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PROPOSED AMENDMENTS TO RULE XXII OF THE

STANDING RULES OF THE SENATE

TUESDAY, JULY 2, 1957

UNITED STATES SENATE,

SPECIAL SUBCOMMITTEE OF THE
COMMITTEE ON RULES AND ADMINISTRATION,

Washington, D. C. The subcommittee met, pursuant to recess, at 10:45 a. m., in room 155, Senate Office Building, Senator Herman E. Talmadge (chairman of the subcommittee) presiding.

Present: Senators Talmadge (presiding) and Javits.

Also present: Langdon West, special counsel to the subcommittee; Darrell St. Claire, professional staff member; Robert S. McCain, professional staff member; and Sidney Kelley, Jr., administrative assistant to Senator Javits.

Senator TALMADGE. The subcommittee will come to order.

The first witness on the agenda is Mrs. John Howland Snow, president, National Association of Pro America, New Canaan, Conn.

Mrs. Snow, please sit here and proceed when you are ready. STATEMENT OF MRS. JOHN HOWLAND SNOW, PRESIDENT, NA

TIONAL ASSOCIATION OF PRO AMERICA, NEW CANAAN, CONN.

Mrs. Snow. Mr. Chairman and members of the subcommittee hearing testimony on proposed amendments to Senate rule XXII, I am appearing here on behalf of the board of directors of the National Association of Pro America to oppose any amendment to Senate rule XXII which would limit floor debate.

We oppose limitation of debate on any specific question or legislation except, as presently provided in the rules, upon an affirmative vote of two-thirds of the membership of the Senate. Our opposition is based upon principle, and not upon the anticipation of debate or vote upon any particular or specific legislation introduced or pending before either of the Houses of Congress.

Insofar as my research has revealed, the United States Senate is the only deliberative legislative body in the world today which has unlimited debate, and the freedom of its Members to express views which may happen to be minority views—with resultant opportunity for the sovereign people to become informed about legislation, gives our Senate one of its greatest strengths. It is this opportunity to prevent precipitous and not fully considered action which lends to our Senate the prestige it has gained for protecting each segment of our population at all times.

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Our Founding Fathers well knew that it was essential for us to have a body such as this Senate, and in contrast to our House of Representatives provided that its Members have longer tenure of office, a change of but one-third of its membership in each biennium, graver attitudes and, as a whole, longer experience—while still being responsible to the electorate. This gave a balanced stability to our two Houses, and we believe that the full and unlimited debate, peculiar to this body, is a priceless factor in that balance and in that stability. And equally, it is important and necessary that this particular body have its rules so arranged that any impetuous or occasional hasty decision may be forestalled, and that should any Member of the Senate feel that if a proposed action were sufficiently understood, the vote would or could be different, he may with the consent of his colleagues explain and explore all the avenues and evidence to insure such understanding.

Believing wholeheartedly in representative processes, we, the National Association of Pro America, hold firmly to the wisdom and principle of complete freedom of discussion, not to be limited unless and until two-thirds of the Senate agree that debate has been sufficiently prolonged and adequately informative that it should be terminated for the purpose of voting; and that no legislation, however much subjected to hearings or debate in its assigned committee, should be brought out on the floor with debate of 96 Senators "limited under the rule.”

This may be proper in another body, where the large membership alone requires procedures not consonant with a body composed of no more than two spokesmen for each State; the Senate must, we feel, guard its peculiar procedures, which if not retained, could come to make of it little more than a smaller, but second, House.

We know, as the distinguished Senators know, that a majority is by no means always right; but we believe, as we are sure you believe, that an informed majority is usually right, and we are ready to see our country's destiny in the hands of an informed two-thirds membership of the Senate.

The National Association of Pro America is more than willing on occasion to see the price paid, the time lag which must be the inevitable result, in order to preserve untrammeled the right of unrestricted debate which distinguishes the Senate of these United States from every other deliberative body in the world.

There have been, and no doubt will be, abuses of this right of unlimited debate. We of Pro America recognize, as do you Members of the Senate, that there are disadvantages in free debate equally as there are disadvantages inherent in proposals of limited debate. We ask to point out, however, that the disadvantages inherent in limitation other than that presently in effect may include the element of danger, as well; and we think they do. The danger will be disavowed, on the ground that it would never eventuate. We believe, however, it to be a dictate of wisdom that policy should not be amended in such a way as to, by such alteration, establish a principle which may at some time unforeseen make possible a situation of “clear and present danger."

The great beneficiary of free debate is the momentary minority. There is a minority opinion on any and every given question which may come before the Senate or before another body. The personnel

of the minority changes with the matter under debate. And the opinions of the “unpopular minority” today may become the premises of “accepted majority” tomorrow. The right of free debate has been established for these natural and ever changing minorities.

The balanced stability between the two Houses of Congress rests in great measure upon the right of unlimited debate which for so long has been a principle of the one.

This principle is expressed in Senate rule XXII.
Senator TALMADGE. Any questions, Senator?

Senator JAVITS. I thought Mrs. Snow might like to spread on the record the number of members, dues paying, however you would describe them, of the organization.

Mrs. Snow. I do not have the exact number of members. I have this statement which we have mimeographed giving the address and when it was founded. Its membership is composed of women interested in the field of politics and political education, and includes members of both large political parties and women who have never been members of any political party. Presently, its national office is in Connecticut because its office follows the president.

Senator JAVITS. But you do not have the number of your members. Mrs. Snow. I do not have that. It is in the neighborhood, Senator, of 7,500, I think. I am not sure of that because that is not my responsibility.

Senator JAVITS. Thank you.

Senator TALMADGE. Thank you very much for your fine statement, Mrs. Snow. We appreciate your being with us.

Mr. Deutsch, Senator Long wanted to come down and present you, but apparently he has been detained, so we will proceed, if you are ready. STATEMENT OF EBERHARD P. DEUTSCH, ATTORNEY,

NEW ORLEANS, LA. Mr. DEUTSCH. Mr. Chairman, I am Eberhard P. Deutsch, of New Orleans. I was born in Cincinnati, Ohio, on October 31, 1897.

I completed my studies in law at the Tulane University of Louisiana at New Orleans in 1925, since which time I have been engaged in active practice in that city.

I served for 212 years in the First World War, and for some 41/2 years in the second, following the end of which I served further as principal legal adviser to Gen. Mark W. Clark in the military administration of Austria, and as member and chairman of the Allied Military Legal Directorate governing that country.

I am a member of the American Bar Association and of its standing committee on peace and law through United Nations. I am also a member of the Louisiana State and New Orleans bar associations; of the Association of the Bar of the City of New York; a director of the American Judicature Society; a member of the Maritime Law Association, of the American Society of International Law, of the International Law Association, of the Selden Society, and of other organizations in the same and related fields.

I was Special Assistant to the Attorney General of the United States in the appeal of the vast Texas City disaster litigation, believed to have been the largest litigation in the history of the world.

My practice has spread over large areas of constitutional law. I was counsel for Louisiana newspapers in the case in 1936, in which the Supreme Court of the United States held unanimously that a tax on advertising constituted an infringement of the freedom of the press.

I have acted as counsel for the American Civil Liberties Union in a number of cases involving impairment of civil rights.

Articles which I have written on constitutional law have appeared in leading law journals throughout the country, and have been cited by the Supreme Court of the United States and by other courts.

I am firmly convinced that the time-honored principle of free and unlimited debate in the United States Senate is a cardinal bastion among those set up for protection of our constitutional liberties.

In accord with this conviction, I oppose any modification of Senate rule XXII which would result in either an immediate or eventual cloture provision.

Nearly 2,500 years ago, Pericles, the great Athenian statesman, said that, acts are foredoomed to failure when undertaken undiscussed.

It would seem to be no less a travesty on wisdom in the 20th century of the Christian era, to undertake to effect a self-imposed restraint on discussion in the Senate of the United States, concededly the ablest legislative body in the history of the world.

Inroads of cloture have already encroached on the Senate's original rule of unlimited debate; a principle which had steadfastly withstood the influence of the "hour rule” adopted by the House of Representatives in 1841.

First in 1917, and later in 1949, Senate rule XXII was amended by provisions from which the Senate's present cloture clause evolved. Because, however, it is so extremely difficult, as a practical matter, to bring this clause into play, Members of the Senate continue to have a right of essentially unlimited debate.

The case for unlimited debate in the Senate has its roots firmly planted in the tenets of our American philosophy of government. Complete freedom of legislative debate is actually one of the fundamental, inalienable rights secured by the Constitution.

It must be remembered that freedom of debate in the Senate is not a right appertaining to the individual Members of that body as such.

It is the right of "we, the people," to be assured that our representatives shall be free to discuss for us, the merits and demerits of measvres pending or proposed, without regard to advocacy or opposition by majority or minority, without restriction, and without accountability except to the Chamber as a whole.

The exercise of this right serves to keep an intelligent electorate informed as to its own public affairs, and is thus allied to, and protects, our own unrestricted kindred rights of freedom of political thought and expression.

That this guardian of our other freedoms has long held its preeminent position among our fundamental liberties is manifest from the pages of our history. And, in the words of Mr. Justice Holmes, "a

page of history is worth a volume of logic."

Even prior to adoption of our National Constitution, the bill of rights (art. XII) of the constitution of Massachusetts provided :

The freedom of deliberation, speech and debate, in either house of the legislature, is so essential to the rights of the people, that it cannot be the foundation to any accusation of prosecution, action or compaint, in any other court or place whatsoever.

The Articles of Confederation provided, in article V, clause 5, thatfreedom of speech and debate in Congress shall not be impeached or questioned in any court or place out of Congress-and this concept was carried over into clause 1 of section 6 of the first article of the Constitution of the United States.

It is true that freedom from accountability for what is said in parlimentary debate does not in terms entail a right to unlimited debate; but freedom of debate involves an absence of restriction on debate, a concept which has withstood assault throughout the history of the Senate of the United States.

In 1841, 4 days after the "hour rule” of cloture had been introduced in the House, Henry Clay sought to introduce it in the Senate. In support of his measure, he said:

Let our contests be contests of intellectuality, and not of physical force in seeing who could sit out the other or consume the most time in useless debate.

The Senate, however, refused to accede to Clay's appeal. The consensus of opinion in this body at that time, was expressed by Senator Rufus King, of Alabama, as follows, as summarized by Thomas Benton in Thirty Years' View, Appelton, New York, 1854–56, vol. two, p. 253:

Mr. King was truly sorry to see the honorable Senator so far forgetting what is due to the Senate, as to talk of coercing it by any possible abridgment of its free action. The freedom of debate has never yet been abridged in that body since the foundation of this Government. Was it fit or becoming, after 50 years of unrestrained liberty, to threaten it with a gag law? He could tell the Senator that, peaceable a man as he, Mr. King, was, whenever it was attempted to violate that sanctuary, he, for one, could resist that attempt even unto death.

Why have Americans, through the course of our history, come to feel so strongly about preserving free and unfettered debate in the upper Chamber of Congress? What primary concept has motivated their adherence to this principle which so plainly reveals the essential vitality to our Government which this freedom furnishes?

Succinctly stated, the rationale of the principle lies in the oft-repeated maxìm that our American tenet of majority rule is qualified by the equally basic tenet that minorities have inviolable rights.

In a parliamentary system whose government is represented by its cabinet, the will of the majority is the supreme law of the land, unfettered by express constitutional restraints.

But the glory of such a constitutional system as our own lies in its enforceable guaranties of protection of minority rights and liberties.

It will be recalled that the Declaration of American Independence was grounded on the concept that governments are instituted among men to secure their inalienable rights and liberties, and that whenever any form of government becomes destructive of these ends, it is the right of the people to alter or abolish it.

When government threatens to destroy the rights of a minority, freedom of unlimited debate in the nation's highest legislative assembly is the surest and safest method by which to avoid all too frequently

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