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I would like to ask at this point whether it would be of any advantage to you if I included in my statement a quotation from that memorandum stating what the circumstances were.
Senator TALMADGE. If you desire to do that, permission is granted. Mr. BRANT. I think, then, that I will do it but I haven't it with me.
Senator TALMADGE. If you will just give it to the counsel for the subcommittee, Mr. Langdon West.
(The material referred to is as follows:)
EXCERPT FROM MEMORANDUM ON THE DEVELOPMENT OF CLOTURE AND THE PREVIOUS QUESTION IN AMERICAN AND BRITISH PRACTICE, BY IRVING BRANT
[From the Congressional Record of May 9, 1957, p. 5963)
"PREVIOUS QUESTION” IN IMPEACHMENT TRIAL The last senatorial motion for the previous question was made on March 10, 1804, when the Senate was sitting as a court in the impeachment of Judge John Pickering. Climaxing a 3-day debate behind closed doors, Senator White, of Delaware, offered a resolution-regarded by the majority as an accusation of ex parte prosecution—"That this court is not at present prepared to give their final decision" upon the articles of impeachment. The reason: no inquiry had been made into the suggestion that the judge had failed to appear because he "was and yet is insane." The official record recounts a series of objections and out-oforder motions leading up to the following:
"Mr. Nicholas hoped it would not be permitted to go upon the journals of the court.
"Mr. Jackson moved the previous question, viz: 'Shall the main question be now put?'"
Senator White wanted the yeas and nays on whatever was done to dispose of his resolution. Then :
"On motion of Mr. Dayton, the galleries were cleared and the doors closed.
"At 3 o'clock the doors were opened, and the question was taken upon the resolution as at first submitted, yeas 9, nays 19" (Annals of Congress, Eighth Cong., first sess., pp. 362-363).
This record reveals the alinement, Jackson being a lieutenant of Nicholas, who was President Jefferson's right-hand man. In other respects it's far from clear. However, the diaries of Senators John Quincy Adams and William Plumer make it evident that the official reporter transplanted the motion to close the doors, to the point at which they were reopened. The galleries were actually cleared (though not at the first attempt) a short time after the resolution was introduced; the previous question was moved just before the reopening. The remark by Nicholas, which preceded the motion, was made in the middle of a debate which would have been out of order in open session. Both this fact and the nature of the struggle are made clear in the diary of Senator Adams, a Pickering supporter.
MAJORITY WANTED TO PREVENT DEBATE "On this resolution (wrote Adams) it was not without the utmost difficulty that any discussion whatsoever could be obtained.”
He described an opening maneuver by Senator Nicholas, the majority leader, and then wrote:
“The next struggle was to prevent all debate upon the resolution. By our rules there can be no debate on any motion in open court. A motion to close the doors for the purpose of discussing the resolution was rejected.”
Senator Smith, of Ohio, asked the meaning of part of White's resolution. The answer could not be given in public, so he reversed his position and furnished the additional vote needed to go into conclave. Thereupon, wrote Adams:
"The galleries were cleared, and a short discussion of the resolution was held * * * Mr. Anderson (of Tennessee) and most of the Members of the majority all the time manifesting the most extreme impatience to open the doors and stop all further debate."
The nature of the discussion is indicated by Senator Plumer's record of the remarks of the majority leader :
"Mr. Nicholas vociferated, order, order, order—I will not submit to hear our proceedings called by the degrading name of a mock trial."
To which White replied that he did not mean to offend the Virginia Senator, but he would not retract his words:
"If in this I have offended him, I am willing and ready to give him satisfaction at any time and place he will please to name.”
It was in this atmosphere, after this offer to fight a duel, that Senator Jackson moved the previous question and White demanded the yeas and nays. That forced the issue, but at this point the special impeachment rules took over.
OPENING SENATE DOORS HAD EFFECT OF CLOTURE Under the rules, all motions had to be voted on by yeas and nays in open court. It was necessary to open the doors in order to vote on Jackson's niotion. But opening the doors would produce the precise effect desired from the inotion for the previous question. It would stop all debate, because debate was forl.idden in open session. It would lead at once to a final vote, because the President pro tempore had ruled that the White resolution was fairly before the court and must be disposed of before other business was taken up, while procedural objections by Adams had balked all attempts at amendment. The effect of the majority maneuver was cloture, and Adams bitterly recorded the result:
“The doors were opened. The yeas and nays were taken on Mr. White's resolution-yeas 9, nays 19.” (White had walked out.) Memoirs of John Quincy Adams, I, 302. William Plumer, Memorandum of Proceedings in the U. S. Senate, 1803-07, pp. 173-177.)
I shall now offer some observations on the factual record.
Had the Senate been governed by the British practice of using the motion for the previous question to postpone a subject, that would have been the object in all four of the cases in which the Senate resorted to it. Instead, both in 1799 and 1804, the purpose and effect were to bring the main question to a vote, and in the 1804 instance the first objective was to halt a debate which was obnoxious to the majority.
There is no possibility that Senator Jackson moved the previous question in order to postpone the White resolution. Had that been the intention, it would have been necessary for the anti-Pickering forces to put the motion for the previous question to a vote and defeat it, thus deciding not to put the main question. Instead, they cut off debate by opening the doors, put the main question, and defeated it. They halted the debate just 2 hours after the question at issue was formally placed before the Senate.
Mr. BRANT. Here then were 4 motions for the previous question in the Senate before 1806, the first 2 resulting in postponement; the third having the effect of cloture, whether or not that was the intention of the mover; and the fourth having the sole purpose of stopping debate and forcing an immediate vote.
The motion for the previous question originated in the British House of Commons in 1604, and is commonly described as a method employed in that body for the sole purpose of disposing of a matter without taking action on it at that time. The use of it to end debate and force a vote, in our National House of Representatives and our State legislatures, is called a perversion of the British practice.
I would like to ask now about your pleasure as to your time. I would like to present what I have here but if it is an inconvenience to the committee
Senator TALMADGE. We want you to have all the time you want to develop your thoughts, Mr. Brant. Our original decision was to permit Senators as much time as they desired, with other witnesses limited to 30 minutes. But we gave Mr. Reuther an hour this morning; so, if you want to take that much time, there is no objection on my part.
Senator JAVITS. I notice that the statement you have would take you about 10 or 15 more minutes to complete, so you just go ahead.
Mr. BRANT. Looking into British treatises on parliamentary practice, I found the previous question described as a method of postpone
ment in which the mover voted against his own motion. But if the motion should happen to carry, the effect would be to cut off debate and force an immediate vote on the main question.
However, these parliamentary treatises carried only 3 or 4 references to specific use of the motion in the 17th century, the period of its origin and early use, and gave no indication of the actual results in these few precedent-setting cases.
I therefore examined the Journals of the House of Commons from 1604 down to the present time and found a truly remarkable record. In the 20th century, the previous question has been moved only twice in the House of Commons, and not once since 1911. In the 17th century, it was moved 736 times.
It resulted in cloture 491 times, in postponement 245 times. Now, I do not make the assertion that these results can be directly equated with the purposes of the men who offered the motions. The parliamentary records do not show who made the motions, or why they were made. However, they do reveal that the early form of the motion was whether the question should be now put.
Then, as the Long Parliament stiffened its resistance to Charles I, the wording was changed to a motion “that the question be now put," and at the same time, there was a lopsided increase in the number of motions that resulted in cloture. All I will say is that if 736 Englishmen did not want the question to be put, and for that purpose moved that it should be put, with the result coming out wrong in 5 cases out of every 7, it was ample justification for the War of the American, Revolution.
After England passed from the storms of the Puritan Revolution to the calm of William and Mary, the figures changed. From 1700 until 1882—the year in which the House of Commons adopted its cloture rule—the previous question resulted in cloture 115 times; in postponent, 409 times.
Now, it may be asked, why was it that when the House of Commons came to establish a cloture rule, it didn't simply utilize the previous question for that purpose? Well, that is what it did. On February 25, 1881, a year and a half before the word "closure” was applied to the practice, the wording of the motion for the previous question was employed for the avowed purpose-a purpose set forth in the Journals—of stopping debate, and the motion is recorded in the index as a motion for the previous question.
A year later, the House incorporated some special provisions and change the name to "closure.” Thus we have before us, not an American perversion of the British motion, but a kindred line of development in both countries.
To this, let me add one more fact. Before the House of Commons converted the motion for the previous question into a cloture rule, it had been dealing with obstructive debate for some years by treating it as contempt of the House, punishable by suspension. That was done under parliamentary practices dating back to 1604, which gave the Speaker power to stop "superfluous motions, and tedious or impertinent speeches."
These same rules were incorporated in Jefferson's Manual, as a guide to Senate conduct, at a time when the Vice President had unappealable power to decide points of order. Here is evidence, then,
that if the question of altering the Rules of the Senate comes before that body under the general rules of parliamentary práctice, it will make no difference whether those general rules are looked for in the practices of our 48 State legislatures or in the British House of Commons.
In either line of authority, there is full warrant for employing the motion for the previous question to put an end to debate, and any attempt to filibuster the putting of the motion for the previous question can be stopped by the authority of the Chair, backed by a majority of those present and voting.
Comparing the course of events in the House of Commons, in our House of Representatives, and in the United States Senate, we find two parliamentary principles recognized by all but unequally applied. One is recognition of the basic need for a full and thorough discussion of all proposed legislation, through debate on the floor. The other is the no less basic requirement that every legislative body shall be able to perform its work in accordance with the matured will of the majority.
In all of these bodies, deliberate and prolonged obstruction has been met first with tolerance but finally with a recognition of the need for corrective measures. Only in the Senate have the measures been inadequate. Not one of these bodies lacks the basic procedural power, or ever has lacked that power, to enforce the will of the majority. The persons who deny the existence of the power are those who do not want it exercised.
The question before the Senate today is not, shall there be a cloture rule, but where shall the line be drawn between two extremes ? At one extreme is free and unlimited debate, an admirable system in a society of philosophers but giving a small minority an absolute veto in a legislative body. At the other extreme is so sharp a control that it prevents adequate discussion of issues, either through lack of allotted time or by giving too much authority to party leaders.
Senators of all shades of opinion, I am sure, would be extremely averse to such a system of control as we find today in the House of Representatives. But that system ceased 116 years ago to be a mere preventive of filibusters. Even since 1841, when the 1-hour rule was adopted, the House has been taking more and more medicine for a : disease it does not wish to cure.
That disease is elephantiasis. If the House had free and unlimited debate today, it would be floundering in chaotic impotence, not merely during filibusters, but every day in the week. The huge size of the House not only destroys it as a debating forum freely open to all Members, but produces the centralized control that either speeds or stifles legislation, depending on the will of those in power. The evil is magnified by the fact that those who possess authority are not truly responsible to the House.
It is equally certain that the Senate does not wish to establish the kind of controls that exist in the British House of Commons. But the Senate could not do so if it desired, because the controls in the House of Commons are the inherent result of the structure of British government, which makes the Prime Minister and Cabinet at once the master and the servant of the House of Commons.
This, too, is a huge body, with 625 members, but it is so thoroughly controlled both by the structure of government and by the party dis
cipline associated with it that only 40 members are required to form a quorum.
By the structure of British government, limitation of debate always originates with the Cabinet. A motion for cloture by the opposition, or from the back benches of the party in power, against the wishes of the Cabinet, would be equivalent to a motion of no confidence. The carrying of it would produce a crisis in government.
Against this great power of the Cabinet, and the control of debating time associated with it, we should set the fact that the Cabinet ministers are members of the House, subject to relentless questioning by opposition and by back benchers. That system forces a thoroughness of debate that is quite unknown in our House of Representatives, and it imposes a responsibility on the leadership that is foreign to either branch of our Congress.
The question of cloture in the Senate must be considered in relation to the nature of that body. The Senate can control the filibuster, it can free itself from the will of a rampaging minority, without the slightest danger of acquiring the ills that afflict the House of Representatives, and without any possibility of moving into the discipline that marks the House of Commons
The Senate enjoys the blessing of a small membership and the added advantage of 6-year staggered terms of office.
No legislative body need fear internal controls, harmful to individual rights of members or to public business, as long as it is small enough, and is possessed of sufficient tenure, to enable its members to place the stamp of their individual character and abilities upon their proceedings.
As long as these structural features remain embedded in the Constitution, the Senate will retain the human traits to which the structure gives latitude. As long as this interplay of institutional structure and individual character persists, the Senate will remain basically what it is today.
By its composition and by human nature, working together, it is exempt from arbitrary control, exempt from the possibility of such control, by any official clique.
Within the limits thus outlined, the Senate can exalt or lower itself as an effective and honored branch of our Government. It can choose whether it will function through the freely expressed will of the majority, after a full exploration of issues, or be subject to the capricious rule of an irresponsible minority.
Among the seven resolutions before this subcommittee is one offered by Senators Humphrey, Anderson, Clark, and Douglas, declaring the sense of the Senate that section 3 of rule XXII: having operated as an infringement on the constitutional right of the Senate to make its own rules, is null, void, and of no further effect during the 85th Congress.
Even if the Humphrey resolution is not reported to the Senate, the question involved in it is almost certain to arise if other changes in rule XXII are presented for action during this Congress. The resolution amplifies the unofficial opinion of Vice President Nixon, given last January, that this section of rule XXII is unconstitutional. The Vice President dealt only with its validity--and asserted it to be invalid-at the opening of a session of Congress, before the formal adoption or tacit readoption of Senate rules.