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Unitarian today is because I had attempted to get the Unitarian leaders such as the president of the American Unitarian Association, Rev. Dr. Frederick Eliot, and others to cease their pronunciamentos upon political questions, which I do not feel is the task of a spiritual organization. This effort has failed, and I have not been active in the Unitarian Church consequently for about a year or two.
But, anyway, let me resume now with my statement.
Let us return to the political implications to the proposal to change Senate rule 22. The Pennsylvania State Committee of For America, being in a Northern States, does not feel directly concerned with the merits of the issue of segregation. But we are concerned about efforts to deal with the problems of race relations when they involve changes to our political customs and institutions.
We hear a lot of talk these days about democracy, and many people think that it settles the merits of an issue to say that the majority of the American people have such and such an opinion about it, and that therefore the only political problem concerned is to remove any restraint over our political customs and institutions toward the implementation of the majority opinion, through law or other coercive political measures. Such an attitude is naive, childish, unsophisticated, and irresponsible.
It is worth noting that the Founding Fathers of our country, in writing the Constitution, did not establish a plebiscitary democracy but a representative form of government. The members of the Senate are supposed to interpose their informed judgment and responsible opinion between the uninformed and irresponsible opinions of the majority in the enactment of law.
Furthermore, the American Constitution establishes a system of government dependent upon checks and balances, so that where the controversy is especially provocative and the feeling of concern of minority individuals is intense, their desires cannot be hastily overridden by a simple public majority. We must recognize that Government is based upon consent, not merely of the majority of the people, but of all the people, and that if we are going to override the intense feelings of a minority of our people on certain issues, we will destroy the necessary basis of consent of civilized government, create a spirit of rebellion and disobedience to law, and encourage social disorder. There are some doctrinaire and fanatic democratic theorists who feel that the democratic theory must be vindicated, though the heavens fall. Surely, should such fanaticism become a prevailing temperament of our times, and this great Republic should eventually be destroyed through such irresponsibility, they will have time to repent and change their opinion, but I trust that the members of this committee do not prefer to learn such a vital lesson by experience.
So we arrive therefore at this conclusion:
Has the Senate cloture rule as presently written worked harm upon the welfare of the Nation? We think not. We think that in the instances in which the filibuster has been used, or in which cloture has failed, there have been strong and intense feelings involved in which it would have been harmful to the tranquility and well-being of our Nation to have overridden, even though it should have been a minority who defeated cloture or used a filibuster. In other words, we think experience shows that the filibuster has not been used irresponsibly.
In fact, as I recall, the filibuster has even been used by some of the
individual Senators who are presently on some of these resolutions which would liberalize Senate rule XXII, and in particular I recall a certain gentleman from the State of Oregon, whose name at the moment escapes me.
I should, therefore, urge the Senate to retain rule XXII in its present form. We should not abuse our institutions merely out of a strong desire to punish the conduct of a minority with whom we may disagree. It is necessary to maintain our political institutions in such form that they can command the basic assent of not merely a majority of the American people, but of all the American people, and we cannot afford, for political purposes, to stir up contention between different groups in our country, even if we do so sanctimoniously, under the banner of democracy and civil rights.
We have had one Civil War. Is that not enough? Must we create the danger of similar hostility among the American people?
Senator JAVITS. Thank you, Mr. Green, for your testimony.
Now, the understanding which the subcommittee had was that the hearings would be closed as of today, subject to any further testimony that the subcommittee might agree to hear and subject to the testimony of any Members of the Senate who might wish to testify.
In the absence of the chairman, my colleague, the Senator from Georgia, however, I would just make the announcement that the subcommittee will stand in recess subject to the further call of the Chair.
The Chair will announce that those Senators who wish to submit written statements may do so for the record without appearing, or they may request the subcommittee to hear their testimony orally.
The understanding is that until such time as the record is actually printed or to be sent to the printer the subcommittee will do so.
The subcommittee will stand in recess.
(Whereupon, at 10:25 a. m., the subcommittee recessed, subject to the call of the chairman.)
(The statements of Senator Lyndon B. Johnson, Senator William E. Jenner, and Senator Thomas C. Hennings, Jr., subsequently received for the record, are as follows:)
STATEMENT OF Hon. LYNDON B. JOHNSON, UNITED STATES SENATOR FROM THE
STATE OF TEXAS As one of the sponsors of Senate Resolution 30, I appreciate this opportunity to place my views on the record.
We are dealing with a difficult question. It involves the rules of procedure of the Senate—and, in fairness to all, the rules should not be changed lightly and without due regard for all consequences.
I do not intend to burden the record with a lengthy review of the history behind this controversy. This committee has available to it expert testimony which will exhaust every historical and legal phase of the issue.
Basically, we are trying to find procedures which will make for greater efficiency in the operations of the Senate. At the same time, we want to be certain that the word "efficiency" does not become a euphemism for abrogating minority rights.
On this issue, it is very easy to take extreme positions.
It is obvious that both the majority and the minority have certain rights and that sometimes these rights appear to conflict. When such conflicts arise, practical solutions must be found.
The majority has a right to act after due deliberation. But this is not an unchecked right and our Constitution specifically sets forth certain acts which require more than a majority vote.
The minority has the right to free debate—and this is probably the greatest protection of them all. But this right does not carry through to the extent of permitting a minority to paralyze the processes of government.
I do not pretend to know the exact point at which minority and majority rights begin and end. I doubt whether anyone can state that point with certainty.
The best we can do is to invoke the rule of reason and try to arrive at a ground which best appeals to prudent men.
We know that a minority can frustrate the majority beyond the point of tolerance. When that happens, there can be a violent reaction which in the long run will be regretted by both the majority and the minority.
We know that majorities are temporary. This means that any majority which deprives a minority of rights today will almost certainly find itself deprived of the same rights tomorrow.
Therefore we cannot tailor the Senate rules to fit a temporary situation. Whatever we pass must be something that we can live with today, tomorrow, and through all the days to come.
I do not pretend that Senate Resolution 30 is a perfect solution to all the difficulties. I do not believe we can find perfection.
But Senate Resolution 30 meets one test which I have applied to every resolution that has been introduced. It is that I would consider it a fair and equitable procedure to follow whether I was in the majority or the minority on any piece of legislation.
I hope that throughout the debate on the Senate rules, my colleagues will engage in a philosophical exercise.
First, I hope they will imagine themselves in a majority desperately longing for the passage of a bill in a situation where they are frustrated by a minority.
Second. I hope they will imagine themselves in a minority and desperately longing for the defeat of a bill in a situation where they are outweighed by a majority.
The rule of procedure which they are willing to follow in both situations is the one which should be supported. I hope none of us is willing to allow one situation to outweigh the other.
Senate Resolution 30 is a proposal which to my mind meets the requirements. - I am willing to accept with good grace a decision of the Senate under such a procedure regardless of how I feel about any specific piece of legislation.
First, it permits cloture to be invoked by two-thirds of the Senators present and voting rather than by a constitutional two-thirds.
Second, it brings cloture into effect on an issue involving the rules of the Senatean extremely important change. It seems to me that if the Senate can cut off debate on substantive legislation, it should be able to cut off debate on the rules as well.
Third, it would recognize the permanency of the rules. I believe this is a vital principle because if we are to change the rules with every temporary shift in the majority, we would lose something basic to our liberties.
This proposal is frankly a compromise between opposing points of view. On the one hand, we have those who believe in cloture by a majority vote. I respect the motives of those who hold to this concept but I cannot agree that there is any evidence that such a drastic step is necessary.
On the other hand, we have those who believe in the right of unlimited debate. Again, I respect their motives but I cannot agree that a small minority has the right to frustrate indefinitely the right of the majority to act.
This is reasonable ground; this is prudent ground. And if the experience of the future demonstrates that it does not go far enough, we can take whatever steps are necessary.
STATEMENT OF HON. WILLIAM E. JENNER, UNITED STATES SENATOR FROM THE
STATE OF INDIANA I have participated in floor debates, sponsored cloture resolutions, and deliberated in committee meetings on this subject for many years.
As early as March 17, 1949, I participated in debate on the Senate floor in consideration of Senate Resolution 15. This is popularly known as the HaydenWherry resolution, and I favored it.
Briefly, the Hayden-Wherry resolution provided that 16 Senators could move that a vote be taken on the question of closing debate. The Presiding Officer of the Senate would put the question to the Senate, without debate, and if two-thirds of the Senators duly chosen and sworn voted in the affirmative, then debate could be closed off. Thereafter, however, each Senator would be given 1 hour to speak on the pending business. The Wherry amendment would not apply to subsection 3 of rule XXII.
This is, in effect, the rule the Senate adopted in 1949.
I appeared as a witness before the Rules Committee in 1951 in support of Senate Resolution 203, introduced by the late Senator Wherry. This resolution proposed a change in the number of votes necessary to invoke cloture from twothirds of those Senators duly chosen and sworn to two-thirds of those Senators voting. This resolution attempted to return to the original proposal of the 1949 Hayden-Wherry resolution. Senate Resolution 203 failed to garner the support it deserved and consequently the rule was left unchanged.
In 1953, after I became chairman of the Rules Committee, I introduced Senate Resolution 20 and it was reported to the Senate. I ask that a copy of this resolution be made a part of the record and printed at this point in my statement.
[S. Res. 20, 83d Cong., 1st sess., Rept. No. 268]
RESOLUTION “Resolved, That subsection 2 of rule XXII of the Standing Rules of the Senate (relating to cloture) is amended by inserting before the word 'following in the eighth line of such subsection the word 'fifth', and by striking out 'by two-thirds of the Senators duly chosen and sworn' and inserting in lieu thereof 'by two-thirds of the Senators present and voting'."
This resolution proposed two major changes in rule XXII. First, it lengthened the time limit now existing between the filing of a cloture motion and the subsequent vote thereon from 1 to 5 more intervening days. Second, it provided that cloture could be invoked by two-thirds of those Senators present and voting instead of two-thirds of the Senate duly chosen and sworn.
Finally, I am cosponsor of Senate Resolution 30 which is now before you for consideration. It provides, among other things, that cloture can be invoked by two-thirds of those Senator present and voting instead of two-thirds of those Senators duly chosen and sworn.
I believe, Mr. Chairman, my record is both clear and consistent in favoring the aforementioned change in rule XXII. At the same time my record is also clear and consistent in opposing all proposals favoring a majority-vote cloture rule. Both a majority cloture rule and completely unlimited debate (no cloture rule whatever) are extremist positions which the Senate must avoid at all times.
I wish to set forth at this point citations of my activities and position on cloture. See hearings before the Rules Committee entitled “Limitation on Debate in the Senate, 1951," pages 184–194; Senate Report No. 1256, 82d Congress, 2d session, entitled “Amending the Cloture Rule With Respect to the Number Required for Adoption of a Cloture Motion”; and Senate Report No. 268, 83d Congress, 1st session, entitled “Limitation of Debate."
On January 4, 1957, I made a statement on the Senate floor which states comprehensively my position and reasons therefor. I ask permission to insert that statement in the record at this point.
[From the Congressional Record, January 4, 1957, pp. 112-113) "Mr. JENNER. Mr. President, I rise today to advocate freedom of speech. That may sound strange to newcomers in this body; but adoption of the proposals advanced by those who desire a majority-rule cloture procedure would, in fact, put an end to freedom of speech in the Senate.
"Today I am in a unique position, because I favor civil-rights legislation, but I wish to have rule 22 amended in accordance with the amendment I submitted on January 7, 1953. That amendment would change the present rule 22 so as to require the affirmative votes of two-thirds of the Senators present and voting, and also to provide for 5 days' notice on the filing of a cloture petition. In other words, I think that rule 22 as it now exists should be modified; but, on the other hand, I do not think the modification should go to the extent of destroying freedom of speech in the Senate by letting a majority gag a minority.
“Mr. President, I wish to give a little of the history regarding the previous question.
"In 1816, the House of Representatives debated the issue of free debate. They adopted a strict cloture by a perversion of the meaning of the previous question.
"Mr. Gaston, in speaking in favor of free debate, pointed out that the original purpose of the previous question was to postpone one subject in order to take up another. In other words, it was simply a demand that the House should first pronounce whether it was then expedient to decide the question under debate or to turn temporarily to other business.
"The Continental Congress followed this procedure, and used the previous question properly.
"However, through the years following the Continental Congress the meaning of the previous question changed.
“This was the reason for the debate in 1816. Mr. Gaston pointed out at that time that the House, in attempting to change the historic and true meaning of the previous question, was abandoning true principles. It is interesting to note to which group of Members he referred. I quote:
“ 'This, sir, was in 1798, in the days which have been falsely called the days of terror; but which I feel a pride in showing were the days of correct principles. We had not then discovered how to construe away the rights of the people or their Representatives. This illustrious discovery was reserved for the genius of modern republicanism.'
"This view was further substantiated by the elder Senator Henry Cabot Lodge, who in 1893 said:
"'There never has been in the Senate any rule which enabled the majority to close debate or compel a vote. The previous question, which existed in the earliest years, and was abandoned in 1806, was the previous question of England, and not that with which everyone is familiar today in our House of Representatives. It was not in practice a form of cloture, and it is therefore correct to say that the power of closing debate in the modern sense has never existed in the Senate.'
"It would be a sad day for America if the rights of the free debate in the Senate were abolished. Surely, the Founding Fathers, many of whom were active in Congress, never intended that the Senate should prohibit unlimited debate.
"Through the years the Senate has debated the pros and cons of unlimited debate. It is curious to note that for over 125 years, or from 1789 to 1917, the Senate had no cloture rules at all. During that time the parade of great men to the Senate continued, and most of them were firm advocates of free debate. Since 1917 we have had a two-thirds requirement in one form or another.
"Today I should like to see the rule amended so as to require the favorable votes of two-thirds of the Senators present and voting, instead of the favorable votes of two-thirds of a constitutional quorum.
“I do not believe that our civil-rights legislation should be tied to the right of free debate. The principle of free debate is, in itself .one of the most important foundations of American liberty. Our civil-rights legislation should be introduced and passed. I think that ultimately it will be, and I believe it will be at this session.
“As a supporter of civil-rights measures which have founderent and died in the Senate, I know full well that there have bren abuses of the right of free dehate. But, Mr. President, the end nerer justified the means. Therefore, the right of free dehate should not be destroyed merely to bring about the passage of certain proposed legislation.
"The Senate should be on guard against a strategy 1,000 years old. I refer to those who raise a great and perhaps valid moral issne, on the one hand, and then relate it to the desired goal, on the other hand. Then the campaign is waged almost solely on the moral issue. The real goal is thus ohscured. In the instant case the desired end and the real reason why some raise the civil-rights issue is to impose a majority rule on the Senate, not only for civil-rights legislation, but for all legislation to come.
“I say that even if civil-rights legislation is enacted today, those opponents of free debate will continue to attack it until it is destroyed. To many people, civil rights is a convenient tool to be user to achieve a desired end.
"The current rules of the Senate provide adequate remedies. Besides the wellknown rule 22, Senators may :
“R-quire speakers to stand and not sit or walk around.
"Rise to a point of order against quorum calls where no business has intervened since a rollcall disclosed the presence of a quorum.
"Object to reading a paper, under rule 11.