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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

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 proposition has obviously lost whatever validity, if any, it ever had. If any Senator doubt this, let him stand for reelection before the people of his State on the proposition that he represents not them but a mystical concept which he calls the “State" or the “State of X,” as the case may be.

In any case, the "power" of a State which those opposed to liberalization of rule XXII desire to protect consists of the power of a Senator or a small group of Senators to delay or prevent altogether the Senate's taking any action on a particular issue. This is a negative power, and some would say perhaps un-American.

Many of the same people who insist on retaining rule XXII in its present form urge that the executive branch and the Supreme Court have in recent years changed the constitutional balance of government to the detriment of the Congress and the individual States. If this be true, which I do not necessarily concede, the only manner of restoring the constitutional balance that appears available to Congress and to the States is to act through Federal legislation. This would mean action by voting in the Senate. Under the present cloture rule, however, a small group of Senators (let us say, for argument's sake, under the control and domination of the White House) can block action by a filibuster and thus render the remaining Members of the Senate, and the States they represent, powerless to correct "unconstitutional evils” which may have come upon the Nation.

Thus it may be seen that, while, on the one hand, rule XXII, as now written, protects the power of individual States, on the other hand it acts also as an effective protection to a growing “centralism" (if there be such), and an effective block to corrective legislation designed to stem the onrushing Federal tide of judicial and executive encroachment on the authority, rights, and powers of the several States and the Congress.

The usefulness and effectiveness of the filibuster can be argued either way, but what is basically clear is that in a parliamentary democratic Republic which cannot function except through its National Legislature, the filibuster (and by this I mean the power of a minority by debate to prevent completely the majority from acting) as a parliamentary device should not be tolerated and no rule permitting it can be reasonably defended.

APPENDIX

EXHIBIT 31

LIMITATION OF DEBATE IN THE UNITED STATES SENATE By George B. Galloway, Senior Specialist in American Government, Legislative

Reference Service, the Library of Congress

TABLE OF CONTENTS
Preface.
Present Senate rules relating to debate.
Chronological history of efforts to limit debate in the Senate.
Outstanding Senate filibusters from 1841 to 1955.
Legislation delayed or defeated by filibusters.
Arguments for filibustering.
Arguments against filibustering.
Remedies for obstruction in the Senate.
Limitation of debate in the House of Representatives.

PREFACE

This report is in effect a revision of an earlier Public Affairs Bulletin prepared in response to the request of several Senators for an historical study of filibustering in the United States Senate and of efforts to control it. It contains the following material: 1. Present Senate rules relating to debate 2. A chronological history of efforts to limit debate in the Senate, 1789--1956. 3. A list of outstanding Senate filibusters, 1841–1955 4. Legislation delayed or defeated by filibusters—a list of 36 bills between 1865

and 1950 which were delayed or defeated by obstruction in the Senate 5. Senate votes on invoking the cloture role-a record of the 22 votes on cloture

petitions in the Senate since 1917 6. A summary of the arguments for filibustering 7. A summary of the arguments against filibustering 8. A list of remedies for obstructive tactics in the Senate which have been pro

posed by Senators in the past 9. Limitation of debate in the House of Representatives

The text of the present Standing Rules of the Senate relating to debate is taken from the current edition of the Senate Manual.

The chronological history of efforts to limit debate in the Senate since 1789 is based, for the most part, upon the Senate Journal, the Congressional Record, and the article on “Legislative History of Cloture Rules in the Senate” from the Congressional Digest for November 1926. This history sketches the principal developments in the Senate on this question during the intervening period.

The list of outstanding filibusters mentions more than 40 famous examples of this device during the past century.

The list of bills delayed or defeated by filibusters in the past, while incomplete, includes the major legislation in this category. There have been at least 36 such bills of varying degrees of importance. In addition, many appropriation bills have either been lost in the last-minute jam caused by filibusters or were talked to death because they failed to include items desired by particular Senators or because their grants were considered excessive. A list of 82 such appropriation bills that failed of passage between 1876 and 1916 appears in the Congressional Record for June 28, 1916, on pages 10152–53.

Analysis of the 22 cloture votes since 1917, when a cloture rule was first adopted, indicates that 4 petitions received the required two-thirds majority; 9 obtained a majority of the entire membership of the Senate; 15 obtained a majority of those present and voting; 6 obtained only a minority of those present and voting; and 1 resulted in a tie vote. The cloture rule of 1917 was drafted by a conference committee of 5 Democrats and 5 Republicans named by their respective party organizations. This committee stated that its purpose was to formulate a rule that would “terminate successful filibustering.”

If the purpose of the cloture rule is "to terminate successful filibustering,” experience shows that it has failed to achieve its purpose in 18 out of 22 times. Experience also shows that a majority (of the entire membership) cloture rule would have failed of such a purpose 13 out of 22 times. Experience further shows that a simple majority cloture rule would have failed to stop successful filibusters in one-third of the cases in which cloture has been invoked since 1917.

The summary of the arguments for and against filibustering indicates that there is much to be said on both sides.

Review of proposed remedies for obstruction in the Senate reveals the repetition of the same basic suggestions for more than a century. They boil down to four: majority cloture, the previous question, a rule of relevancy, and more effective enforcement of existing rules.

The principal sources of information on the limitation of debate in the Senate, used in this report, are: Bendiner, Robert., Battle of filibustering: new round opens. New York Times

magazine, September 14, 1952. Burdette, Franklin., Filibustering in the Senate (1940), 252 pp. Douglas, Paul H., The fight against the filibuster. New Republic, January 12,

1953, pp. 6–8. Furber, George P., Precedents relating to the privileges of the Senate of the

United States (1893), Senate Miscellaneous Document No. 68, 52d Congress, 2d session, "Limitation of Debate," pp. 217–230. Gilfry, Henry H., Senate Precedents, 1789–1909, pp. 334–342. Harris, Senator İsham Green. Speech in Senate reviewing movement to limit

Senate debate, 1806–91. Congressional Record, 51st Congress, 2d session,

January 22, 1891, pp. 1669-1671. Haynes, George H., The Senate of the United States (1938), vol. 1, Chapter

VIII, “Debate in the Senate.Maslow, Will., “FEPC-A case history in Parliamentary Maneuver.” University

of Chicago Law Review, June 1946, pp. 407-445. Maslow, Will., Limitation of debate in State legislatures. (In Extension of re

marks of William Benton, of Connecticut. Congressional Record (Daily edition)

(Washington), June 5, 1952, vol. 98: A3645–A3646. Rogers, Lindsay, The American Senate (1926), Chapter V. Willoughby, W. F., Principles of Legislative Organization and Administration

(1934), pp. 486–500. Congressional Digest, November 1926–February 1953. Congressional Record, passim. Control of Obstruction in Congress, Editorial Research Reports, April 4, 1935. Majority Cloture for the Senate, Editorial Research Reports, March 19, 1947. Senate Committee on Rules and Administration. Hearings and/or reports on

limitation of debate in the Senate. 80th, 81st, 82d, and 83d Congresses. Senate Journal, passim. Senate Rules and the Senate as a Continuing Body. Senate Document No. 4,

83d Congress 1st session.

This report has been prepared by George B. Galloway. Copies are available to Senators upon request.

ERNEST S. GRIFFITH, Director, Legislative Reference Service.

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PRESENT SENATE RULES RELATING TO DEBATE

RULE VII-MORNING BUSINESS

3. Until the morning business shall have been concluded, and so announced from the Chair, or until the hour of 1 o'clock has arrived, no motion to proceed to the consideration of any bill, resolution, report of a committee, or other subject upon the Calendar shall be entertained by the Presiding Officer, unless by unanimous consent; and if such consent be given, the motion shall not be subject to amendment, and shall be decided without debate upon the merits of the subject proposed to be taken up. Provided, however, That on Mondays the Calendar shall be called under Rule VIII, and during the morning hour no motion shall be entertained to proceed to the consideration of any bill, resolution, report of a com

1 As amended S. Jour. 548, 59-1, May 31, 1906.

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