Senator JAVITS, Washington, D. C. EMORY UNIVERSITY, DEPARTMENT OF POLITICAL SCIENCE, DEAR SENATOR JAVITS: I see by a press report that Dr. Albert Saye of the University of Georgia has defended (before your subcommittee) the filibuster and bases his argument largely on our constitutional system of checks and balances. Dr. Saye is an old student of mine and a good friend, but he is a conservative and I am a liberal. I don't see any validity to his argument. The Preamble to the Constitution says "the people of the United States" established our Constitution. To me this means that the people of the United States-not the States-are sovereign. How can the people be sovereign while a small band of Senators can thwart their will by filibustering and killing legislation which they favor? In order to carry out the will of the people there must be majority rule. One of the founders of the Democratic Party-Thomas Jefferson-said the democratic principles in which he believed included majority rule, equal justice to all, and civil liberties. He is the patron saint of many Democrats conservative as well as liberal. I would like to refer you to a book of which I am coauthor, Fundamentals of American Government, published by McGraw-Hill Book Co. (1957 edition), chapters 12 to 14, inclusive, in which I discuss the Congress. You will find a great deal of material there on the filibuster. Sincerely yours, CULLEN B. GOSNELL, Professor of Political Science, Emory University, and Director of Emory STATEMENT OF BERNARD WEITZER, NATIONAL LEGISLATIVE DIRECTOR, JEWISH WAR VETERANS OF THE UNITED STATES OF AMERICA On behalf of the Jewish War Veterans of the United States of America, I am happy to express appreciation for this opportunity to present our views in favor of correcting Senate rule XXII along the lines of resolutions which have been passed for many years at the annual conventions of our organization. Following is the resolution passed at our convention last year. "Whereas the rules of the Senate permit debate unless and until 64 Senators vote to close debate; "Whereas this rule in practice often degenerates the process of debate into obstruction of a vote by the Senate; and "Whereas this rule permits filibustering by which a small minority may frustrate the majority of the Senate: Now, therefore, be it "Resolved, That the Jewish War Veterans of the United States of America at 61st annual national convention assembled in Milwaukee, Wis., August 7-12, 1956, do urge the Senate of the United States to adopt a rule which will safeguard debate, yet provide a time certain to bring bills, resolutions, and motions to a vote." This resolution recognizes the importance of full debate in the Senate. It equally recognizes the importance of permitting the Senate to vote its will when adequate debate has gone forward to a point where continuation of debate is merely repetitious and carried on only to prevent a vote. Senate rule XXII as now written, makes it too easy to indulge in unreasonably prolonged discussion on the Senate floor and to prevent the Senate from voting a decision on the matter before it. Since the resolution of our organization quoted above does not endorse, specifically, any of the measures which you are considering, I can only suggest that you report, favorably, a change in the rule which will provide a fixed time of termination for debate on any Senate procedure which is provided for in the Senate Rules. Thereafter, a vote may be called for on the previous question. Respectfully submitted. BERNARD WEITZER. Hon. HERMAN E. TALMADGE, Senate Office Building, Washington, D. C. HOLLYWOOD 38, CALIF., June 3, 1957. DEAR SENATOR TALMADGE: Thank you for your letter of May 11. The delay in my reply has been caused by my absence from Los Angeles for several weeks. As an individual and a damnyankee, I believe that there is no single Senate rule which should be more zealously guarded than the one protecting the right of members to speak or debate without limitation. It is my private guess that most of the citizens in the various States who support the right-to-work fight would probably agree with me in this stand if only for the reason that it is conceivable that one day Senate rule 22 might save us from the catastrophe which could follow an amendment to the Taft-Hartley Act repealing or invalidating section 14-B. However, my interest in this subject goes far beyond my particular concern for the right to work. If this rule were to be changed, it is further conceivable that the historic role of the Senate in modifying and restraining momentarily popular surges of democratic enthusiasm might be seriously changed or completely eliminated. If such a situation as this were to come about, much of the usefulness of the upper House would be lost and we might even have in fact— if not in form-a unicameral legislature. If there is anything further I can do, please let me know. I shall probably be in Washington between June 17 and 20. Sincerely yours, DONALD MACLEAN. DORAN & MANION, Hon. HERMAN E. TALMADGE, Senate Office Building, Washington, D. C. South Bend, Ind., June 25, 1957. DEAR SENATOR TALMADGE: Thank you for your invitation to testify before the special subcommittee on Rules and Administration of the Senate now considering proposed amendments to rule XXII. It was my hope and intention to appear personally and present the enclosed statement, but a series of engagements on the west coast during the month of July will make this impossible. I therefore hope that you will incorporate the enclosed statement in the record of the subcommittee. Very sincerely, CLARENCE MANION. MEMORANDUM IN OPPOSITION TO PROPOSALS FOR FURTHER LIMITATION OF FREE DEBATE IN THE SENATE BEYOND THE LIMITATIONS NOW PROVIDED FOR IN RULE XXII Mr. Chairman, I wish to express my opposition to any proposals which would carry the limitations on free debate in the Senate further than the limitations now provided in rule XXII. "RULE XXII. PRECEDENCE OF MOTIONS *** * If at any time a motion, signed by 16 Senators, to bring to a close the debate upon any pending measure is presented to the Senate, the Presiding Officer shall at once state the motion to the Senate, and 1 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 an aye-and-nay vote the question: ""Is it the sense of the Senate that the debate shall be brought to a close?" "And if that question shall be decided in the affirmative by a two-thirds vote of those voting, then said measure shall be the unfinished business to the exclusion of all other business until disposed of. "Thereafter no Senator shall be entitled to speak in all more than 1 hour on the pending measure, the amendments thereto, and motions affecting the same, and it shall be the duty of the Presiding Officer to keep the time of each Senator who speaks. Except by unanimous consent, no amendment shall be in order 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 everybody. 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 House 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. In 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. 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. 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 hate," 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 |