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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.
“Enforce rule 19.
"It is a well-known rule in every court that petitioners must exhaust all available remedies before filing an appeal. I believe the same principle applies here.
"I like to think of Congress as trustees to preserve what the creators of the trust founded. The terms of this trust are to be found in the Constitution of the United States. The beneficiaries are the young people and unborn children of the future. Our duties as trustees are set forth in the Constitution.
"Under its terms, the Senate was created to insure equality among the several States. The proposition which many of the original States demanded, and got; namely, equality of representation in the form of a United States Senate, is not even debatable. A Senator does not represent population or area, but, rather, a State.
“Any limitation on debate impairs the equal representation of the States in the Senate. However, if we keep the present rules, each State will be adequately represented. But it is my firm belief that if the majority rule advocates prevail, the State would, in effect, be denied equal suffrage.
"Article V of the Constitution provides that “no State, without its consent, shall be deprived of its equal suffrage in the Senate.” What right have we to determine to do precisely what the Constitution forbids? Where is Indiana's equal suffrage if a majority in the Senate decides that it has neither the time nor inclination to hear either of her Senators? This right to speak and be heard is the one means we have to protect and perpetuate this equality.
“I now turn to another part of the Constitution. No citizen shall be deprived of life, liberty, or property, without due process of law. Furthermore, every citizen in the country is recognized as possessing the right, either by himself or peaceably assembled with others, to petition the Government for a redress of grievances.
“Citizens make known these grievances and desires through their trustees, or Senators. Because of our right to speak on this floor, these petitions are publicized, and many times laws are passed redressing their grievances. I believe that to refuse to receive petitions and redress grievances is an act of tyranny prohibited by the Constitution. Free debate on the Senate floor insures every citizen the right of petition and rightful redress. I assert, Mr. President, that the American people have a constitutional right to be heard before their money is voted or their liberty restrained, and we are their legal trustees. I believe that the entire Congress cannot, by law, deprive them of their constitutional franchise, the right to petition for redress of grievances. The Senate is not competent to close the mouth through which the petitioners speak.
“Mr. President, our Founding Fathers believed that free debate was so important that they granted immunity to Senators and Representatives from libel actions. The privilege of a Senator to declare the will, to explain the views, to make known the grievances, and to advance the interests of his constituents and State, is no less precious now. This right would be narrowed unreasonably and I believe destroyed, if a majority rule were adopted.
“The concept of majority rule is noble. The concept of free debate is no less noble.
"The advocates of majority rule allege that free debate has many evils, primarily, that it slows legislation.
"Mr. President, majority rule, instead of being sanctioned by the constitutional authority which the Senate possesses of making rules to govern its proceedings, is at variance with the very object for the attainment of which this power was delegated.
"The only purpose of rules in any deliberative body is to protect the minority against the potential tyranny of the majority. That was why the Senate was delegated this great and valuable power. To me the intent is clear. A second reason is that this right enforces the separation of powers doctrine.
“The PRESIDING OFFICER. The Senator has used the time allotted to him. “Mr. JENNER. May I have 5 more minutes ?
“Mr. JOHNSON of Texas. Mr. President, I wish to say that all the time we have on this side has been allotted, but I shall take some time from that allotted to another Senator. Would the Senator be willing to take 3 minutes?
"Mr. JENNER. I have about a page and a half of my manuscript remaining. “Mr. JOHNSON of Texas. I yield 3 minutes to the Senator from Indiana.
“The PRESIDING OFFICER. The Senator from Indiana is recognized for 3 minutes.
*Mr. JENNER. Mr. President, the inevitable question arises as to what safeguards a minority has to be heard under majority rule. Some advocates propose a 15-day waiting period between the filing of a cloture motion and the imposition of cloture. This is no assurance whatever. Who is to guarantee that Indiana will be heard within this 15-day period? Others propose a 1-hour period for each Senator. Can such important matters as foreign aid, the Taft-Hartley law, and education be covered adequately in 1 hour? The advocates of majority rule assure us that a minority has a right to be heard, but the only safeguard so far advanced is a promise nothing more. Mr. President, that can never be called a right which owes its existence to a favor.
“One evil of majority rule which has not been emphasized enough is its susceptibility to 'bossism.'
"The late Senator Pat McCarran said:
" "There is no doubt in my mind that legislative independence disappears in exact proportion to the diminishing of deliberation. Cloture is the foundation of machine rule. Once that foundation is established, the mechanics of machine rule will become very simple. One or two or a handful of bosses then will be able easily to attain and exercise supremacy. They can use the party-caucus system, employing the principle of control through a majority of a majority, which is inevitably a minority of the whole membership. The "bosses" in such circumstances would have at their fingertips many different kinds of coercion. They would be in a position to take care of subservient Members primarily interested in local legislation, and to dispense patronage favors to those who prove faithful. Such a machine, if established, can be manipulated from the outside by whatever political or economic interests may be dominant in the administrative field. There is already considerable influence wielded by pressure groups. I cannot become a party to a move which will increase the power of lobbyists.'
"Majority control might be used in combinations such as those which are geographical, industrial, or financial, with one group of States silencing another.
"The advocates of majority rule forget that the Senate has an informing function as well as a legislating one. The House can pass bills so fast the people do not even know they are being considered.
"I cite, for example, a bill passed by the House which proposed to put railway employees in the Army and put guns at their backs to make them work ; but the Senate, under the rule of unlimited debate, stopped such a bill from becoming legislation.
"If measures are passed rapidly, without due consideration, public opinion has no chance to make itself known. The prolonged debates on the natural-gas bill in the Senate were designed, in part, to educate the people.
"We may have a duty to legislate, but we also have a duty to inform and deliberate.
"In the past quarter century we have seen a phenomenal growth in the power of the executive branch. If this continues at such a fast pace, our system of checks and balances will be destroyed. One of the main bulwarks against this growing power is free debate in the Senate.
"Free debate has deterred power-seeking executives from seeking legislation which is too dictatorial. So long as there is free debate, men of courage and understanding will rise to defend against potential dictators.
"It is contended that the Senate would be paralyzed in times of emergency. I do not believe that if America were ever in danger, 64 Senators would not invoke cloture under our present rule. Furthermore, we have gone through many crises in the past one hundred and fifty-odd years, and the Government has never before been rendered helpless by freedom of debate.
"The Senate today is one place where, no matter what else may exist, there is still a chance to be heard, an opportunity to speak, the duty to examine, and the obligation to protect. It is one of the few refuges of democracy. Minorities have an illustrious past, full of suffering, torture, smear, and even death. Jesus Christ was killed by a majority ; Columbus was smeared; and Christians have been tortured. Had the United States Senate existed during those trying times, I am sure these people would have found an advocate. Nowhere else can any political, social, or religious group, finding itself under sustained attack, now receive a better refuge.”
All deliberations on the issue of cloture should be conducted with both the philosophy and intent of the Constitution firmly in mind. In my judgment all the provisions which relate to this subject provide for the fullest possible debate.
For example, article I, section 3, provides that each State is entitled to two Senators. These men represent the State from which they are elected. Surely, this necessarily implies the right of debate and speech on the Senate floor. This same point is reinforced in article V which provides that "no State, without its consent, shall be deprived of its equal suffrage in the Senate." I said, in my statement, that the right to speak and be heard is the one means we have to protect and perpetuate this equality. In other words, the right to speak and present the issues fully and in detail is inherent in the legislative process and protected by the Constitution.
The first amendment provides for the right of peaceable assembly and the coordinate right to petition the Government for a redress of grievances. Practically speaking this right is available only so long as the United States Senate remains open to hear these grievances. Strict limitation on debate would severely narrow the meaning of the first amendment. I seriously question the right of the Senate to "close the mouth through which the petitioners speak."
In general, then, I think the philosophy of the Constitution is implicit in advocating a broad right of debate and speech in the Senate.
I turn now to a point which few witnesses have discussed. My statement on the Senate floor included a quotation from the late Senator Pat McCarran. He said, among other things, that "cloture is the foundation of machine rule." Further, he made the significant point that “legislative independence disappears in exact proportions to the diminishing of deliberation." The late Senator, who himself represented legislative independence at its finest, skillfully and precisely outlined how cloture can lead to manipulation from both within the legislature and without by a small selfish minority. The truth is that in many cases cloture is the tool of the minority and is the exact opposite of even majority rule.
I do not think this point can be overemphasized. It is a real danger to be sure, and I hope adequate and open discussion of it will follow.
I wish to make one final point herein and then will allow my statement of January 4, 1957, to set forth the details.
The Senate has more than a mere duty to legislate. It also has the duty to inform the people of the issues being discussed and possible dangers to their freedoms and rights.
The informative process by its very nature takes time. You cannot educate people who are busy with everyday affairs, family life, and business in a day or even 2 or 3 weeks. I spend full time in the field of Government and I see issues arising every day which are complicated and need lengthy explanation.
Time cures many evils, and when the people are informed about an issue they will voice their feelings. In this way the legislative process will meet the desires of the people with a particularly rare in the modern world.
Time also is the means which the legislative branch uses to protect the delicate theory of checks and balances. Historically, some groups are always working to destroy freedom. This is most often accomplished by perversion of the executive branch functions. I firmly believe that the right to free debate acts as a deterrent to the introduction of tyrannical legislation which would strengthen the executive branch to the extent that the balance between branches is overthrown.
You have a rather somber and difficult task. But, I think if you keep in mind that the United States Senate has been the historical champion of the rights of man, and that the giants of the Senate in the past-Clay, Calhoun, Webster, Taft, La Follette, Borah, and others—were unanimously in favor of free debate, your decision will be in favor of the two-thirds principle and not majority cloture.
When issues involving the very integrity and strength of the Senate arise, I am always reminded of Benjamin Franklin's answer to the question, what kind of Government do we have. He said, “You have a Republic, if you can keep it.” Free debate is the foundation of free government and a substantial answer to Franklin's historic challenge.
STATEMENT OF HON. THOMAS C. HENNINGS, JR., UNITED STATES SENATOR FROM
THE STATE OF MISSOURI
I am grateful to the members of this special subcommittee for the opportunity to present my views on the proposed changes to rule XXII of the Standing Rules of the Senate.
I joined 14 other Senators in jointly sponsoring Senate Resolution 17, introduced in the Senate by Senator Paul Douglas of Illinois in January of this year.