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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.
In our opinion, section 3 of Senate Resolution 30 is unconstitutoinal for the same reason that section 3 of rule XXII is unconstitutional, namely, because it attempts to subject the Senate of the present and all future Congresses to rule by the dead hand of the Senate of the 81st Congress, as it operated in adopting the Wherry-Hayden rule XXII on March 17, 1949. Ironically, the majority in the vote of 63 to 23 to adopt rule XXII was 1 vote less than the hurdle of 64 votes which it attempted to erect for all time to come.
But whatever happens in the 85th Congress, the fight will go on until actual majority rule is obtained. We were most encouraged by what happened at the opening of this Congress. Forty-one Senators are now on record in support of the proposition that the Senate of each new Congress has the right on opening day to take up its own rules and determine them for itself unfettered by the action of the Senate of previous Congresses. This compares with only 21 Senators who took this same position 4 years earlier. Furthermore, we now have the explicit ruling of Vice President Nixon, consistent with the earlier implicit position of Vice President Barkley, upholding “the right of a current majority of the Senate at the beginning of a new Congress to adopt its own rules.” We are confident that, at the opening of the 86th Congress in 1959, there will be a majority for this proposition and the principle will be established once and for all that the Senate of each succeeding Congress can and must adopt its own rules as does the House of Representatives. It will only take a switch of 7 votes to accomplish this result, much less than the switch between 1953 and 1957. With the Vice President supporting this position and with the increasing public awareness of the damaging effects of the filibuster, we believe this fight can and will be won in 1959. If it is not won in 1959, it will be won in 1961 or 1963 or however long it takes. The continuing fight for majority rule is one that can end only in success.
While these hearings are on the procedural matter of Senate rules, it is obviously unrealistic and impossible to confine them to the vacuum of procedure. We cannot exclude the great human reason for replacing the present veto power of a filibustering minority with majority rule.
Reality was let into the hearings early when witnesses opposed to any change in rule XXII announced in the same breath their opposition to civil-rights legislation. This was the position taken quite honestly and candidly by, for example, Mr. Tyre Taylor, general counsel of the Southern States Industrial Council.
I understand that witnesses have been asked to give the name of any Negro who has been denied a job because of his race or color. I hope that members of the committee will assemble the easily available factual information showing that every day millions of Negroes and members of other minority groups are discriminated against in employment opportunities and in upgrading and promotion because of their race, religion, color, national origin or ancestry.
Apparently it is again necessary to document the obvious, the daily tragedy and shame of our Nation that in the eyes of the world mock our preachments about democracy and human brotherhood and the dignity of man. I would refer those who seek such documentation to the Federal Commitee on Contract Compliance, of which Vice President Nixon is chairman, and which can produce facts, places, and dates about such discrimination.
Let them read the hearings of the Commitee on Constitutional Rights of the Senate Judiciary Committee, held earlier this year, the House Judiciary Commitee hearings of this year and of July 1955, and repeated hearings by the Senate Labor and Public Welfare Committee on the Humphrey-Ives bill for an effective Federal FEPC, going back to 1947.
Let them give particular attention to a 1952 Senate Labor and Public Welfare Committee Report on Employment and Economic Status of Negroes in the United States showing that nonwhite workers' family income averaged approximately half of that of white workers' families and that, because they are paid less, eat less, wear less and pay more for worse housing than white workers; nonwhite workers at age 20 can expect to die several years earlier than white workers. It would be interesting to have the Bureau of Labor Statistics bring its 1950 tables on working life up to date. We urge the committee to obtain these figures.
It is a notorious fact, which is becoming better known to the American people day by day, that we are not governed by majority rule but by minority rule;
that the lever of power used for minority rule is the filibuster; that the filibuster is legalized in the Senate of succeeding Congresses by acquiscence in the unconstitutional rule XXII; that rule XXII is, in New York Times Commentator Arthur Krock's accurate phrase, the gravedigger in the Senate which is the graveyard of civil-rights pledges and civil-rights legislation.
It is inevitable that the foolhardy attempt of March 17, 1949, to "nail the Senate's feet to the floor for a thousand years" is going to be undone and corrected sooner or later—and not much later. We have 7 Senate votes to go; 7 Senators must be persuaded or elected to support the ending of rule by fili. buster and to vote for the substitution of majority rule.
We urge your committee and the liberals in both parties to do their utmost to hasten the day when the Senate can adopt its own “Emancipation Proclamation" in the form of a new rule XXII that will permit the limitation of debate by the vote of a majority of those present and voting after a quorum call.
Mr. REUTHER. I appear here this morning in support of the establishment of majority rule in the proceedings of the United States Senate. We believe that the abolition of rule XXII is the most essential single step that the United States Senate should take in order to establish majority rule in its deliberations and in order to remove the more serious legislative roadblock that we think is impeding the passage of essential legislation as it relates to the achievements of the great promise and the great potential that American democracy offers.
We believe that the record of the United States Senate will show conclusively that rule XXII, which enables a minority to block the will of the majority, does represent the most serious threat to the proper functioning of the democratic process in the United States Senate.
We believe that a change is long overdue and that the Senate ought to take action at the earliest possible date to replace minority rule by procedures that will establish majority rule.
Now, the Automobile Workers Union has been concerned about this matter for some time. In 1951 I had the privilege of appearing before a subcommittee of the United States Senate, at which time these same questions were under discussion. Our union at that time filed a very comprehensive brief with the Senate subcommittee in which we dealt with the broad constitutional aspects of rule XXII.
We helped finance a very careful research into the constitutional background—what the Founding Fathers had in mind when they wrote the Constitution. There is no question about it that that research has demonstrated very conclusively that the Founding Fathers intended that the United States Senate would base its operation upon the principle of majority rule.
In that brief we showed that it was the intent of the Founding Fathers that when the United States Senate of each Congress convened and organized itself following each national election, a majority of Senators under the Constitution had the power and the authority and the responsibility for the establishment of the rules of procedure that would govern that session of the Senate. We showed that the concept of the Senate as a continuing body and the notion that an earlier Senate automatically binds future Senates do not reflect the intent of the people who wrote the Constitution.
Now, we have been given credit for having come up with this idea, but I would like to state, that while we did help, I think, refine this idea, we did not originate it. This idea that 49 Senators or a majority had the power at the beginning of each new session of the Senate to