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Are there any other Senators present? Senator Robertson is here to introduce the Honorable John J. Wicker, Jr., who is representing Dan Daniel, the national commander of the American Legion. I am taking Mr. Wicker out of order because this is the second time he has appeared with this testimony and he has to catch a train.

Senator JAVITS. Senator Wicker, Senator Talmadge has been so gracious to witnesses for the side that I believe in, that I would like to welcome you myself and thank you very much for appearing.

Senator TALMADGE. Senator Robertson?

STATEMENT OF JOHN J. WICKER, JR., ATTORNEY AT LAW,

REPRESENTING W. C. “DAN” DANIEL, NATIONAL COMMANDER OF THE AMERICAN LEGION (INTRODUCED BY HON. A. WILLIS ROBERTSON, A UNITED STATES SENATOR FROM THE STATE OF VIRGINIA)

Senator ROBERTSON. Mr. Chairman and gentlemen of the committee, I have been attending this morning a meeting of the Senate Appropriations Committee engaged in marking up the Defense bill which, as you know, is about one-half of the budget.

I appreciate this opportunity to appear before this committee to present an able and highly esteemed friend from Virginia.

Last year, when the Senate Judiciary Committee was conducting hearings on the so-called civil-rights bill, I introduced as a witness the same gentleman who is with me today. I have known him for many years; first, as an outstanding lawyer, as a member of the State Senate of Virgina, and as one of the founders of the American Legion, and a former Virginia State commander of that organization.

He is a former chairman of the judiciary committee of the Virginia Bar Association and a present member of the executive council of the insurance law section of the American Bar Association.

He was president of the electoral college of Virginia in 1944 and chairman for the first half of the 1945 Constitutional Convention of Virginia. He has served on several State commissions and boards.

Most important, for our present purpose, however, he is an astute student of the law and a dedicated believer in the principles of constitutional liberty and in the institutions, including the Senate of the United States, which are designed to preserve that liberty.

Last year he gave a convincing and scholarly argument against proposed legislation which he and I both felt would constitute a threat to constitutional liberty. Today I am sure he will be equally skillful in presenting his views on why it would be dangerous and undesirable to change the rules of the Senate in a way which might remove some of the protections of minority rights which were deliberately provided by the Founding Fathers or prevent the full discussion of constitutional issues which is necessary for the preservation of the spirit as well as the letter of that great document.

It is a pleasure for me to present to this committee the Honorable John J. Wicker, Jr., of Richmond, Va.

Senator TALMADGE. Thank you very much.

Mr. WICKER. Senator Robertson, I appreciate your kindness in coming here today, and I am grateful for your generous and gracious introduction.

It is indeed a pleasure, Mr. Chairman and members of the subcommittee, to be here.

My name is John J. Wicker, Jr. I am an attorney at law and for many years I have been a member of the bar of the Supreme Court of Appeals of Virginia, of the Federal Court in Virginia, and of the Supreme Court of the United States. I reside, as I have for most of my life, in Richmond, Va. I am also a former Virginia State senator and I was temporary chairman of the 1945 Constitutional Convention of Virginia.

I mentioned my service in the State senate. My good friend, Senator Byrd, sometimes introduces me to somebody up here as "Senator" Wicker and the person will say, "Oh, you have a new colleague up here.” Then Senator Byrd will say, “No, he is an alumnus of a much more exclusive body-the Senate of Virginia—which is limited to 40 members."

I am appearing before you at the request of W.C.“Dan” Daniel, the national commander of the American Legion and upon his authority, to express the views of the national commander, with which views I am in full accord

Senator JAVITS. Is the national commander from Virginia, too?

Mr. WICKER. Yes, sir, from Danville, Va.--literally born in a log cabin, by the way. As a youngster he had to quit school and go to work. He took a job at $2.50 a week, 11 miles away, and he walked barefoot to the Dan River Cotton Mills, sweeping up lint, and he is now personnel manager of that mill, the largest single-unit textile mill in the world. .

Senator Javits. My father was a great economic success, too. The most he ever earned a month was $45.

Mr. WICKER. I am speaking to you concerning a number of resolutions pending before you to amend and modify rule XXII of the Standing Rules of the Senate, relating to cloture.

The national commander was invited to appear before you by the distinguished Senator from Georgia, Senator Herman E. Talmadge, and being unable to appear in person because of previous engagements, he has requested and authorized me to appear in his stead.

GENERAL PURPOSE AND EFFECT OF PENDING RESOLUTIONS

While the several resolutions pending before you with regard to cloture have some differences in language and in detail, they all appear to have the same general intent and purpose and would probably have the same general effect; namely, to make it possible for less than twothirds of the duly elected Members of the Senate to shut off debate and to deprive more than one-third of the duly elected Senators to their right to unlimited debate.

PENDING RESOLUTIONS WOULD PERMIT 49 SENATORS TO INFLUENCE 41

SENATORS

As the rule now stands, the views and voices of United States Senators upon pending legislation can be shut off by the concurring vote of 64 out of the 96 elected Senators. Under these pending resolutions, cloture could be applied and debate terminated at any time, by the concurrence of only two-thirds of these Senators actually voting

on the resolution of cloture, provided that they constituted at least a bare majority of the total membership.

Thus, the sentiments and opinions and judgments of a large number of duly elected United States Senators--voicing and reflecting the sentiments and opinions and judgments of the citizens of their respective States-could be stifled and silenced by the active concurrence of a bare elected majority. And this would be true regardless of how fundamentally important the issue might be.

While the rule now requires 64 affirmative votes to apply cloture, the pending resolutions would reduce that required number by 15that is a reduction of almost one-fourth-so that the required minimum would be only 49 Senators, provided not more than 24 other Senators actually voted the other way. Forty-seven Senators might be conceivably opposed to the pending legislation and/or opposed to cloture; but unless at least 25 of them were actually present and voting, their opposition would be ignored and count for nought.

SENATE AND HOUSE ARE COORDINATE AND OF EQUAL DIGNITY BUT FUNDA

MENTALLY DIFFERENT Our Founding Fathers very wisely provided for two distinct bodies in the Federal legislative branch. The House of Representatives, chosen on a population basis and constituting a large representative body, is fresh from the people as a result of elections every other year. The Senate, being a smaller and consequently much more deliberative body, with each State being represented by two Senators regardless of wide variations in population and area, has its membership elected for 6-year terms with only one-third of the body being elected every 2 years.

Anyone making even a cursory study of the fundamental principles and aims and purposes which the framers of the Federal Constitution had in mind in providing for these two bodies—so vastly different in their size and basis of representation and terms of office and times of election--will recognize that, while the powers of the two Houses are coordinate, their methods of operation would, in many particulars, be vitally and fundamentally different.

LIMITATION OF DEBATE APPROPRIATE AND NECESSARY IN HOUSE BUT NOT

IN SENATE Obviously, anything like unlimited debate in any legislative body as large as the House of Representatives (numbering 435 Congressmen) would be completely out of the question. Consequently, limitation of debate in the House of Representatives is not only traditional and historical, but is also absolutely necessary in order to permit the House to operate.

By sharp contrast, however, the Senate, with a total membership of 96—substantially less than one-fourth of the number of the House can operate efficiently and effectively without limitation of debate. In fact, the Senate has actually done so throughout its existence.

ANYTHING IMPORTANT ENOUGH TO JUSTIFY CLOTURE WILL HAVE ACTIVE

SUPPORT OF AT LEAST 64 SENATORS

Anything so serious and so dangerous to our American form of government—as shutting off debate and stifling free expression and argument by United States Senators-should never be sanctioned without the affirmative concurrence of at least two-thirds of the membership of the Senate. If any real emergency arises that requires and justifies a limitation of debate, surely the emergency would be recognized and acted upon by at least two-thirds of the Senators.

May I interpolate there to say the history of the Senate is replete with occasions when there have been matters of imminent importance—war declarations, embargoes, and things of that type that have required prompt and immediate action, and although sentiment was not unanimous in the Senate, nevertheless there was no difficulty in obtaining a prompt vote on those matters.

Senator Javits. Senator, would you yield a second at that point. You will, however, grant to those of us who feel that civil rights bills are a matter of urgency the sincerity and conviction of our views. You assume in what you said that a civil rights bill is not an imminent and urgent matter. Some of us, including myself, believe that it is.

Mr. WICKER. That is right, yes. Of course, there are exceptions on all sides of every question. I know of you and your views and I know of many other Senators whose views are in sharp contrast with mine. But I am confident they are just as sincere and honest in their convictions and purpose as I am in mine. I am confident of that; yes, sir.

However, on the matter of the urgency, and pending so-called civilrights legislation, I don't agree at all that there is anything that would put that in a comparable

class with immediate national peril that might be brought about, as in the past, by sudden attacks or by sudden chaos all over the country in the way of weather or flood disasters and things like that when you need immediate action.

I think the difference of opinion over so-called civil rights is perhaps a sociological matter.

Senator JAVITTS. It is a fact that there have been outbreaks of violence on this issue in part of the South as recently as the school segregation cases. That is all I refer to, and I respect greatly the sincerity of your views, sir, and the views of the national commander. I just wanted to have it clear that by silence we didn't agree that that was the only thing that is urgent.

Senator TALMADGE. If you will yield at that point. I hate to divert the record, but inasmuch as you have brought out the outbreaks of violence in the South, there also have been outbreaks in the North, in New York State.

Senator Javits. I don't now know of any outbreaks of violence in New York State of recent origin. But I do know a State in the North analogous to New York-Illinois.

Senator TALMADGE. I seem to recall some sort of boat excursion up the river from Buffalo on which there was quite an affray-in fact the police called it a riot.

Senator Javits. I think what I had in mind–however, I accept what the Senator has said—is what are called race situations of more major scale.

Mr. WICKER. Yes. There have undoubtedly been outbreaks of violence not only in the South but in the West and some parts of the North on these racial matters, and those outbreaks have taken place in the past. But I would like to express the opinion and conviction that if the pending "civil rights” legislation is enacted, you will have far more outbreaks than you ever had before. Don't ever get the idea that by passing so-called civil rights legislation nationally you are going to decrease the liability of racial conflict and racial outbreaks in the North and South.

Wherever you find that a large number of the two races, the Negro race and the white race, getting together, the frictions are bound to occur. You have them right here in Washington. I read in an Associated Press dispatch this morning where Washington's newest public school, the Shadduck school, right here in Washington, D. C., is being almost completely destroyed by vandalism. That has been integrated recently.

That is because of the natural conflicts that occur.

Senator JAVITS. As Senator Talmadge said to Mr. Reuther, this is something I could talk on for a couple of hours.

Mr. WICKER. That is right.

And any proposition of that kind which cannot secure the active voting support of at least two-thirds of the duly elected Senators does not deserve to be adopted.

With only 2 Senators elected by any 1 State to represent that State and its people, it would be unreasonable to silence those Senators from expressing their views fully—especially on measures which they believe may involve a violation of fundamental constitutional rightsunless at least two-thirds of the membership of the Senate affirmatively vote to close debate.

Any attempt to shut off debate which cannot command the affirmative voting support of at least 64 out of the 96 elected Senators must have inherent in it such weakness and such objection that it deserves to fail.

MINORITY OF SENATORS, OBSTRUCTING WILL OF MAJORITY, IS SOMETIMES

BEST FOR PUBLIC WELFARE

It is claimed that rule XXII permits a minority to obstruct the will of the majority. If that be true, it is not necessarily a damning indictment because our history shows many instances in which a bare majority, if unfettered and uncontrolled, would have done willful violence to the legitimate rights of minorities.

To enable cloture to be applied upon the concurring vote of less than two-thirds of the elected Senators would undoubtedly result in the hasty enactment of some legislation which would otherwise be defeated if debate were sufficiently prolonged to enable the American public to become fully informed as to the merits or demerits of the proposed legislation and to transmit their sentiments to their representatives in the Senate. In the very nature of things there is not as much opportunity for this formulation of informed and considered public opinion in connection with the passage of legislation in the House of Representatives, but this opportunity should by all means be preserved in the Senate.

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