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after the vote to bring the debate to a close, unless the same has been presented and read prior to that time. No dilatory motion, or dilatory amendment, or amendment not germane shall be in order. Points of order, including questions of relevancy, and appeals from the decision of the Presiding Officer, shall be decided without debate."

When the Senate rules were revised in 1806, the right to move the "previous question" and thus choke off debate summarily was omitted. Until 1917 every attempt to limit debate failed. Rule XXII was adopted in that year. Under it, 16 Senators at any time can file a motion to cut off the discussion of any pending measure. The motion must be voted on not less than 2 days later. If it is approved by a two-thirds vote, debate will come to an end, after each Member has been given the opportunity to speak for not more than 1 hour on the pending question. When such a closure has been approved, amendments to the bill under consideration can be made only by unanimous consent, and dilatory motions are out of order.

Since rule XXII was adopted, it is inaccurate to speak of "unlimited debate** in the Senate, for the right may be limited at any time by invoking rule XXII. The question before us now is, therefore, whether the Senate should change the rule and make closure easier and speedier.

There are, of course, many ways in which rule XXII could be changed for this purpose. The "previous question" rule of the House of Representatives (rule XVII) could be substituted in toto for Senate Rule XXII; the number of signatures required for the motion under present rule XXII could be reduced ; the 1hour speech limit could be shortened; the vote of a majority of the Senate could be substituted for the present two-thirds vote requirement. All of these suggestions appear to be based on the premise that once a "majority” is set upon the passage of a measure, the “minority" has no longer any right or privilege to delay or impede the imposition of the "majority will."

My opposition to these proposals is not based on a view of the merits or demerits of any particular legislation which may now be before the Senate. I think the question of further limitation on freedom of debate in the Senate ought not to be obscured or prejudiced by a consideration of the effect the proposed changes may or may not have on the speedier enactment of any pending bill. The question should be lifted to a more serious level and considered in the full light of basic principles and philosophies of free speech, the true constitutional function of the Senate, and, finally, in the full light of what American Federal Government has become, as a matter of political fact, in our time.

There is no plainer principle of our constitutional law than this that the Constitution does not rest upon the "sacred doctrine" of "majority rule." I do not know that any political philosopher has ever offered a solution of the conflict between “majority will" and "minority rights" that will completely satisfy every. body. Struggling with the problem, our Founding Fathers, in drafting the Constitution, departed again and again and again from the "majority" principle. The devices they adopted were designed at least to "slow down" those who, simply because, by a count of votes, they had "one more than half," threatened to ride roughshod over the rights of those who, by a similar count, had, unfortunately. "one less than half." True, a majority can pass ordinary legislation in the House and Senate. True, in every popular government there must come a time when the will of the majority will prevail over the will of the minority. But all through the debates in the Constitutional Convention and all through the Federalist papers we note the constant concern of the Founding Fathers with the perennial problem of free government-how to prevent by written constitutional restraints and limitations the ruthlessness of a temporary majority from impairing the rights of the minority.

Can a majority of the Senate ratify a treaty? Can a majority of the Honse and Senate override a Presidential veto? Can a majority propose a constitutional amendment? The Constitution says "No." And every one of the provisions of the sacred Bill of Rights is a constant "Thou shalt not" to any majority in Congress, however great. Those, then, who rest their claim for changing rule XXII to sweep aside obnoxious or obstructive minorities, on the “sacred constitutional rule of the majority," are invoking something that does not exist in the deeper philosophy of the Constitution. That philosophy is the other way around-majorities ought to be limited, slowed down, not speeded on their way. The Constitution, in the processes it sets up, assumes over and over again that there should be an appeal from "Philip drunk to Philip sober." It is my conviction that even rule XXII, with its limited restraint upon unlimited debate in the Senate, is of a piece with this basic, underlying, constitutional, political philosophy and should not now be abandoned.

It is clear to students of our constitutional history that the fathers of the Republic in providing for a Congress of two Houses did not design the Senate to be a carbon copy of the House. The very principle of organization in the two Houses is different. The American Republic is a Union of States, and, above all else, the peculiar organization, structure, and functions of the Senate are intended to keep this constitutional fact before us. It is to be expected that the rules of the two Houses would in the course of time come to be different. In 1841 the rules of the House imposed the restraint that no Member should occupy more than 1 hour in debate on any question in the House or in the Committee of the Whole. Indeed, a Member of the Senate, speaking of this House rule at the time, said that it was “the largest limitation upon the freedom of debate which any deliberative assembly ever imposed upon itself, and presents an eminent instance of permanent injury done to free institutions in order to get rid of a temporary annoyance.” Thus spoke Senator Thomas Hart Benton, of Missouri, at a time when the Senate had already been maintaining for 35 years its cherished position as the forum of the Republic in which any issue was guaranteed free consideration and could not be smothered by a motion for the previous question nor by an arbitrary time limit on speeches from the floor.

I am not now addressing myself to the peculiar problems of the House with its 435 Members, nor to the question whether the House rules which so drastically cut debate may not be a pragmatic necessity. The House rules, based on House conditions and circumstances, have no relevancy in considering what should be done in the Senate, which the Constitution makes so essentially different from the House in organization, representation, and functions. I am opposing the virtual ending of free debate in the Senate such as is proposed in the measures to smooth the way for swifter, easier cloture under rule XXII because I believe there should be at least one legislative forum still left, at least relatively free for free debate-one forum still free in which a menaced minority can still make its appeal to the sober second thoughts of the people of the States which make up our Federal Union. Once assimilate the rules of the Senate to those of the House in respect of freedom of debate and discussion and you begin to give away one of the main rationalizations of our bicameral system. In fact, if the proponents of the relaxation of rule XXII wish to be completely logical in working from their assumed premise of “the sacred rule of the majority,” they should suggest as a necessary inference the end of bicameralism altogether. By their logic, a second House of the National Legislature becomes a silly and useless reduplication, an anachronism in a day when speed seems to have become the national motto. The ancient anecdote relating George Washington's reply to Thomas Jefferson's inquiry into the necessity of bicameralism—that we send legislation from House to Senate for the same reason we pour hot tea into a saucer—to cool it off—is pointless if the Senate, by the proposed change in its most characteristic rule and most distinguishing feature, becomes merely a second House. I would preserve freedom of debate in the Senate even under the restrictions of rule XXII because I would preserve the Senate as it was intended to be.

But I can see a greater issue arising out of the proposed attempt to end whatever remains of the freedom of debate in the Senate. And this issue is something which will be with us always, and in many different forms, long after the fate of any pending legislation today in the Senate is decided. That issue is none other than the issue of free speech, with which I think the basic question of revising rule XXII is so deeply involved.

The Supreme Court, in our day particularly, has gone to great, even perilous lengths in breathing into the Constitution a whole philosophy-moral as well as political—of freedom of speech. The Court feels the slightest attack upon what it calls the "preferred right" of free speech like a wound. I think our attitude toward a revision of rule XXII, which revision, whatever its form, is, at least abstractly, a question of freedom of speech, should be formed by the philosophy of free speech now given to the Nation by the Supreme Court.

Let me quote from a few of the Justices of the Supreme Court. I ask you to consider whether, in the light of the general philosophy of free speech these statements reflect as characteristic of Americanism, we should not also be as cautious as the Supreme Court in sanctioning barriers against free speech as a philosophic principle, in any of its manifestations, whether they be the inflammatory words of a Communist in Union Square or the dull speech of a duller Senator with whom the majority disagrees, and whose dull delay blocks the speed of the legislative machine.

UNIVERSITY OF MICHIGAN LIBRARIES

Said Justice Louis D. Brandeis: "If there be time to expose, through discussion, the falsehoods and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence" (Whitney v. California, 274 U. S. 357). Shall a Senator from a sovereign State of this Union have less and less speech and more and more enforced silence the enforced silence of the previous question?

Said Justice William O. Douglas: "Free speech has occupied an exalted position because of the high service it has given our society. Its protection is essential to the very existence of a democracy. The airing of ideas releases pressures which otherwise might become destructive. When ideas compete in the market for acceptance, full and free discussion even of ideas we hate, encourages the testing of our own prejudices and preconceptions. Full and free discussion helps a society from becoming stagnant and unprepared for the stresses and strains that work to tear all civilizations apart. Full and free discussion has indeed been the first article of our faith. We have founded our political system on it. It has been the safeguard of every religious, political, philosophical, economic, and racial group amongst us. We have counted on it to keep up from embracing what is cheap or false; we have trusted the commonsense of our people to choose the doctrine true to our genius and to reject the rest. This has been the one outstanding tenet that has made our institutions the symbol of freedom and equality. We have deemed it more costly to liberty to suppress a despised minority than to let them vent their spleen. We have above all else, feared the political censor. We have wanted a land where our people can be exposed to all the diverse creeds and cultures of the world" (Dennis v. United States, 341 U. S. 494).

This same caution of the Supreme Court in sanctioning curtailment of the very principle of free speech, this same solicitude for the high moral and ethical philosophy which the Court finds behind the political concept of free speech as written into the first amendment, I invoke and appeal to in urging caution in further impairing free debate in the Senate and in urging on you now solicitude, equal to the Supreme Court's, for the rights of minorities. I would not put the Senate of the United States on a level lower than that of the market place wherein, according to Justice Douglas, the free and unlimited interplay of ideas--of all ideas, even those "we bate,” will work out our political salvation as a people.

I am unwilling therefore, because of this same basic philosophy, to tamper with rule XXII any further, because, if political enlightenment of the Nation can come from a Communist on a soapbox, untrammeled by the Supreme Court, I would not like to chance it that some degree of enlightenment might not come from a minority Senator exercising his already limited right of free debate on the floor of the Senate. If I am, according to the Supreme Court's philosophy, to "give the benefit of the doubt” to a Dennis or a Foster, I see no reason why I should not do the same for a Norris or a La Follette fighting the ship-arming bill in 1917 or a Talmadge fighting the civil-rights bill in 1957. Shall we have one basic philosophy of free speech for Communists and another for United States Senators? If the personal and political motivations of those who use free speech to destroy the Nation are now, according to the Supreme Court, beyond the pale of judicial scrutiny, I for one would refuse then to scrutinize the personal and political motivations of those who use the limited freedom of debate in the Senate to save the Nation. Nor will I condemn them with the epithet "filibusterer.”

For experience teaches how easy it is to smear those who disagree with us and then relying on an epithet, seek legislation to make their further disagreement with me impossible of expression. In 1917 Senator Norris and Senator La Follette in the closing days of the Senate in the short session of Congress spoke long and vehemently against the President's proposal that he be given unrestricted rights to arm merchant vessels of the United States—as a war measure when there was no war—no war declared by Congress as required by the Constitution—no war resolution even asked for by the President. Senator George Norris and Senator Bob La Follette will not be tagged as "reactionaries." And to their dying days they defended what they had done, for they had followed the dictates of their consciences as Senators from two great States in preventing the enactment of legislation their consciences told them was morally, constitutionally, legally wrong. And neither Senator Norris nor Senator La Follette would ever admit that their action constituted a "filibuster."

And I am happy to note that a Member of this body, the junior Senator from Massachusetts, Hon. John F. Kennedy in his recent best-selling book, Profiles

of Courage, has hailed both Senator Norris and Senator LaFollette as outstanding men of courage in the long and noble history of the Senate. There come times, as Senator Kennedy has dramatically pointed out, when a man's conscience imposes upon what he considers to be the moral obligation to speak out at such length and with such eloquence as he can command, no matter how great the marshaled opposition to him may be, no matter what the threat of loss, no matter how remote the promise of ultimate victory. When this "still small voice" of conscience calls to a Senator from a sovereign State and he under this moral compulsion on the floor of the Senate asserts the cherished privilege of the Senate-freedom of debate--I for one would not deny him that privilege, nor would I favor a change in rule XXII which would send him home a silenced Senator to the State which sent him forth to speak for her.

In considering the proposed changes in rule XXII, we must, to paraphrase Justice Holmes, remember “what this Government has become and therefore consider well the wisdom of retaining and strengthening not only the "checksand-balances" which our Fathers formally wrote into the Constitution, against unlimited government, but also those ancillary restraints which the wisdom of the Senate wrote into its rules so many years ago. Under the Constitution each House is given the right to draw up its own rules of procedure. There is no expressed limitation on this right, but is it conceivable that either House could enact rules of procedure which ran counter to the inner spirit and philosophy of the Constitution itself?

The two most serious threats to the constitutional principle of separation of powers and to the "checks-and-balances" system which were designed to maintain that principle in the interest of freedom are today (1) the enormously increased political power and prestige of the Executive and (2) the disinclination of the Supreme Court to exercise jurisdiction in an ever-widening area of constitutional problems which it calls "political" or "nonjusticiable." In the light of these threats I submit to you that Senate rule XXII has a vital constitutional function to discharge. It is more than a simple rule of legislative procedure. The facts of contemporary political life have made it a constitutional weapon or device of the first magnitude. It is on these grounds also that I oppose its relaxation to permit even greater restrictions on freedom of debate in the Senate.

The American people in mid-20th century are sufficiently sophisticated to understand the force and power of the Executive patronage in its more, as well as in its less, subtle forms. For the time being, at least, they realistically accept it as a fact of life-a condition inevitable in the “Big Government" type of government so dreaded but never completely foreseen by the Founders of the Republic. They are aware of the pressures from the White House that go to shape up the factitious “majorities” which are said to represent the "voice of the people," before which, under the assumptions of democracy, dissident minorities must humble themselves and give way. We know of what parliamentary majorities are too often composed. We have seen them before as things of "shreds and patches.” After all, what inherent sacredness is there in a "inajority" as a "majority.” The word itself connotes no metaphysical magic. We should like to know the elements, the motivations, the temporary and uncertain alliances, the hushed bargainings behind the "majority" which give it its evanescent life. How shall these be uncovered--brought into the open naked, for what they are worth, unless, as long as there is a chance even a small chance-and history shows how often popular government has hung upon the slender thread of chance—that a single voice among the minority may pierce the veil of a politically corporate “majority," the Senate rules still bid this voice to be heard?

We need what is left of the ancient tradition of the free forum of the Senate as a check upon the new overbalance of the Executive power. With the great overdevelopment of the Executive power resulting in a vast bureaucracy itself functioning freely under its own rulemaking power little restrained by the courts, there is no longer a sufficient check-a strong enough balance in the ordinary constitutional provisions. It is precisely here that I suggest to you the renewed value and utility of the free debate privilege of the Senate. This is not the time to water down or slowly drain away that privilege. Free debate in the Senate, even with the limitations now provided in rule XXII, may well be one of the last lines of defense against an executive imbalance which threatens to destroy the Constitution itself.

For we have also witnessed in our time a withdrawal of the Supreme Court from large areas of constitutional law, a virtual abdication of its function as the final judicial interpreter of constitutional limitations. While deeply solicitous for the right to free speech of Communists, for example, and deeply concerned with the lives, the fortunes, and the sacred honor of those who invoke the fifth amendment privilege against self-incrimination, the Court in other areas is refusing to hear cases involving claimed constitutional rights by others, on the ground that the cases present "political questions" merely and the claimants are relegated to the “forum of public opinion” or to the "ballot box” since they are said to have no “standing in court." Have these people an effective forum in which to assert violations of the Constitution which impair their rights?

Let me cite one of these areas called political or nonjusticiable. Certainly since the case of Massachusetts v. Mellon and the allied case of Frothingham v. Mellon (262 U. S. 447), it has been legally impossible for a citizen-taxpayer to secure from the courts a determination of the constitutionality of a proposed expenditure of Federal taxes. The Court said the taxpayer showed no right to be heard ; and the sovereign State of Massachusetts fared no better in its contention that the proposed expenditure involved a violation of the rights reserved to the States under the 10th article of the Bill of Rights. The Court declared the questions presented were “political” and not "judicial” in character. In days to come, with this judicial trend prevailing, with the doors of the judicial forum thus closed, we may need more and more the free forum of the Senate, the Senate of old with tradition of free debate strengthened, not weakened, a Senate where free debate makes interposition against constitutional violations not a piece of nostalgia but a political reality to be reckoned with. I would oppose a relaxation of rule XXII as proposed.

Proponents of further restriction on the Senate's right of free debate make much of the abuse of the right. Any right may be abused. The possibility of the abuse of a right is the price paid for the recognition of the right. And I had thought it abundantly clear from our history that the abuse of a right is no argument for its abolition. In the long course of Supreme Court decisions in the area of civil rights it has been made clear that the fact that the right of free speech may be abused is the weakest of arguments for its curtailment. I would leave the abuses of the right of free debate in the Senate to be dealt with by the force and pressure of public opinion. I would not further restrict the right.

And I would remind the majorities which would further limit the right of free debate of minorities that many of today's majorities may find themselves among the minorities of tomorrow. Let them think carefully and cautiously about the proposals now before us lest on that tomorrow they find themselves asking in vain for the right they would today destroy.

Because then free debate is so much in keeping with the historic functions of the Senate under the Constitution as the free forum of the sovereign States; because its value and importance to our constitutionally limited government have increased in the light of what American Government has become, I would oppose any changes in rule XXII making it easier or quicker to gag free debate. And as the Supreme Court is so cautious these days about sustaining restrictions on free speech generally, because of the basic philosophy behind the concept, so am I cautious about further limiting free debate in the Senate, for free debate in the Senate is the legislative counterpart of the whole constitutional concept of free speech. It is drawn from the same sources. It is nourished by the same philosophy. It should not now be weakened or mutilated. Respectfully submitted.

C. M.

STATEMENT OF HOWARD NORMAN MANTEL, ATTORNEY, BROOKLYN, N. Y., ON

SENATE RULE XXII Mr. Chairman, it is a fundamental principle of representative government that the elected majority may do what it thinks proper within constitutional limits and provided fundamental rights of the minority to be heard and protected are not violated. Under the present provisions of rule XXII, it takes only 33 Senators to prevent the overwhelming majority from closing debate on a pending matter. And for proposals to change the Senate rules, debate can be closed only upon the physical weakening of a minority Member or Members after prolonged filibuser.

No one questions the propriety of the Senate in preserving the right of debate; but debate ceases to be such if there are no effective limits thereon. By that I mean simply that when debate is not used for purposes of discussion or per

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