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STATEMENT OF HON. ESTES KEFAUVER, A UNITED STATES
SENATOR FROM THE STATE OF TENNESSEE
Senator KEFAUVER. Thank you very much, Mr. Chairman, and Senator Javits.
The problem with which this committee is concerned is an old one. As early as 1845, Daniel Webster attempted to remove one of my predecessors, Senator Hopkins L. Turney, of Tennessee, from the floor for “irrelevancy in debate." Daniel Webster's move failed.
Nevetheless, it is one which the Senate should face and solve and I am glad the committee is taking testimony and looking toward a solution.
In any organization, public or private, the purpose of rules is to facilitate the transaction of business. It is thus à paradox that in the Senate of the United States, business may not be transacted and lawmaking may be thwarted by the parliamentary device known as the filibuster.
It is a device which denies two premises of the democratic process: the ability to persuade by rational argument; and the ability of the majority to express its will
How did this situation come about? Senator Arthur Vandenberg expressed the answer in these terms in 1948 as President pro tempore of the Senate:
In the final analysis, the Senate has no effective cloture rule at all—a small but determined minority can always prevent cloture, under the existing rules. A very few Senators have it in their power to prevent Senate action on anything-the existing Senate rules regarding cloture do not provide conclusive cloture. They still leave the Senate, rightly or wrongly, at the mercy of unlimited debate ad infinitum.
Senator George Norris, who was in charge of the famous filibuster on the armed ship bill of 1917, long afterward set down his final reflections as follows:
Filibustering is made possible under the rules of the Senate and not under any law. It could be prevented largely by a simple rule; but the jealous pride with which the Senate guards its tradition of open, unlimited debate makes the adoption of the rule difficult, if not impossible; and this, to many Senators, a sacred right, often put the Senate in a very ridiculous and sometimes, I think, unpatriotic position. * * *
Thirty-five years' experience with rule XXII led former Senator Hendrickson of New Jersey to conclude:
The lesson of history has been that the present rule, whieh requires the votes of two-thirds of the entire Senate to close debate, is the least effective of all the methods under consideration. It has not been successful once since its adoption in 1949; it would have failed in 16 out of 19 times, if it had been the rule from the beginning.
Most of the States whose Senators have opposed effective limitation of debate in the United States Senate have rules limiting debate in their own upper chambers. According to an authoritative study, 45 out of 48 States, through parliamentary devices, forbid filibustering in their upper chambers.
The case against the filibuster in the United States Senate may be summed up as follows:
1. The basic American principle of majority rule is ignored. Not only is the majority thwarted in its purpose to enact public measures,
but it is also coerced into acceptance of measures for which it has no independent desire. President Wilson took bitter note of this fact when he said:
The Senate of the United States is the only legislative body in the world which cannot act when its majority is ready for action.
2. Filibustering puts into the hands of one Senator or a group of Senators something akin to the veto power often employed by the Soviet Union in the United Nations.
3. Filibusters are expensive in terms of money as well as time. Twelve of the most famous filibusters of the past occupied, on the average, 30 days of the Senate's time. To run the United States Senate, it now costs more than $1 million a month.
4. Filibusters deprive the Senate of its power to legislate, a power conferred upon the two Houses of Congress by article I, section 1 of the Constitution. The right to vote is an essential prerequisite to the exercise of the power to legislate, since neither House can pass a measure without voting. A prolonged filibuster, by preventing the Senate from expressing its will on a subject, erects a barrier against the performance by the Senate of its constitutional right and power to legislate.
5. Filibusters are a travesty on freedom of debate in this body. It is one thing to ventilate thoroughly a controversial measure. It is quite another to talk on and on solely for the sake of preventing action. To paraphrase President Wilson once more:
A little group of wilful men, representing no opinion but their own, (may render) the great Government of the United States helpless and contempti. ble * * * The only remedy is that the rules of the Senate shall be so altered that it can act.
At various times in our history national party platforms have favored such alteration of the rules of procedure of the Senate as would permit the prompt transaction of the Nation's legislative business. The latest expression of this support was repeated in the Democratic Party platform, adopted August 15, 1956, in Chicago. This plank reads, and I know it has been referred to frequently here:
In order that the will of the American people may be expressed upon all legislative proposals, we urge that action be taken at the beginning of the 85th Congress to improve congressional procedures so that majority rule prevails and decisions can be made after reasonable debate without being blocked by a minority in either House.
As a special Senate subcommittee constituted to probe just this very problem, I believe you are uniquely qualified to provide possible answers in a detached and undisturbed atmosphere.
No suggestion, however meritorious, would be acceptable to the Senate if it cuts off the right of any Senator to express his opinion fully upon every measure to be voted upon, or any amendments that might be presented. Any change of the rules governing procedure must be weighed against this consideration. Yet an effective antifilibuster rule must be adopted because it is the imperative duty of a legislature not merely to debate, but to legislate and, therefore, to tolerate no course of action by any of its members which will prevent legislation. The majority of the Senate is rightfully responsible for the conduct of its own affairs and is therefore entitled to use all means necessary to that end.
The present rule is totally unfair. Since 64 affirmative votes are required absence from the Senate because of death, sickness or other reason puts an intolerable obstacle in the path of decision.
Right now we have a vacancy in the United States Senate that requires two affirmative votes to make up for that vacancy. We know also that some Members are ill, other Members are always necessarily away on official business—but their votes are counted actually as votes against cutting off debate, thus requiring two votes each to overcome.
I therefore propose, Mr. Chairman, that rule XXII of the Standing Rules of the Senate be amended to provide that debate may be brought to a close by two-thirds of the Senators present and voting on any pending business, rather than the present constitutional two-thirds.
In other words, I am here to support Senate Resolution 30.
Some of the other proposals are intriguing, and I have in times past sponsored such proposals, some of which are now pending, such as that which would require a two-thirds vote up to a certain time and thereafter a simple majority to close debate.
Under other conditions I might be inclined to approve of such a proposal. But the two-thirds proposal is the one which has been agreed upon by the majority and minority leaders and by a number of other leaders, and I think we should take this approach which has such a substantial agreement rather than divide our forces among alternative proposals.
In this manner, ample opportunity to debate is preserved. The merits of the measure under debate may receive full and free airing. It assures that sufficient time to acquaint the people of the country will be allowed before a vote is taken so that the public may be thoroughly informed of the issues involved.
The almost insurmountable difficulties inherent in obtaining a constitutional two-thirds majority may be circumvented, and yet it would take more than a simple majority to limit discussion. The minority therefore would be protected.
I am certain that with the additional present safeguards of close committee study before action, and both judicial and executive review following passage, the Senate may reach an equitable compromise in its aim to guard the rights of the minority and yet protect the will of the majority.
Mr. Chairman, in closing let me say that filibusters are usually thought of in connection with civil rights legislation; some people think of them exclusively in connection with civil rights legislation.
We are told that we face one after the July 4 recess on President Eisenhower's civil rights bill. Of course, I know that it is unlikely that this rule may be changed so as to have an effect on any debate that will occur on the present civil rights bill. Now, however, filibusters are by no means limited to that subject. We know that the League of Nations was filibustered; the longest filibuster in history was over a rivers and harbors bill. I have already mentioned the famous filibuster over the armed ship bill of 1917.
In the present hydrogen age, the Senate cannot longer afford the luxury of a procedure that could render it powerless at a crucial period of history.
I thank the members of the committee for giving me the privilege of coming here.
Senator Javits. Senator Kefauver, I thank you very much for that most illuminating statement, and I wonder whether in your support of Senate Resolution 30, you also include item 2 of section 3 which deals with the rules of the Senate continuing.
Senator KEFAUVER. Yes, I do.
Senator TALMADGE. Senator Kefauver, thank you for your very fine statement. I appreciate your appearing.
The next witness is Mrs. Dorothy Frankston of Wheeling, W. Va. You may proceed at will.
STATEMENT OF MRS. W. J. FRANKSTON, WHEELING, W. VA.
Mrs. FRANKSTON. I am one of those strange persons who represents myself, Senator, as an individual, and I appreciate your recognition.
Senator TALMADGE. We have been seeking to get grassroots opinion on this vital question.
Mrs. FRANKSTON. I am opposed to the abolition of rule XXII, Senator Talmadge, and these are my reasons.
The issues involved in unlimited debate in the Senate have been argued and discussed at various times over a period of many years, and I do not presume to come before you today with any new arguments. However, as an American citizen, and one who believes in and cherishes those fundamental freedoms guaranteed in the Constitution of the United States, I welcome this opportunity to appear before you at this time.
Although there appear to be many reasons for changing rule XXII which would place a limitation on debate in the Senate, a thorough perusal of these arguments produce as many and more reasons why debate should remain unlimited.
One of the major arguments presented in favor of limiting debate is that the principle of majority rule is set at naught, and that the will of the majority of the people of the United States is being thwarted. While it must be admitted that a minority in the Senate can under the present rule obstruct passage of legislation, it must also be conceded that the very purpose of rules in any deliberative body is to protect the minority from the potential tyranny of the majority (Senator William E. Jenner). Furthermore to say that the will of the majority of the American people is being thwarted is a very broad statement indeed. The will of the people cannot be accurately gaged by highly organized pressure groups and lobbyists working for passage of certain legislation.
Those clamoring for limitation of debate advance the reasoning that prolonged debate-such as filibustering results in slowing down the passage of legislation, often killing important legislation altogether. They would also have us believe that filibustering is inherently evil and should therefore be eliminated. Again, it must be granted that legislation has been killed by the use of the filibuster, but it does not necessarily follow that filibustering is wrong. But even if we were to concede for the sake of argument that filibustering is evil-it still does not logically follow that we must then limit debate. Our democratic processes, too, are often criticized for being cumbersome and slow-and often inefficient, and rightly so, but because these evils exist must we and should we then change our form of government? Some form of dictatorship would be more efficient and certainly less cumbersome, and can act with utmost speed. But are these things worth the loss of liberty? The evil which would result would be far worse than the existing evils.
It is unfortunate that civil rights legislation is being made an issue in the discussion of free debate. The individual citizen is led to believe that this is the main issue, and that the rules must be changed in order to get such legislation passed. Such arguments only serve to cloud the real issues and to play on the emotions of the people. It should be obvious that much more is at stake than the passage of one piece of legislation. The Senate has a duty to inform as well as enact laws. Prolonged debate gives the people an opportunity to make their views known. It has also been said that unlimited debate discourages changes, and sometimes changes which might be desirable. This takes us back to our original premise—being, that while evils do naturally exist in this freedom of debate the good which results from such freedom far outweighs the bad. Rarely can it be said that bad legislation has been passed after prolonged debate, and the chance for all sides to be heard.
Finally, there is the accusation that the undemocratic conditions which exist in our country today exist because of the threat or use of the filibuster and that many people are losing faith in American democracy because of these prolonged failures to pass certain social legislation. My answer to the first part of this accusation is that vndemocratic conditions will always exist as long as human beings are what they are-sinful. This does not mean that we should not work to eliminate such conditions, and to help all our people to achieve personal success and happiness.
But the mere passage of laws is not an automatic guaranty of the elimination of undemocratic conditions. In answer to the second part, I find it difficult indeed to believe that many people are losing faith in our way of life because of our failure to pass such legislation. We do not seem to be suffering from any mass emigration. On the contrary, more and more people are clamoring for entrance to our shores. I believe that even those who would benefit most from such legislation would be the first to admit that in no other place in the world has the individual a better chance for pursuing that kind of life which he desires most. A free society such as ours by its very nature produces those things which are undesirable, and free debate in the Senate by its very nature produces those things which are undesirable. Freedom in anything is always abused, but should we then restrict such things as freedom of speech, of worship, and so forth? It seems to me that we must in both cases choose the greater good for the preservation of those personal freedoms provided for in the Constitution of our United States. Thank you.
Senator TALMADGE. Any questions?
Senator TALMADGE. Thank you very much for your very fine statement, Mrs. Frankston.
The next witness is Mr. Irving Brant of Washington.