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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 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 filibuster 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
I do not want to trouble the Senator on that.
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.
Senator Javits. But you just did not have the votes to make it stand up.
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.
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.
Senator TALMADGE. We are happy to have you attend any of these meetings you can.
Senator DOUGLAS. Thank you. You are very courteous.
May I ask permission to have inserted in these hearings, following the address which I gave on the filibuster, certain editorials from a number of representative newspapers in the country in January of this year and shortly before when this issue was raised ?
Senator TALMADGE. Without objection, so ordered.
Senator DOUGLAS. And I would also like to ask permission, if I may, to insert in the record the opinion of the Vice President on this issue.
Senator TALMADGE. Without objection, so ordered.
(Senator Douglas' address at Ohio State University, the editorials, and the opinion of the Vice President referred to are as follows:) [The Walter J. Shepard Memorial Lecture for 1957, Ohio State University, Columbus,
Ohio, March 29, 1957)
THE FILIBUSTER AND How To CURE IT
By Senator Paul H. Douglas* Were this a century ago, I would be defining a filibuster as an irregular military adventure or hostile expedition launched by citizens of one country against the government of another with which the first nation was at peace. To illustrate this definition, I would have given the example of William Walker who conducted various freebooting raids in Nicaragua with the purpose of overthrowing that Government and installing himself as dictator. His exploits and those of numerous others were chronicled 40 years ago by W. 0. Scroggs in his lively book, Filibusters and Financiers.
This practice of filibusters continued to some degree in the latter part of the 19th century and on into the 20th-the most celebrated of those later military soldiers of fortune being the once well-known general, Lee Christmas.
But with the passage of time, the term "filibuster" has taken on another meaning, applicable to legislative halls and not to the fields of irregular battle. the 19th century and on into the 20th-the most celebrated of those later milllonged discussion of a bill which is intended to prevent a vote.
Both elements of this definition are crucial. The discussion must be prolonged-at least, in relation to the time available 2_and the purpose must be to prevent a vote from occurring. It is, consequently, a device whereby a minority tries to prevent the majority from expressing its will in legislation by interminable talk and debate so that the majority will become tired out and, from fatigue or under the pressure of other business, will give up and lay the pending measure aside.
Mere lengthy discussion is, therefore, not in itself a sure mark of a filibuster. In 1954, for example, I spoke for 3 days against the offshore oil bill and, in 1956, for 4 days against the natural gas bill. In each case, with my colleagues of the so-called liberal group, we kept the discussion going for approximately a month. We were, therefore, accused of carrying out a filibuster, and when much the same group has attempted to curb the institution of the filibuster, we have been labeled as hypocrites by a portion of the hostile press.
But while we were engaging in prolonged discussion intended to educate both the Senate and the country on the facts and principles of complicated problems, we were not seeking to prevent a vote from being taken. We believed that, in these cases, many of our colleagues were not fully acquainted with the real issues which were at stake. And even more, we believed that the public was in the
* I am deeply indebted to my associate, Frank W. McCulloch, for aid in the preparation of this lecture.
1 An even earlier use of this term was to designate the freebooters on the Spanish Main who waylaid the galleons returning from the New World and stripped them of their treasure. These freebooters or filibusterers were mainly, although not exclusively, English, and of these Sir Henry Morgan was perhaps the most famous. In 20th century parlance they were "hijackers" of bullion
2 Thus toward the conclusion of a legislative session the filibuster need not be so prolonged in order to be effective.
beginning relatively ignorant about the matter, and most of the press were at worst-either hostile to what we believed to be the public interest or—at bestrelatively indifferent to it. A long discussion was needed to pound the issues home and to dramatize them. In such a struggle, stunts such as Senator Morse's record breaking 221/2-hour speech, delivered without sitting down or leaving the Chamber, served their turn in breaking through the crust of indifference and centering attention upon the problem.
But in all these cases, such as the natural gas fights of 1950 and 1956, the offshore oil bill of 1954 and the atomic energy struggle of the latter year, there was no effort on the part of the liberal group to prevent a vote from being ultimately reached. We were all willing to abide by the decision of the majority as expressed in a vote, but we wished to have some voice in determining when that vote was to be taken. Public opinion in a democracy is ultimately decisive, but it takes time, and upon occasion, drama, to stimulate and educate public opinion. We could feel both legislative and public support were rising in all of these instances as we prolonged the debate, and save for rare exceptions we tried to talk germanely during the entire period of debate.
Voting ultimately did come on these measures, and on each of them we were beaten at the moment. But the popular feeling was so deep that in two of those cases, namely, the gas bill of 1950 and its companion measure of 1956, a Presidential veto followed. In each case, we had developed sufficient legislative strength so that the necessary two-thirds vote required to override the veto could not be obtained and the veto, therefore, stood. And in the case of the offshore oil bill, our debate compelled the proponents to reduce substantially the extent of the surrender to the coastal States by vesting in the Federal Government the ownership of the outer continental shelf beyond the 3 and 10 mile limits. These oil, gas, and sulphur deposits are now proving to be very valuable. Our prolonged discussion therefore played its part in saving these resources for the people of the Nation. . The value of full discussion is thus clear. I practice it. I would defend the right of all other Senators to do likewise.
But the distinction between using this prolonged debate to inform the Senate and the public and thus influence the final vote, on the one hand, and using it to prevent a vote, on the other hand, is also clear. Some use the term “filibuster" loosely to apply to all long debate. I believe it properly applies only to such debate as is aimed at blocking a vote. This is the sense in which I use it. This is the parliamentary device which I am discussing here, and which some of us in the Senate seek to limit in order to restore majority rule. This is the road block which, unless removed, threatens to stop the Congress from meaning. ful legislation to protect equality of opportunity for millions of our citizens. This is the anachronism which unless changed will perpetuate the incapacity of the legislative branch of our government to meet certain urgent needs of the present day.
The possibility of filibustering in the House has by now been reduced to very narrow limits. It is in the Senate that this practice now persists. This is primarily because each bill which comes before the House is preceded by a rule recommended by the Rules Committee which prescribes the conduct of the debate, limits the time allowed, and lays down what amendments, if any, are permitted to be voted on. This means that once a measure is before the House, a decision one way or another is virtually certain to be reached fairly quickly. The former method of filibustering in the House, under which one group called for repeated quorums and then absented themselves on the call, was broken in 1890 when Speaker Reed reserved to himself the right to count Members as present even though they did not answer to their names. Repeated quorum calls are, however, still occasionally used in the House to delay and, in the closing hours of a session, sometimes to sidetrack the passage of a bill.
But it is still true that the filibuster is almost exclusively a senatorial insti. tution. This is so because except for the provisions of rule XXII of the Senate, a Senator may speak at any time, on any subject, for as long as he wishes or is physically or nervously able to endure. This right of almost unlimited debate leads to a much more careful consideration of important legislation than the House can give. But it also permits the filibuster-where a vigorous minority can by prolonged and interminable debate prevent the will of the majority from being finally effective.