It further provides that debate may be limited by a majority vote of those Senators "duly chosen and sworn," namely, by 49 of the 96 Senators, 15 calendar days excluding Sundays and legal holidays— after a petition is presented by 16 Senators.

Senate Resolution 17 retains the provision of the present rule allowing each Senator 1 hour for further debate after the limitation is voted.

Senate Resolution 17 repeals section 3 of present rule 22 which provides that there may be no limitation at all on a motion to proceed to the consideration of a change in the rules of the Senate.

In effect, then, since limitation would not be invoked until after several weeks of debate, except in a national emergency, Senate Resolution 17 would permit limitation by a two-thirds vote after 2 to 3 weeks of consideration, and limitation by 49 votes after about 4 to 5 weeks of debate.

I think perhaps I should emphasize that point: that unless we had a grave situation like that of 1917, with the international situation in a highly critical condition where delay might be fatal to national security, and unless there were a small group of Senators nevertheless determined to hold out against a policy which the vast majority of the country_believed to be wise, that except in a situation such as that, no one, I am sure, would dream of presenting a cloture petition until after the debate had gone on for a considerable period of time. And assuredly the required 16 Senators could not be found to sign such a petition short of that reasonable period.

In other words, the debate would be allowed to proceed for at least 2 or 3 weeks, I think, under the general rule and practice of the Senate, before the cloture petition was even started; and then, according to Senate Resolution 17, it would require a vote of two-thirds of the Senators present and voting, 2 days after the presentation of the petition, to limit the debate. In essence, this is the original 1917 cloture rule.

Thus in practical terms you would still require a two-thirds vote after 2 to 3 weeks of consideration. Then 15 days would have to elapse after the filing of the petition before cloture could be invoked by a majority, and that would provide 4 or 5 weeks of debate, I would say, at a minimum. Then the required majority would not be a majority of those voting, but a majority of those duly chosen and sworn, or you would need 49 affirmative votes.

In other words, our purpose is to permit full discussion, which we believe to be essential, and prolonged debate, but not to permit a relatively small minority to prevent a vote from occurring. Senator JAVITS. Would the Senator yield at that point?

Senator DOUGLAS. Certainly.

Senator JAVITS. The 15 days would exclude Sundays and holidays? Senator DOUGLAS. That is right.

Senator JAVITS. So it would be more than that.

Senator DOUGLAS. That is absolutely true. It would be at the very least 17 days, 212 weeks, and might be more.

Senator JAVITS. Well, the Senator's views are very well known, and the Senator has been one of the most stalwart advocates of some revision in the Senate rules, and I would like to ask the Senator this question.

I am relatively new here, and I have been told that this effort is not a very popular one among Members of the Senate, and that it is with considerable temerity that any new Senator would undertake to deal with such a long-established practice of the Senate.

Now, the Senator has been here for a considerable number of years. Would the Senator care to make any comment upon that question as

to

Senator DOUGLAS. Yes.

Senator JAVITS (continuing). As to the inviolability of this rule 22? Senator DOUGLAS. Yes.

It will be noticed that there are 15 of us, including yourself, who are sponsors of Senate Resolution 17. Now, I understand that there are some 39 other Senators who are sponsors of other proposals to lessen the severity of rule 22. So that I would say that a majority of the Senate, so far as the sponsorship of bills is concerned, have already gone on record in support of some lightening of the present very severe restrictions on limiting debate.

Senator JAVITS. Does the Senator regard, or does not the Senator agree with me, that there is considerable imminency in this matter. now. With the civil rights bill on the calendar, we are looking right into the teeth of the filibuster?

Senator DOUGLAS. Oh, yes. This is not an academic question, and never has been an academic question, and it is a very practical question now, after Senator Ellender's statement on the radio this weekend, as reported in this morning's press.

I would like also to point out that under this proposal, Senate Resolution 17, even after cloture is invoked, each Senator is allowed an additional hour, so that we could have an additional 24 hours of debate if each Senator utilized his allowed time.

Senator JAVITS. Ninety-six hours.

Senator DOUGLAS. Pardon me, did I say 24?

Senator JAVITS. You said 24.

Senator DOUGLAS. Ninety-six hours, or 24 hours a day for 4 days if the Senate met around the clock.

Senator JAVITS. I am sorry to have interrupted you.

Senator DOUGLAS. That was my fault.

Senate Resolution 17 would thus guard the rights of minorities to full discussion. But it would make it possible after a reasonable time for the Senate to reach a vote. And the handcuffs on any future rule changes, in section 3 of present rule 22, would be stricken off. The proposal does not go as far as some advocates of majority rule have proposed. But I believe it presents a workable compromise which we should adopt.

Some people have advocated a majority cloture rule by a majority of those present and voting. We provide, even in the ultimate, for a majority of those chosen and sworn, or for a so-called constitutional majority of at least 49.

Some have thought that the majority principle should be invoked at an earlier stage in the discussion. We put it off for a longer period of time. So that I think that our proposal represents a workable compromise which the Senate should adopt.

This winter I was invited to deliver an address at Ohio State University, and I took the opportunity to prepare that address on the subject of the filibuster, in which I went into this subject at some length.

I sketched the background of our Senate experience with the filibuster and the more recent history of Senate efforts to eliminate such roadblocks from the orderly democratic procedures of the Senate in that address which I delivered at Ohio State University on March 29, 1957. This was the Walter J. Shepard memorial lecture for 1957, in which I likewise analyzed the proposals jointly sponsored by the majority and minority leaders, Senate Resolution 30, as well as the resolution which I have introduced and in support of which I am appearing today.

I pointed out briefly the serious limitations in the Knowland-Johnson resolution, namely, that all it does affirmatively is really to go back to the Walsh rule of 1917, allowing cloture to be invoked by twothirds of those present and voting instead of two-thirds of those duly chosen and sworn, and to make the corrections necessitated by the Vandenberg ruling of 1948. But negatively their resolution seeks to limit or bind the hands of any future Senate in making further rule changes. In that address I likewise spelled out in reference to our resolution, Senate Resolution 17, the way in which our resolution would permit full debate, but yet bring it within the power of the majority of the elected Members of the Senate to come to a vote after such full debate has been held.

In the interest of saving this subcommittee's time, but not to shut off any questioning that you might want to put to me, I would therefore request your permission to insert in the record of the hearings the full text of the analysis which I delivered in the address just mentioned.

I ask the committee's most careful consideration of the history and the arguments which I have set forth therein in support of Senate Resolution 17. I invite your special consideration to the appeal which I have made for early action on this crucial question.

Senator TALMADGE. Without objection, it is so ordered.

(The address referred to may be found on p. 37, following Senator Douglas' statement.)

Senator DOUGLAS. If there is any chance by the normal procedures of amending rule 22 to facilitate reasonable limitation of debatewhich I frankly doubt, because rule 22, as you know from the WherryHayden resolution, provides that there shall be no limitation of debate on a motion to proceed to the consideration of a change in the rules, and therefore, in effect, handcuffs the Senate and throws away the key to any motion to consider a change in the rules, once the Senate has been organized and has been considered to have adopted its rules-it is up to the Senate Rules Committee in the first instance to make this possible.

It largely rests with your committee first, and then with the full Senate, to determine whether reasonable changes are possible by any other method than that attempted in January 1953, and again in January 1957.

I know you gentlemen are thoroughly familiar with this problem, and I thought that instead of repeating this lecture which I once gave, a few months ago, that I would simply put it in the record and, if you cared to, you could read it or students of the problem may read it. Senator JAVITS. Mr. Chairman, I have a question or two. Senator TALMADGE. You may proceed.

Senator JAVITS. Senator Douglas, I notice what you say about doubting that we can affect the situation because of the provision of the rule.

It is a fact, however, is it not, that the Vice President indicated that he would hold that provision unconstitutional, which would bring us, probably, if he should, to an appeal from the Chair, and the possibility of a motion to lay that appeal on the table and, therefore, not a filíbuster upon that decision. At least we would come face to face with. a chance for a normal "filibuster," in quotes, in the effort to amend rule 22; would you agree with that?

Senator DOUGLAS. Well, that is a very interesting possibility. It would be very interesting to explore that. I had not considered it. Whether the Vice President can assume functions like those of a lower Federal court, when it rules on statutes, in passing on the constitutionality of a Senate rule is a most interesting issue.

Senator JAVITS. Well, the Senator. I am sure, would agree with me that no court could review the rule directly. Hence, there would be no other way in which the question of constitutionality could be raised except by ruling of the Vice President.

Senator DOUGLAS. Well, do you mean that it would pave the way for ultimate decision by the courts?

Senator JAVITS. Well, no court could decide it. No court could review a rule of the Senate as it affects the Senate directly. Courts have many, many times rejected any such authority over a coordinate branch of the Government.

Hence, the only way the question of constitutionality could be raised and decided would be on a ruling of the Vice President. I do not want to trouble the Senator on that.

Senator TALMADGE. Will the Senator yield at that point?
Senator JAVITS. Yes.

Senator TALMADGE. Does not the Constitution of the United States say that the Senate may make its own rules?

Senator DOUGLAS. Yes; it does.

Senator TALMADGE. Well then, how could anyone raise the constitutionality of a rule of the Senate except the Senate itself?

Senator DOUGLAS. Well, that is the question. Of course, the Vice President is an officer of the Senate. I am not going to pass judgment on this point of Senator Javits', because, very frankly, I had not thought of it. It is most ingenious. I would like to see it tried. Senator JAVITS. Yes.

Senator DOUGLAS. But I am not a lawyer, and I do not want now to go further into it.

I will say, however, that it is this very provision of the Constitution, namely, that "Each House may determine the rules of its proceedings," to which we, who believe that we should adopt new rules, make our appeal. As you know, we strongly believe that when the Constitution says each House, it refers to the right, not only of the House of Representatives, but of the Senate, and in each Congress, to make its rules. We believe each Senate may do this at the beginning of its first session, and that during that interregnum before it does so, general parliamentary law prevails.

And general parliamentary law everywhere provides for moving the previous question, which shuts off debate.

Senator JAVITS. Well, the Senator feels that is, then, the best way in which to attain that result?

Senator DOUGLAS. Well, I had not given this proposal as much consideration, probably, as it deserves. In fact, it had not occurred to me

that the same ruling concerning section 3 of rule XXII might be made by the Vice President in the middle of a session of Congress after the rules are considered adopted by acquiescence, as he made at the outset in January 1957. My mind had been moving in the more simple fashion that at the beginning of a session, since the Senate then proceeds to organize itself, normally the Senate should have the right to proceed to the consideration of rules, not merely to the election of officers, the appointment of committees, but to the adoption of rules. That is what the House does, and I am not going to get involved in the question as to whether the Senate is a continuing body or not. Senator JAVITS. Well, that, in practical effect, has not actually been decided by the procedures in 1953 and 1957.

Senator DOUGLAS. No; it has not been finally decided, although, as you say, in the opinion of the Vice President this year I think he quite clearly indicated that it was his personal opinion that we were

correct.

up.

Senator JAVITS. But you just did not have the votes to make it stand

Senator DOUGLAS. That is right. We had 38 plus 3 absentees, or 41. Senator JAVITS. Yes.

Senator DOUGLAS. That is a big improvement over the 21 votes we had in 1953.

Senator JAVITS. I was going to draw attention that that strength is growing, and I think it reflects a growing sentiment in the country, and if we cannot get anywhere else, I am rather hopeful that it will be successful in 1959.

Senator DOUGLAS. Well, let me say this: that the more people are aware of the issues which are involved, the more they study this question in a calm and deliberate way, I think the greater will be the support, intelligent support, for a change in the rules to make filibustering less effective.

And I want to emphasize this: Filibustering is prolonged discussion, intended to prevent a vote, and both elements are necessary. I have engaged in prolonged discussion in the Senate, but the purposewhile the purpose was to delay a vote-was to delay a vote only until the Senate and the public became more informed on the issues which were involved. It was never my purpose or the purpose of my colleagues to prevent a vote.

And that, I think, is the vital point, and that is why I believe that we should allow discussion to go for a considerable period of time before ever trying to invoke cloture.

Senator JAVITS. I thank the Senator.

Senator DOUGLAS. I thank you.

I may say the Senator from New York has been a very powerful reinforcement, not only spiritually but intellectually on this issue. Senator JAVITS. You are very kind.

Senator DOUGLAS. And he brings new tricks out of his legal briefs on almost every occasion.

Senator TALMADGE. No questions.

We thank you very much for coming, Senator.

Senator DOUGLAS. Thank you very much.

Senator TALMADGE. We are happy to have you attend any of these meetings you can.