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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
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,
under this rule, would last through 18 calendar days, and might run far longer, depending on the time at which 16 Senators filed a cloture motion.
Surely nobody will seriously assert that 18 days of debate is too short a time in which to present both sides of any question, when the time is devoted to that actual purpose and not to the purpose of obstruction. The real question is whether there shall be a vote at all. The answer to that lies in the choice between the two-thirds vote and the constitutional majority, as a means of cloture after the debate has become an otherwise interminable filibuster.
On this point let me present some specific evidence. Since 1917, the Senate has voted on 22 cloture motions. Three of these--none later than 1926—received more than 64 affirmative votes, although that number was not then required.
Four of them, including the three above mentioned, were supported by more than two-thirds of the Senators who voted. Of the entire 22, only these 4 stopped the filibuster.
Nine motions out of the twenty-two received a constitutional majority.
Fifteen out of the twenty-two were supported by a majority of those present and voting.
Thus we find that if the rule now asked for in Senate Resolution 17 had been in effect since 1917, 13 out of the 22 motions would still have failed. It is hard to see drastic or dangerous future results in a system that would have produced such mild results in the past.
Eight of these 22 motions dealt with civil-rights bills. Of these 8, only 2 received the votes of more than half the membership. Neither of these was supported by two-thirds of those present and voting.
Observe also the time element in these eight tests of cloture on civil rights. Four of the motions, offered from 1938 to 1944, received less than a majority of the votes of those present.
Two of them, in 1946, received a majority vote, but less than a majority of the entire membership.
The last two, in 1950, received a constitutional majority. Not one of these received a two-thirds vote.
Suppose, now, that the provisions of Senate Resolution 17 had been in the Senate rules during the past two decades. Six cloture motions involving civil rights would have been defeated in the first decade. Two would have carried in the second decade. But all of them would have met defeat under the Knowland-Johnson proposal.
Here is evidence that the passage of a cloture motion by a constitutional majority, in civil-rights matters, does not depend on the mere adoption of a rule making such a vote effective. It depends on the development of public opinion and senatorial opinion.
But there has been no instance yet in which that development has reached a high enough pitch to produce cloture by a two-thirds vote of those present. It may well be that the tide of national sentiment is strong enough today to produce that result. Even if that is true, we still have long-term evidence that the two-thirds requirement is not a method of controlling the filibuster. It is, on the contrary, an enthronement of it in the chair of senatorial authority.
Gentlemen, we live in a world and in an age whose political and economic problems and social tensions impose responsibilities on the
American Government undreamed of a generation ago. We are endeavoring to meet them at the legislative level, and to preserve our own rights and liberties in the process, through a continued reliance on the wisdom and patriotism of an informed majority, both in the electorate and in the Congress.
We cannot cope with our problems if the majority abdicates its power, because the majority cannot at the same time abdicate its responsibilities.
Minority government, without responsibility, is chaos. Minority government, with responsibility, is totalitarianism. The choice before us, unless we are going to abandon our democratic institutions, is effective government through a responsible majority, or the negation of government by an irresponsible minority.
That choice lies before your committee, in helping to decide whether the Senate shall move ahead with a cloture rule made effective by a constitutional majority, or move backward into the familiar and paralyzing frustrations of the 1917 procedure.
Senator TALMADGE. Any questions?
Senator Javits. I just want to thank you, Mr. Brant, for what is, in my opinion, at least, as erudite a presentation of this matter as I have heard anywhere, and I think it certainly will contribute very heavily to my thinking. I am very grateful.
Mr. BRANT. Thank you.
Senator TALMADGE. Thank you for appearing before us, and for your very fine statement.
(Additional information subsequently supplied by Mr. Brant is as follows:)
WASHINGTON, D. C., July 8, 1957. Senator JACOB K. JAVITS,
Senate Office Building, Washington, D. C. DEAR SENATOR JAVITS: Since testifying before your subcommittee on June 28, I have found definite proof that the motion for the previous question, in early English practice, was deliberately resorted to as an instrument of cloture. It was not by accident, therefore, that it usually had that result. Of the two instances given below, the first rests on an inference too strong to be challenged, the second on direct assertions of purpose by the persons involved.
On April 18, 1640, 5 days after Parliament ended its 12-year dissolution, this entry was made in the Journal of the House of Commons: “Upon the question, whether it should be put to the question, for Mr. Grimston's assuming the Chair, when Mr. Speaker left it, it was agreed it should be put to the question.” Upon the main question, "it was resolved, that he should take it.”
It is obvious from the nature of that motion, on the naming of a member to preside in committee of the whole, that the purpose was affirmative. It was also a crucial action. The House intended to challenge the arrest by Charles I of members of the last Parliament, and other violations of privilege. The challengers needed a man of proven courage in the Chair, one who would not say, as the Speaker had done in 1628: “Let not the reward of my service be my ruin * * * I will not say, I will not put the question; but I say, I dare not.” So in 1640 they moved and carried the previous question and placed in the Chair Sir Harbottle Grimston, who had just called on his fellows to cure the ulcerous body politic by cleansing it of the causes of its “blotches, blanes, and scabs" (Parliamentary History of England, VIII, 420-421, 435–436).
A fortnight later King Charles offered to abandon the illegal “ship money" system of raising revenue if Parliament would vote certain specified funds for his war against the Scots. The story is told in the Earl of Clarendon's History of the Rebellion, which he began to write in 1646. After 2 days' debate, the popular John Hampden “thought the matter ripe for the question, and desired that the question might be put, ‘Whether the House would consent to the proposition made by the King as it was contained in the message?'” This motion was cleverly worded to unite those who disliked either the form or the size of the request.