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STATEMENT OF IRVING BRANT, WASHINGTON, D. C.
Senator Javits. Mr. Brant, may I suggest-
Senator JAVITTS. That you have quite a record as a scholar. Could you give us very briefly something of your personal qualifications?
Mr. BRANT. Well, you know, that wasn't what I expected at all. I thought you meant on account of the lateness of the hour that I had better put part of this in the record without reading it.
Senator JAVITS. Whatever you desire, but we would like to know a little bit of your background so we will have some qualification of the statement you are making.
Mr. BRANT. That is in my opening statement, my opening paragraph of my statement.
My name is Irving Brant, of 3333 M Street, SE., Washington, D. C. My background is that of a newspaper editorial writer who has turned to historical research and writing. On account of the sectional aspects of the subject you are dealing with, I ought perhaps to remark that I am a native of the State of Iowa, but have been a resident, during most of my adult years, of the State of Missouri and the District of Columbia, with brief periods of residence in Tennessee, Florida, southern Virginia and California.
In 1938, I resigned as editor of the editorial page of the St. Louis Star-Times in order to write a biography of President Madison, of which five volumes have so far been published. This has involved a study of the establishment of our system of Government, including the framing and early interpretation of the Constitution and the activities of Congress during the first quarter century of its existence.
Your committee is considering 6 Senate Resolutions which propose specific changes in rule XXII, also an addition to rule XXXII, and 1 resolution declaring it to be the sense of the Senate that 1 section of rule XXII is unconstitutional. The 6 resolutions which propose changes all have 1 feature in common.
All of them would repeal the amendment adopted in 1949, which made it impossible to stop debate except by the affirmative votes of two-thirds of the total membership of the Senate. In other words, all 6 resolutions propose to put an end to the preposterous and paralyzing situation by which the absence of a Senator is the same as a vote against cloture, and offsets 2 favorable votes, even though the absentee would vote for cloture if present.
Excluding duplications in sponsorship, 54 members of the Senate 6 more than one-half of the entire membership—have attached their names to these 6 resolutions.
These same 54 Senators, in one or another of the resolutions, also ask either for the total repeal of section 3 of rule XXII, which allows unlimited debate on any proposal to change rule XXII, or the amending of that section to strike out that particular feature of it. Thus, a majority of the entire membership has taken a public stand against the clause whose sole purpose and effect is to nullify the provision of the Constitution which empowers the Senate to determine its own rules.
I presume that the invitation to testify before this subcommittee results from the fact that, in consequence of some remarks made about me in Senate debate last January, I wrote a rather lengthy memo
randum on the development of the previous question and cloture in American and British practices.
This memorandum, along with other material accompanying it, was utilized by Senator Douglas of Illinois in his speech of May ý on the previous question, and is to be found in the Congressional Record of that day.
My assumption is that you expect me to discuss the attitude toward restriction of debate in the early Congresses of the United States, and the bearing of the original Senate rules on that subject. However, one of your cochairmen, at the opening of these hearings, advised witnesses that the committee's chief desire was to hear a discussion of the specific changes proposed to rule XXII.
Since my review of American and British practice is presented rather fully in the Congressional Record, and is easily available there, I shall deal with it here only in the barest synopsis, as a basis for comments on the seven resolutions you are considering.
As is well known, the United States House of Representatives began to limit debate in 1811 by means of the motion for the previous question. It was confronted with persistent filibustering against the "measures short of war” that preceded the War of 1812.
The alternatives were to surrender to the minority, or to use the power of the majority to end a purely obstructive debate. The majority acted, not arbitrarily, but after many day-and-night sessions, with the clock running toward a compulsory sine die adjournment.
The United States Senate had a previous-question rule from 1789 until 1806, when it was dropped. The rule read as follows:
The previous question being moved and seconded, the question from the Chair shall be: “Shall the main question be now put?" And if the nays prevail, the main question shall not then be put.
The previous question was moved in the Senate on four occasions. In 1789, the nays won and the subject was postponed. In 1792, the question was worded in reverse. It was moved "That the question be not now put." This carried and resulted in postponement. In 1799, the question was moved in the wording required by the rules, “Shall the main question be now put ?" The affirmative won, producing cloture. The main question was then put, and it also carried.
On the fourth and last occasion, in 1804, the previous question was moved during the impeachment trial of Judge Pickering. The complicated details of this controversy are set forth in my memorandum on the previous question, and may be found on page 5963 of the Congressional Record of May 9, 1957. Instead of summarizing them here, I shall merely quote two sentences from the diary of Senator John Quincy Adams concerning these proceedings:
On this resolution it was not without the utmost difficulty that any discussion whatsoever could be obtained.
The majority actually did cut off the debate and proceeded at once to defeat the resolution. Its action, I may add, was by no means so arbitrary as one might suppose from the comment by Adams. The proposal, a procedural one, had already been debated in another form for 3 full days, and defeated.
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,