that if the question of altering the Rules of the Senate comes before that body under the general rules of parliamentary practice, 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.

Mr. Humphrey and his associates say in effect that a rule which is unconstitutional remains so, regardless of formal or tacit readoption. How could it be otherwise? The Constitution does not say that "each House may determine the rules of its proceedings" in the opening week of a Congress, but may not do so afterward except under a restriction that would be unconstitutional if applied in the opening week. The power to determine rules includes the power to change them, and the power to change them cannot be narrower than the power to make them.

To support the argument that section 3 is unconstitutional I ask permission to insert an excerpt from an article written by myself, which appeared in the Washington Post and Times Herald on January 2, 1957, the full text of which may be found in the Congressional Record of January 3, beginning on page 15.

Senator TALMADGE. Without objection, it is so ordered. (The excerpt referred to is as follows:)

EXCERPT FROM ABSURDITIES AND CONFLICTS IN SENATE RULES ARE OUTLINED, BY IRVING BRANT

[From the Congressional Record of January 3, 1957, p. 15]

*

The real question is whether the Senate is constitutionally a continuing body. If it is, it can perform its legislative and executive functions without regard to the termination of a Congress. However, if the Constitution does not make the Senate a continuing body in both its legislative and executive functions, it cannot be subject to the mandatory application of past rules subordinate to those functions.

When this test is applied to the Senate's chief business-legislation-the "continuing body" theory breaks down in a multitude of absurdities.

Rule 37 provides that in the second or any subsequent session of a Congress, treaties submitted by the President shall be resumed at the same stage in which they were left at the close of the previous session. "But," the rule goes on, "all proceedings on treaties shall terminate with the Congress, and they shall be resumed at the commencement of the next Congress as if no proceedings had previously been had thereon."

That may be construed in either of two ways. It may be regarded as an acknowledgment that the Senate is not a continuing body as to treaties, save for recognition that the submission of a treaty by the President is not nullified by the transition from one Senate to the next. Or, it may be held to imply that the Senate has power to go on with the treaty in the new Congress, but chooses not to exercise that power.

The latter would be true if, by constitutional mandate, the Senate actually is a continuing body. But observe what this leads to.

Suppose that, in the final session of a Congress, the Senate adopts a rule that treaties shall be resumed in a new Congress at the same stage they reached in the previous one. It then adopts some highly controversial reservations to a pending treaty, comparable to those that killed the League of Nations, but adjourns without final action on the treaty. November comes. The voters elect onethird of the whole Senate and defeat every Senator who voted for the reservations. In January, the incoming Senators discover that they are helpless. The Senate, they are told, is a continuing body. Its new Members are bound by the decisions taken in the previous Congress, with no chance to change the decisions because the right to filibuster is protected by a rule constitutionally binding on the new Senate without its consent. Thus the "continuing body" theory would subvert the Senate's constitutional function as to treaties.

Next, what happens to the legislative function if the Senate is constitutionally a continuing body? Senate rule 32 says that "at the second or any subsequent session of a Congress, the legislative business of the Senate which remained undetermined at the close of the next preceding session of that Congress shall be resumed and proceeded with in the same manner as if no adjournment of the Senate had taken place."

That treats legislative business as if the Senate was understood to die with the Congress. If not, if the Senate is constitutionally a continuing body, it must have power to apply this unfinished business rule to the opening session of a Congress, as readily as to the second session.

And what then? Among the undetermined business of the Senate, at the end of a Congress, is the disposition of bills originating in and already passed by the House of Representatives. If the Senate is constitutionally a continuing body, it has just as much power to pass those bills in the next Congress as in the last one. Then come the absurdities.

Can the Senate hold a conference on such a bill, with the conference committee of a House which has passed out of existence? If House and Senate texts are identical, and no conference is needed, can the Senate obtain the signature of a past Speaker of the House who may be dead or defeated? Or if he has been reelected, will he sign retroactively as Speaker of a dead House?

The crowning absurdity is reached if such a bill is sent to the President and vetoed as it certainly would be as unconstitutional. The President would not even be able to send it back, as the Constitution requires, to the House in which it shall have originated. That House would have ceased to exist. It could only be conjured into being by assuming that the House of Representatives is also a continuing body. Thus the chain of incongruities leads to an inescapable conclusion. Either each House is a continuing body, or neither one is.

There is in fact not a vestige of support in history, law, or logic either for the theory that the Senate has the constitutional powers of a continuing body, or that the automatic continuation of its rules has anything mandatory about it. The very words of the Constitution contradict this claim. It says: "Each House may determine the rules of its proceedings."

If somebody should propose a rule reading "The rules of the Senate shall not be changed," it would be recognized instantly as a violation of the Constitution. But that is substantially what has been engrafted on the Senate, by a rule making changes in rules subject to a perpetual filibuster, and by denying the inherent power of the present body to make its own rules.

To sustain the power of the Senate to free itself from the dead hand of the past, its Members only need to go to the words of the Constitution: "Each House may determine the rules of its proceedings."

Those who would have the Senate divest itself of this constitutional power can best appeal to the precedent of the ancient Chinese, who handed their sovereignty over to their deceased grandfathers.

Mr. BRANT. In Senate Resolution 30-the Knowland-Johnson resolution sponsored by 39 Senators-there is a proposal to add a new section to rule XXXII reading as follows:

The rules of the Senate shall continue from one Congress to the next Congress unless they are changed as provided in these rules.

I cannot believe that the 39 Senators who sponsored this resolution gave sufficient thought to the meaning of this particular proposal. It is just as surely unconstitutional as section 3 of rule XXII. It is based on the fallacy that the Senate is constitutionally a continuing body, instead of a body with a partially continuing membership.

It attempts to impose the will of the Senate of the 85th Congress on the Senate of all future Congresses, by fixing the conditions under which the Senate in future Congresses shall be allowed to change its rules. It would prohibit a Senate elected in 1960, or in 1964, or in the year 2,000, from proceeding de novo to determine its rules at the opening session of a Congress. Such an action violates section 5 of article 1 of the Constitution, by restricting the power of the Senate to determine its rules.

I am the more inclined to think that this section was proposed without due consideration, because of its ambiguity. What is meant by the words "as provided in these rules?" Does that refer to the rules in effect at the time the restrictive clause is incorporated in them, or

as they may be at some indefinite time in the future? Either alternative is enough to condemn the proposition and to make its unconstitutionality even more apparent.

(Additional views of Mr. Brant on sec. 3 of rule XXII, subsequently supplied for the record, are as follows:)

The Knowland-Johnson resolution fails to repeal that part of section 3 of rule XXII by which proposals to change the Standing Rules are exempted from the provisions of the last paragraph of rule VIII, which reads as follows:

"All motions made before 2 o'clock to proceed to the consideration of any matter shall be determined without debate."

Why should a proposal to change the rules, reported favorably by the Committee on Rules and Administration, be singled out for this discrimination? Only the need to correct a serious evil would induce the committee to place such a resolution on the calendar in the midst of a session of Congress. That is a reason for expediting consideration rather than obstructing it. If the Senate does not wish to consider the proposal, it can save a great deal of time by proceeding under rule VIII and defeating it without debate. If it does wish to take it up, it should not be hampered in its power to do so. By striking out section 3 of rule XXII altogether, as is proposed in other resolutions before this committee, you will place rule changes on the same basis as all other business coming under rule VIII. Otherwise you will perpetuate a rear-guard defense of the very evil you are seeking to curb.

Mr. BRANT. Coming now to the main question that of strengthening the control of the Senate over debate we find the Senate facing a legislative situation that calls imperatively for a more workable cloture rule. We also find, in the sponsorship of these resolutions, a majority of the Senate concurring in the need for the change.

Taking the Knowland-Johnson and the Douglas resolutions as the principal alternatives-since these are sponsored by 53 Senators in all-two questions are presented to this committee:

1. Shall the Senate merely drop the requirement of 64 votes for cloture, and go back to the 1917 requirement of a two-thirds majority of those present and voting?

2. Or shall this change be coupled with a provision that if the twothirds majority is not obtained, the Senate may close debate, after it has extended through 15 additional days, by the vote of a simple majority of the entire membership?

We had ample proof from 1917 to 1949 that the old cloture rule was ineffective. So the real question is: Are there such terrors in control of debate by a constitutional majority-by a majority of all Senators elected and serving that it is better to continue to tolerate the uncontrollable filibuster while making a pretense of ending it?

If it were proposed to enable a majority to cut off debate at its inception, or so quickly as to prevent the adequate presentation of minority views, or if it could force a vote before there was time for the debate to produce an effective reaction upon public opinion, then I would say that it was a dangerous proposal.

But there is nothing of the sort in the resolution cosponsored by Senator Douglas and 14 other Members of the Senate. The Douglas resolution accepts, initially, the 1917 requirement of a two-thirds affirmative majority of Senators prseent, but adds a proviso that after 15 days of debate, subsequent to the filing of the cloture motion, it may be voted on a second time and made effective by the support of a constitutional majority.

Even then, there would be an additional period of debate, allowing 1 hour to each Member of the Senate. The shortest conceivable debate,