantive powers, the motion in the Constitutional Convention to raise the quorum provision (art. I, sec. 5) from a majority to two-thirds was overwhelmingly put down. Some members of the Convention even feared that a majority was too large a number. George Morris pointed out that "the secession of a small number" might "in the national councils * * * be fatal," and this fear of his was concurred in by a number of others who spoke on the subject (Prescott, Drafting the Federal Constitution, p. 425 et seq.).
Accordingly, the Congress was given power to compel the attendance of absent members so that a majority could be gathered together and the business of the Congress dispatched.
Actually, of course, all this evidence of the intention of the founders of our Government concerning majority rule is simply further proof of something we all knew anyway. In a very real sense, the essence of democracy is majority rule with guaranties for individual rights. No Government worthy of being called a democracy can be predicated on any principle other than majority rule.
Equally clearly, rule XXII prevents the operation of majority rule. Indeed, I do not believe that those who support rule XXII today really challenge this fact. Rule XXII, by giving a minority of Senators the power to prevent action by the majority, negates the very principle of majority rule upon which our constitutional democratic government is based.
There is no issue here of full and fair debate. Everybody in the United States other than a few would-be Communist dictators and a few right-wing totalitarians favors full and fair debate on all issues. We would oppose most strongly giving the majority the right to cut off debate before the issues have been fully explored. We would favor 2 weeks of debate before any action could be taken by the majority to cut off debate. But some time there must be a right to vote. Certainly the right to vote in the Senate ought to have as much dignity as the right to talk.
Actually, the Senate can get its debating done quite quickly when it is so inclined. On January 3, 1957, Senator Anderson made a motion to take up the rules of the Senate of the 85th Congress. The majority and minority leaders of the Senate obtained a unanimous-consent agreement allowing only 6 hours of debate before the vote on the Anderson motion. As the result of the action of the leadership, concurred in by the Senate, the issue of majority-versusminority rule in the Senate of the United States and the fundamental nature of the Senate as a continuous or discontinuous body was debated in 6 hours and a vote taken. If such basic questions could be adequately debated in 6 hours or so the majority and minority leaders seemed to feel-certainly other issues could be fully debated in 6 days or at least 6 weeks. Yet the supporters of rule XXII want to keep the present rule in effect whereby 6 weeks, or even 6 months, of debate is not enough. Debate must go on until those in the majority finally give up and their proposals are defeated by inaction.
But rule XXII does not just defeat a few civil rights bills opposed by a few southern Senators; it affects the entire operations of the Senate. I cannot put
this proposition better than to quote the language of Senator Anderson of New Mexico, who has twice now led the fight for a better rule XXII at the opening of the 83d and 85th Congresses. On January 18, 1954, Senator Anderson stated :
"I am not suggesting that the filibuster is the regular order of the day on this floor. * * * It does not have to be. * * * However infrequently the hammer on the filibuster gun is drawn back and cocked, this veto power of the minority over the will of the majority is, as all of us well know, a factor never overlooked in legislative drafting, appropriations, strategy, and tactics in the Senate of the United States. * * * It affects and conditions every piece of legislation from the time it is a twinkle in the eye of its parent through every stage of gestation and birth.”
The result is that, except for great dramatic national crises, such as the bank closings of 1933, the Nazi conquest of France in May 1940, the attack on Pearl Harbor, December 7, 1941, and the Communist attack on North Korea, June 24, 1950, the Senate and therefore the Congress of which it is an equal part are too often too late with too little to meet the rapidly developing problems, needs and opportunities of an age of atomic energy, automation, and a Communist expansionism that is bent upon and has repeatedly announced its intent to take over the entire world.
We can ill afford continued minority rule. National welfare, strength, security, and survival require the establishment of majority rule.
In the past 6 years since a subcommittee of the Senate Rules Committee conducted extensive hearings on rule XXII-in the course of which the present rule XXII was first denounced as unconstitutional-great progress has been made. The American people have a better understanding of the fact that, at the very core and heart of our Federal Government, majority rule is denied, frustrated, blocked and defeated by entrenched minority rule.
Much too much has been said and much too little has been done about changing rule XXII. The arguments for majority rule are clear; that rule XXII prevents majority rule is equally clear. The only real question is: What is going to be done about rule XXII?
II Although action by the Senate of the 85th Congress to make any substantial improvement in rule XXII is likely to be blocked by the veto power of a filibustering minority, we nevertheless urge that a test be made to determine whether rule XXII can be changed for the better during the life of a Congress.
We support Senate Resolution 17, introduced by Senators Douglas, Ives, and 12 others, which offers a close approach to majority rule by providing that filibusters may be broken after 15 calendar days by vote of a majority of the Senators "duly chosen and sworn."
Senate Resolution 17 also repeals the unconstitutional section 3 of the present rule XXII which attempts to fasten rule XXII upon the Senate to the end of time. That section attempted to legislate for eternity by providing that there shall be no limitation of debate on a motion to proceed to the consideration of a change in rule XXII or any other rule of the Senate.
We oppose Senate Resolution 30, sponsored by the majority and minority leaders, for two reasons:
1. Its proposed lowering of the hurdle from 64 to two-thirds of those present and voting will amount to little or no reduction in the number of Senators who must be present and voting for cloture in order to break filibusters against such highly charged issues as the minimum civil-rights bill scheduled for floor debate the week of July 8, 1957.
The total vote last January 4 on the Anderson motion to adopt Senate rules (that is, to change rule XXII) was 93—38 for, 55 against. Two-thirds of 93 is 62. The same attendance for a rollcall on a motion to limit debate on a cirilrights bill would mean that 62 Senators would have to vote for cloture in order to break a filibuster. The strain and sweat of the fight to change rule XXII should yield better results than an uncertain gain of 2 votes that, with attendance of all 96 Senators, would shrink to no gain at all.
2. Section 3 of Senate Resolution 30, intentionally or otherwise, would, if adopted, put the Senate on record in an attempt to cancel Vice President Nixon's opinion, given to the Senate January 4, 1957, that section 3 of the present rule XXII is unconstitutional.
In saying that old rules shall continue until new rules are adopted, Senate Resolution 30's section 3 attempts to deprive the Senate of each new Congress. including the newly elected or reelected Senators, of their constitutional right to make rules for the conduct of the Senate's business.