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separates the powers of government, divides and confuses responsibility, and makes things move by the calendar rather than by popular will. Had we executive leadership of, or control by, the Legislature, the problem would be quite different. As things are, the justification of unrestricted debate in the Senate is the nature of our governmental system.
That persuasive argument by minorities may lead to the attainment of justice through conversion of majority views is a common phenomenon of our daily lives. It can find no more forceful illustration than in persuasion against cloture itself.
Thus, Senator Hoar, of Massachusetts, conceded frankly over half a century ago:
There was a time in my legislative career when I believed that the absence of a cloture rule in the Senate was criminal neglect, and that we should adopt a system of rules by which business could be conducted; but the logic of my long service has now convinced me that I was wrong in that contention. There is a virtue in unlimited debate, the philosophy of which cannot be detected upon a surface consideration.
I, accordingly, respectfully urge this subcommittee to report unfavorably on all proposed amendments to Senate rule XXII which seek to infringe on free and unlimited debate—a basic freedom which serves as one of the important tenets of our constitutional democracy.
Senator JavitS. Mr. Deutsch, obviously, this is very throughly researched and I, therefore, wondered if there was any reason why, at page 3 of your statement, you said, "Inroads of cloture have already encroached on the Senate's original rule of unlimited debate,” in view of the fact that apparently the consistent research in this committee shows that the origina] rule of the Senate up to 1806 allowed that the previous question was fully invoked to limit debate by a vote of the majority.
Mr. DEUTSCH. I confess I did not know that that was true up to that time.
Senator JAVITs. This is obviously so well researched. Mr. DEUTSCH. It was intended to be. I am sorry. I did not know about that early procedure.
Senator TALMADGE. I might state for the record that the previousquestion rule was in existence from 1789 to 1806. During that time it was invoked, I believe, four times.
Senator JAVITS. Very infrequently.
Senator TALMADGE. Thereafter, it was abandoned completely until the year 1917.
Mr. DEUTSCH. I did not realize that.
Senator TALMADGE. Mr. Deutsch, we appreciate very much your coming and giving this valuable statement.
Senator Case is on the way and we want to hear him as soon as he arrives, and Mr. Bloch is the next witness following Senator Case.
Would you proceed, and let us interrupt you when he gets here, please?
I would like to say for the record that Mr. Bloch is here at my request and my personal invitation. He also officially represents the State of Georgia by direction of the Governor, Hon. Marvin Griffin. He has been a longtime friend of mine. He has held a great many positions of honor, trust, and distinction bestowed at the hands of the people of the State of Georgia. He is immediate past chairman of the Judicial Council of Georgia. He is presently chairman of the educational committee of the board of regents of the university system of Georgia. He is a former president of the Georgia Bar Association. He is a former member of the General Assembly of Georgia. He is a veteran of World War I. He is one of the most able constitutional lawyers in our section and of the Nation, as well as a scholar of note.
I am proud to present him for this statement at this time.
STATEMENT OF CHARLES J. BLOCH, MACON, GA. Mr. Bloch. Thank you, Senator. Thank you very much. I have a written statement; rather, an outline of a written statement which I desire to preface, particularly in the light of the fact that I follow the distinguished gentleman from Louisiana, Mr. Deutsch, and I understand that I am to be followed by another distinguished gentleman from New Orleans, Mr. Barr.
I was born in Louisiana. I was born in Baton Rouge, La., in 1893. My family moved to Macon, Ga., in 1901. I practiced law there since 1914. I have keen ties to Louisiana because my maternal grandfather was an officer in a Louisiana regiment, the 4th Louisiana Regiment, during the War Between the States. He was a native of Alsace. My father was a native of Alsace.
Senator TALMADGE. Will you suspend now, please, and let us hear Senator Case. The Senate convenes in 22 minutes, and I know the Senators with committee meetings and sessions at this date are very, very busy. (Mr. Bloch's testimony resumed on p. 207.)
Senator, Case, you may proceed at will. Mr. Bloch was testifying, and he very kindly consented to defer the remainder of his testimony in order that you might make your statement. We are happy to have you with us at this time.
STATEMENT OF HON. CLIFFORD P. CASE, A UNITED STATES
SENATOR FROM THE STATE OF NEW JERSEY
Senator CASE. Thank you, Mr. Chairman, and it is very gracious of you. I shouldn't have asked that this be done if I realized you were doing it.
Mr. Chairman, I have a prepared statement, but it is quite short, and perhaps the best thing to do is go through it verbatim.
I appreciate the opportunity to appear before you in connection with these proposals pending for the amendment of rule XXII. My comments will be brief, because I know that the members of the subcommittee already are fully aware of the importance of the subject and its far-reaching implications.
My concern is with the correction of the situation which has so long obtained in which a handful of Senators can utterly frustrate the Senate's will, can prevent it from performing its fundamental constitutional duty to legislate.
The junior Senator from California, Mr. Kuchel, in the discussion of his subject at the opening of the current session of the 85th Congress inserted in the Congressional Record for January 4, 1957, at page 122, a statement by Vice President Dawes on this subject. It may already have been inserted in the record of these proceedings, but if it hasn't, I should ask permission to insert it.
Senator TALMADGE. Without objection, it will be so ordered.
(The statement of former Vice President Dawes, already included in the record, may be found as part of Senator Kuchel's statement, on p. 103.)
Senator CASE. I appreciate the importance of full deliberation which the Senate rules provide for. And the importance of insuring that action on matters of great consequence should not be taken in haste. As Senator Flanders pointed out in the Senate debate last January, it is right that voting on such matters should be delayed in order to permit the development of full public understanding. He suggested with pertinence that the proposal by President Roosevelt for increasing the membership of the Supreme Court was a good example of such a matter.
And so, like Senator Flanders, I am not in favor of making cloture easy. But, like him also, I am not in favor of making it practically impossible.
It is said that whenever a substantial majority of the Senate wishes to act on anything it has the power to do so under our present rules. It is said that there are no instances of a successful filibuster permanently preventing a majority in the Senate from working its will except upon the so-called civil-rights issues. Even if this were true, the frustration of action on those issues alone would more than justify, indeed I suggest it makes imperative, the amendment of the Senate's rules.
But I know the committee has available the detailed historical studies which have been made on this question and there would be no point in my attempting to cover the same ground. I do suggest, however, that all of us know that the existence of the power of a small minority to tie the Senate into knots by the mere hint of the possibility of a filibuster has time and time again affected adversely the ability of the Senate to proceed in the ways in which a great majority of its Members desired.
Beyond that, I suggest that it is degrading beyond measure that in the mid-20th century, in a supposedly civilized era, one branch of the Nation's highest legislative body should be forced to beat down through physical exhaustion a filibuster by a small group of its Members before it can proceed to act.
The Senate of the United States is the only place I know of where the medieval practice of trial by ordeal still survives.
There are a number of different proposals for amendment of rule XXII pending before the subcommittee. I myself am a cosponsor of one of them. Senate Resolution 17, introduced on January 7 of this year.
I believe this resolution is the soundest of the various proposals. As you know, this resolution provides that, as in the present rule, 16 Senators may present a motion to bring debate to a close. The motion would lie over 1 full day and on the day thereafter, that is, 2 days after presentation, the motion would be put to a vote. The motion would carry only if two-thirds of the Senators present and voting voted in the affirmative. Thereafter, each Senator would be entitled to speak
for 1 hour on the pending business. The only change in the present rule here involved is the substitution of present and voting for “duly chosen and sworn."
In addition, Senate Resolution 17 would also provide for a vote on the cloture motion 15 days, excluding Sundays and legal holidays, after it has been presented. In this case the question could be decided affirmatively by a majority of the Senators duly chosen and sworn.
These seem to me reasonable provisions. They would amply safeguard the right to full discussion and debate. Even after passage of a cloture motion, which itself would involve a minimum of 2 days, there could be as much as 96 hours or 12 eight-hour days of debate. Moreover, in actual practice a much longer time for debate would be available. This is because in most cases, as I am sure the subcommittee realizes, 2 or even 3 clotures might have to be invoked to arrive at final action on a measure.
In this connection, the subcommittee might wish to consider incorporation in Senate Resolution 17 of a provision to allow any Senator to yield to any other Senator all or part of the hour to which the former is entitled following passage of a cloture motion. This is not, of course, permissible at present except by unanimous consent. Such a provision, which is included in Senate Resolution 21 by Senator Morse, would permit greater flexibility and full use of the time allowed under cloture.
All the pending resolutions provide that the present provision of section 3, rule XXII which prevents the application of subsection 2, the cloture provision, of rule XXII to proposals to change any of the Standing Rules of the Senate should be eliminated. Obviously this should be done.
As Senator Anderson pointed out at the beginning of this session, the effect of section 3 is that the Senate cannot amend the present cloture rule. It is impossible, I think, to improve upon Senator Anderson's comment:
I do not like everything in the provisions regarding cloture. But I am outTaged by section 3 which provides that I may do nothing about it.
Mr. Chairman, the great majority of the Members of the Senate are outraged by this situation. Moreover, as Vice President Nixon clearly indicated in his opinion of January 4 of this year, which appears on pages 140 and 141 of the Congressional Record, that provision of section 3 is undoubtedly unconstitutional as having the effect of denying a majority of the Senate in a new Congress the right to adopt rules.
This leads me, Mr. Chairman, to my final point. Whatever recommendation the subcommittee may make I urge that this recommendation shall not in any way conflict or overrule the sound and statesmanlike opinion of the Vice President. Specifically, if the subcommittee should decide to recommend the adoption of Senate Resolution 30, sponsored by the majority and minority leaders and a number of other Members of the Senate, I urge that the words “as provided in these rules" be stricken from paragraph 2 of section 3 of that resolution. The full paragraph of that resolution reads 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 would suggest striking that clause "as provided in these rules.”
Whether or not intended, the effect of these words, “as provided in these rules,” would be to prevent the Senate at the beginning of a session from altering or amending its rules by majority vote. This would, of course, be directly in conflict with the position taken by the Vice President, and I believe, with the Vice President, that it would be unconstitutional.
Above all, Mr. Chairman, I urge prompt action. This matter has been before the Senate and various of its committees for a long time and on many different occasions. It has been fully studied. I am sure it is fully understood. It would be a travesty if this latest effort to correct a situation which has so long been crying for correction should fail. The Senate must act before the close of the present session.
As a new member of this committee, I am deeply concerned that Senator Anderson's prophecy, made on the floor of the Senate of the 4th of January last, should not come to pass. You will remember that just before the vote on the motion to table Senator Anderson's motion to proceed to consideration of the Senate rules he stated :
The Senator from California will find that he can send his resolution to the Committee on Rules and Administration, but that after weeks and after months it will not see the light of day on the Senate floor.
Senator TALMADGE. Any questions?
Senator JAVITS. Senator Case, I apologize for not being here when you started. I have a distinguished constituent of mine here, United States attorney for eastern district of New York, Mr. Leonard Moore, whom I wanted to meet our chairman and to meet you.
I would like to ask only one question.
Does the Senate believe that it wouldn't be best to strike all of paragraph 2 of section 3 of Senate Resolution 30, on the ground that even the use of the words “the rules of the Senate shall continue from one Congress to the next” might by implication commit us to a ruling against Vice President upon the subject of this particular section of rule XXII?
Senator CASE. It may be that that should be done, although it had been my interpre-ation that the proposers of that resolution, acting as they did shortly after the Vice President's ruling, had thought that up to that point they were merely carrying his interpretation and his view as to the constitutionality of the matter into effect. But I wouldn't certainly quarrel with the elimination of the whole sentence because I don't think it is necessary.
Senator JAVITS. That is what I wondered. Does it serve any useful purpose? I am only talking about people like myself who are advocates of this position.
Senator CASE. I don't believe it is necessary. I think the acceptance of his position involves continuity of the Senate as a body for many purposes and the continuity of its rules subject to the right of the Senate at the beginning of the session to change by majority vote. These are, I think, sound and generally accepted and I don't think we need to say so in the rules.
Senator JAVITS. Thank you very much.
Senator TALMADGE. Thank you very much, Senator Case. We appreciate your appearing. We would be happy to have you sit with us at any of these hearings if you can conveniently do so.
Senator CASE. You are very gracious. I wish I could do so, but I have another committee meeting. Thank you so much, and again thank you, Mr. Bloch.