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“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.
UNIVERSITY OF MICHIGAN LIBRARIES
As the members of this subcommittee know, several measures that would change various provisions of rule XXII were introduced early in this session of the Congress. I shall not burden the subcommittee by a detailed analysis of each of these resolutions but shall briefly summarize Senate Resolution 17 and describe the other resolutions as occasion arises in the course of my discussion
Under the present provisions of rule XXII, which was last changed in 1949, debate in the Senate may not be limited or brought to an end unless 64 Senators ("two-thirds of the Senators duly chosen and sworn") vote in favor of such a move. The history of rule XXII has clearly demonstrated that it is extremely difficult, if not practically impossible, to stop a filibuster if the legislation under debate is overwhelmingly opposed by an articulate opposition in a substantial section of the country.
Senate Resolution 17 provides that debate may be limited by a vote of twothirds of the Senators present and voting 2 days after 16 Senators have filed a petition for this purpose.
Senate Resolution 17 further provides that 15 days, exclusive of Sundays and holidays, after the presentation to the Senate of a petition signed by 16 Senators, the Senate by a majority vote of those “duly chosen and sworn" (49 of the 96 Senators) may also impose cloture.
Senate Resolution 17, in addition, retains the present provision allowing each Senator 1 hour for further debate after the limitation is voted.
Some resolutions introduced provide, with variations as to the grace period prior to the effective date of cloture, that two-thirds of the Senators present and voting may impose cloture.
Other resolutions provide that a majority of those Senators present and voting may impose cloture.
In considering what changes, if any, to make in the rule governing Senate debate, it is well to have in mind the results we are seeking.
Everyone agrees that as a parliamentary body the United States Senate must have reasonable rules and orderly procedure. Differences naturally arise as to what are reasonable rules and what constitutes orderly procedure. Everyone, I am sure, will agree that the Rules of the Senate should provide for an adequate opportunity to every Senator to express himself fully on each issue coming before the Senate. I take it also as axiomatic that, with proper allowance to each Senator to express himself fully, the Senate as a body should be permitted, if it so chooses, to reach a decision by means of a vote on each issue coming before it.
The basic aim of a filibuster, as distinguished from a full or extended or even a tedious and repetitive debate, is to prevent Senate action through a vote, by talking for a prolonged period in relation to the time available to the Senate in which to act. On occasion this may mean a very short time, and on other occasions it may mean a very long time.
I have studied the arguments advanced over the years by those persons opposed to suggestions for making cloture easier in the Senate. These arguments in general are concerned with "States rights," with maintaining the power of individual States, with the dignity of the Senate as the "greatest deliberative body," and with "free debate.” I shall attempt to touch on these and other points in my discussion.
Those opposed to a change in the cloture rule to allow limitation on debate to be more easily imposed must perforce take the position that a group of Senators by use of a filibuster should have the right absolutely to prevent the Senate as a body from taking action (in the only way it can-by voting) unless and until 64 Senators are present and duly vote in favor of cloture under rule XXII as it is presently written.
Now, to get 64 Senators present at one time and in favor of imposing cloture is extremely difficult if not practically impossible, as in fact we know from the Senate's experience with cloture motions in the past.
This means that those who are presently opposed to liberalizing the cloture rule in any respect are, practically speaking, in favor of letting a minoritybut substantial number—of Senators prevent the Senate from acting under any circumstances if they so choose.
The opponents of change in the cloture rule base their case primarily on what they refer to as the principle of free debate. On examination, this term, "free debate," as it is used by the opponents of change, while very vague, seems to mean full and adequate debate.
No responsible opponent to liberalizing rule XXII has said that there should not be some limitation on debate. No one (this year, at least) has advocated
a rule or procedure more difficult for achieving cloture than the present rule XXII. They merely stand on rule XXII as it now reads. As I have said, however, for all practical purposes rule XXII does not now permit a cloture to be imposed when a substantial number of Senators—such as those in opposition to civil rights legislation-are opposed to placing a limitation on debate. Those persons really against any limitation on debate can with complete safety say they believe in some reasonable cloture rule such as is provided in rule XXII, because they know that in this way they can appear sweetly reasonable and at the same time never be really threatened with Senate action in a field they do not desire cultivated. In other words, they can have their cake and eat it, too.
But, forgetting for the moment the peculiarities of rule XXII as it now reads, let us formulate in the abstract, if you like, what would seem to be a sound and workable rule. After all, a rule ostensibly designed to permit Senators to take action but containing a built-in automatic brake is a self-defeating rule and in reality a nullity. So let us see if we can agree on a rule, temperate and reasonable, providing protection to minorities by full and adequate debate and which at the same time can actually work.
The heart of the problem is, How long should Senators be permitted to talk on a given issue before the Senate may bring the matter to a vote? What would be a reasonable time for debate would, I am sure, vary greatly with the kind and importance of the issue involved in each case. No reasonable man will demand that Senators should be permitted to talk without limit in a wanton and capricious manner. No one will contend that a Senator or a group of Senators should be allowed to prevent a vote by merely talking continuously for days or weeks on end.
The argument arises each time as to what is a reasonable as distinguished from a capricious length of time to spend discussing or debating a subject. Surely if every Senator interested were afforded 8 to 16 hours in which to speak, this would seem to be adequate time in which to cover almost any subject coming before the Senate. This is more time than most trial lawyers have used in their arguments before juries. It is a longer time than lawyers are allowed, or would want, to present a difficult case to the United States Supreme Court. Senate Resolution 17, except in the emergency situation above explained, requiring the support of two-thirds of the Senators present and voting, would most certainly provide this much or much more time before a vote would be taken.
We may be assured that adequate time for debate would be provided under Senate Resolution 17 when we remember that it is most difficult to get a cloture petition signed by even 16 Senators, much less voted by 49. A debate must first degenerate into a filibuster and the discussion on the merits must have been exhausted before 49 Senators would agree to impose cloture. The history of the Senate shows this clearly.
One of the arguments often used against limitation of debate in the Senate is the statement that the Founding Fathers did not use cloture in the Continental Congress nor in shaping the Constitution during debates at the Convention of 1787. The facts are to the contrary. The rules of both the Continental Congress and the Constitutional Convention provided for closing debate by the use of the “previous question.” In addition, this was the rule in the Senate from 1789 to 1806. From these facts we can conclude that our Founding Fathers intended that a majority of the Senate could impose cloture at any time. The Founding Fathers had faith in the innate fairness of Senators to permit adequate debate. The Founding Fathers never intended that a minority of the Senate should be permitted to prevent action by means of a filibuster. It is well to remember that no one filibustered in the Constitutional Convention, even though the debate was at times heated. The delegates to the Convention could have gone further than filibuster; they could have walked out and left the Convention, but they did not. They stayed, debated heatedly, and reached compromises permitting action.
Another argument heard is that only in the Senate are individual States, as distinguished from the people in such individual States, represented in the Federal Legislature, as ambassadors so to speak; and that a liberalization of the cloture rule would lessen and dilute the power of individual States.
Originally and until changed by the 17th amendment, the Constitution provided for the election of Senators by the State legislatures. There was, therefore, prior to the 17th amendment, more support perhaps for the idea that Senators represented the individual States rather than the people in them. Ever since the people have been electing Senators directly, however, the proposi