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tion 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 legis lation. 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.
EXHIBIT]1 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 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 Ísham 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 remarks 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.
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 com1 As amended 8. Jour. 548, 59-1, May 31, 1906.
mittee, or other subject upon the Calendar except the motion to continue the consideration of a bill, resolution, report of a committee, or other subject against objection as provided in Rule VIII.
(Jefferson's Manual, Sec. XIV) 5. ? Every petition or memorial shall be signed by the petitioner or memorialist and have indorsed thereon a brief statement of its contents, and shall be presented and referred without debate. But no petition or memorial 3 or other paper signed by citizens or subjects of a foreign power shall be received, unless the same be transmitted to the Senate by the President. (Jefferson's Manual, Sec. XIX)
7. 4 The Presiding Officer may at any time lay, and it shall be in order at any for a Senator to move to lay, before the Senate, any bill or other matter sent to the Senate by the President or the House of Representatives, and any question pending at that time shall be suspended for this purpose. Any motion so made shall be determined without debate.
[Jefferson's Manual, Sec. XIVI
RULE VIII-ORDER OF BUSINESS At the conclusion of the morning business for each day, unless upon motion the Senate shall at any time otherwise order, the Senate will proceed to the consideration of the Calendar of Bills and Resolutions, and continue such consideration until 2 o'clock;; and bills and resolutions that are not objected to shall be taken up in their order, and each Senator shall be entitled to speak once and for five minutes only upon any question and the objection may be interposed at any stage of the proceedings, but upon motion the Senate may continue such consideration; and this order shall commence immediately after the call for "concurrent and other resolutions," and shall take precedence of the unfinished business and other special orders. But if the Senate shall proceed with the consideration of any matter notwithstanding an objection, the foregoing provisions touching debate shall not apply.
(Jefferson's Manual, Sec. XIV) All motions made before 2 o'clock to proceed to the consideration of any matter shall be determined without debate.
(Jefferson's Manual, Sec. XIV)
RULE IX-ORDER OF BUSINESS Immediately after the consideration of cases not objected to upon the Calendar is completed, and not later than 2 o'clock if there shall be no special orders for that time, the Calendar of General Orders shall be taken up and proceeded with in its order, beginning with the first subject on the Calendar next after the last subject disposed of in proceeding with the Calendar; and in such case the following motions shall be in order at any time as privileged motions, save as against a motion to adjourn, or to proceed to the consideration of executive business, or questions of privilege, to wit:
First. A motion to proceed to the consideration of an appropriation or revenue
Second. A motion to proceed to the consideration of any other bill on the Calendar, which motion shall not be open to amendment.
Third. A motion to pass over the pending subject, which if carried shall have the effect to leave such subject without prejudice in its place on the Calendar.
Fourth. A motion to place such subject at the foot of the Calendar.
Each of the foregoing motions shall be decided without debate and shall have precedence in the order above named, and may be submitted as in the nature and with all the rights of questions of order.
(Jefferson's Manual, Secs. XIV, XXXIII)
RULEX-SPECIAL ORDERS 2. When two or more special orders have been made for the same time, they shall have precedence according to the order in which they were severally assigned, and that order shall only be changed by direction of the Senate.
As amended S. Jour. 427, 428, 50-1, Mar. 6, 1888.
On motion by Mr. Manderson: Ordered, That when petitions and memorials are ordered printed in the Congressional Record the order shall be deemed to apply to the body of the petition only, and the names attached to said petition or memorial shall not be printed unless specially ordered by the Senate. 18. Jour. 280, 49-2. Feb. 7, 1887.)
As arnended S. Jour. 431, 48-1, Mar. 17, 1884.
d, That after to-day, unless otherwise ordered, the inorning hour shall terminate at the expiration of two hours after the meeting of the Senate. (S. Jour. 1266, 50-1, Aug. 10, 1888)
& As amended S. Jour. 442, 48-1, Mar. 19, 1884.
? And all motions to change such order, or to proceed to the consideration of other business, shall be decided without debate.
(Jefferson's Manual, Secs. XVIII, XXXIII RULE XI-OBJECTION TO READING A PAPER When the reading of a paper is called for, and objected to, it shall be determined by a vote of the Senate, without debate.
(Jefferson's Manual, Sec. XXXII]
RULE XIX-DEBATE 1. When a Senator desires to speak, he shall rise and address the Presiding Officer, and shall not proceed until he is recognized, and the Presiding Officer shall recognize the Senator who shall first address him. No Senator shall interrupt another Senator in debate without his consent, and to obtain such consent he shall first address the Presiding Officer; and no Senator shall speak more than twice upon any one question in debate on the same day without leave of the Senate, which shall be determined without debate.
(Jefferson's Manual, Secs. XVII, XXXIX] 2. 8 No Senator in debate shall, directly or indirectly, by any form of words impute to another Senator or to other Senators any conduct or motive unworthy or unbecoming a Senator.
(Jefferson's Manual, Sec. XVII]
3. No Senator in debate shall refer offensively to any State of the Union.
4. If any Senator, in speaking or otherwise, transgress the rules of the Senate, the Presiding Officer shall, or any Senator may, call him to order; and when a Senator shall be called to order he shall sit down, and not proceed without leave of the Senate, which, if granted, shall be upon motion that he be allowed to proceed in order, which motion shall be determined without debate.
(Jefferson's Manual, Sec. XVII] 5. If a Senator be called to order for words spoken in debate, upon the demand of the Senator or of any other Senator, the exceptionable words shall be taken down in writing, and read at the table for the information of the Senate.
(Jefferson's Manual, Sec. XVII)
RULE XX-QUESTIONS OF ORDER
1. A question of order may be raised at any stage of the proceedings, except when the Senate is dividing, and, unless submitted to the Senate, shall be decided by the Presiding Officer without debate, subject to an appeal to the Senate. When an appeal is taken, any subsequent question of order which may arise before the decision of such appeal shall be decided by the Presiding Officer without debate; and every appeal therefrom shall be decided at once, and without debate; and any appeal may be laid on the table without prejudice to the pending proposition, and thereupon shall be held as affirming the decision of the Presiding Officer.
(Jefferson's Manual, Sec. XXXIII)
RULE XXII-CLOTURE 2.10 Notwithstanding the provisions'of rule III or rule VI or any other rule of the Senate, except subsection 3 of rule XXII, at any time a motion signed by sixteen Senators, to bring to a close the debate upon any measure, motion, or other matter pending before the Senate, or the unfinished business, is presented to the Senate, the Presiding Officer shall at once state the motion to the Senate, and one hour after the Senate meets on the following calendar day but one, he shall lay the motion before the Senate and direct that the Secretary call the roll, and, upon the ascertainment that a quorum is present, the Presiding Officer shall, without debate, submit to the Senate by a yea-and-nay vote the question:
"Is it the sense of the Senate that the debate shall be brought to a close?"
* As amended S. Jour. 442, 48-1, Mar. 19, 1884. # As amended S Jour. 301, 57-1, Apr. 8, 1902. * As amended 8. Jour. 71, 63-2, Jan. 14, 1914. 10 As amended, 8. Jour. 173. 81-1. Mar. 17, 1949.