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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. Thank you very much.

(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.1 To illus trate 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. O. 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.

I

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 mililonged 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—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.

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 meaningful 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.

II

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 institution. 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.

From 1789 to 1806, it was possible to move the previous question in the Senate and upon the passage of this motion, debate could be brought to a close and the Senate could proceed to a decision.3

With the dropping of this rule in 1806, no method of terminating debate, aside from sheer exhaustion, existed until 1917.

For a brief further period after 1806 the power of the Presiding Office of the Senate to decide every question of order without debate and with no right of appeal from this decision by the full Senate could have been a restraint on unlimited debate. But this provision too was dropped in a revision of the rules on February 14, 1828.

Since then, filibusters were carried out in the earlier periods on the admission of certain States into the Union, and in the 1890's, on the extension of Federal control over elections. These were in the main sectional struggles.

During the so-called progressive era-from 1907 to 1917-the filibuster was used a number of times on ideological grounds, notably by Senator La Follette and others against the Aldrich-Vreeland banking bill of 1908, and also on the Canadian reciprocity bill of 1911, Wilson's ship purchase bill of 1915, and finally Wilson's armed merchantmen bill of March 1917.

The failure of this latter bill at the hands of the so-called willful 11, at the con. clusion of the 64th Congress as relations with Germany reached a crisis, led to the adoption of cloture provisions in the opening days of the 65th Congress. This was called into extraordinary session immediately upon the simultaneous expiration of the former Congress and the final inability of the Senate in that Congress to bring the armed merchantmen bill to a vote.

Popular feeling against the filibuster was very intense. Taking advantage of this occasion, Senator Walsh of Montana asserted the right of the new Senate to adopt new rules and to curb filibusters. Under the pressure of public opinion, and with the probability that Senator Walsh would move the previous question and bring a new Senate rule to a vote, the advocates of completely unlimited debate gave way. Rule XXII of the Senate was then altered by the addition of a second paragraph so that a vote to limit debate, or what we call a vote for cloture, could be passed by two-thirds of those present and voting. The newly adopted rule also provided that, if and when such a cloture motion was passed, each Senator was then to be limited to speaking not more than a total of 1 hour on the motion itself and upon all amendments thereto, and that any dilatory motions were to be ruled out of order. The opponents of filibusters believed they had at last put into the Senate rules the means of limiting debate and reaching a vote.*

In practice this cloture provision proved to be ineffective in all the attempts to obtain a vote on the so-called civil rights bills of the 1930's and 1940's. In the earlier period the effort was to bring antilynching bills up for a vote, while in 1942, 1944, and 1946 efforts to limit debate upon bills outlawing the poll tax as a prerequisite for voting similarly failed. In the latter year, cloture on a fair employment practices bill also failed by a wide margin to command the necessary two-thirds, and this was also true of two similar efforts which were made in 1950 under rule XXII as amended the previous year.

In all of these cases, I believe the opponents of these measures were in the minority, but with the aid of covert allies or crypto-opponents of civil rights they did number more than a third. Motions for cloture on civil rights bills under the 1917 rule were, therefore, defeated, and the hard core of opponents were able to talk these measures to death and compel their abandonment."

For a more complete discussion of this matter see my remarks in the Congressional Record for May 9, 1957. vol. 103, pp. 5948-5970.

4 The text of the 1917 rule is as follows:

"2. 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 1, 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."

For the record of these attempts and the vote upon them, see Appendix A.

The attempt to limit debate under rule XXII was made more difficult, if not impossible, by a ruling of President pro tempore Vandenberg in 1948 that the 1917 cloture provision was only intended to apply to a measure which was formally before the Senate, and was not applicable to the prior and initial motion to proceed to the consideration of a bill. Senator Vandenberg ruled that here there was no limitation upon debate and that the pre-1917 anarchy prevailed in this situation. Cloture upon the motion to bring up the anti-poll-tax bill was thus ruled out, and an appeal from this ruling was canceled by the parliamentary tactic of the Republican leadership in moving to adjourn, which carried by a rollcall vote of 69 to 16-with Southern Senators and all of the Republican Senators present standing solidly together. Senator Barkley aptly referred to this 1948 action as “a travesty upon free enterprise in the way of legislation before the Senate of the United States."

Thereafter, in 1949, as Vice President, Mr. Barkley had an opportunity to plug this gaping loophole and made a contrary ruling. But he was narrowly overruled by the Senate by a vote of 46 to 41. Twenty-five Democrats and 16 Republicans voted to sustain him, but 23 Senators of each party voted to overrule.

This, however, brings us slightly ahead of our story. The dramatic adoption of the civil rights plank at the Democratic convention of 1948, followed by the striking and generally unexpected Democratic victory in November of that year, filled many of us with the hope that something could at last be done to remove the road block of the fillibuster.

Early in the 1949 session, a proposal was brought up to make the 1917 cloture rule clearly apply across the board and to close up the loop-hole to which I have referred. After 10 days, cloture was invoked. The Vice President ruled it in order, but his ruling was, as I have stated, set aside.

After Vice President Barkley's attempt to clear the way for a vote on that motion to take up the technical change in rule XXII was defeated, we then made other efforts to modify rule XXII more substantially by providing that after a decent initial interval for debate, further discussion could be limited by a majority of the Senate or by 49 affirmative votes.

Our efforts, however, were to no avail. On essential matters, the Senate, and indeed, the House, has been controlled ever since 1938 by an informal but powerful alliance of the conservative southern wing of the Democratic Party and the conservative and primarily Middle Western and Western wing of the Republican Party. This coalition now came out again into the open and, by the vote of 63 to 23, passed an amendment to rule XXII which gave far greater protection to filibusters than did the 1917 rule. We wound up, therefore, in a worse position than when we started. In trying to take 1 step forward, we had really been forced to take 2 steps backward.

This was done in two ways. First, the new rule XXII-which is still the governing rule today-provided that debate could only be limited upon vote of two-thirds of the Senators duly chosen and sworn or by 64 affirmative votes. Thus, 33 Senators who either voted in the negative on a cloture motion or who absented themselves from the vote could prevent debate from being limited and could permit a filibuster to go on. In other words, all those who were absent and did not vote are in effect to be counted as voting "no" on cloture, even though if present they would have voted "yes."

This not only counts in the negative all those who because of sickness or genuine inability could not answer to their names. It also gives a convenient way out for those who would not dare to vote publicly with the opponents of civil rights, but who in their hearts wish to have the civil-rights measu: es defeated. For under these conditions, it is easy for a man to believe that he is ill and needs medical or hospital care when such a measure is coming up. By not voting, these can passively perpetuate the filibuster, but when taxed with their absence they can readily find an excuse which will be difficult to refute.

Since the average vote on cloture proposals had been approximately 84 during the years from 1917 to 1949, this requirement in itself greatly raised the obstacles to limitation of debate by requiring 64 affirmative votes in all cases as against an approximate total of 56 under the old rule. In practical effect, therefore, this raised the requirement for cloture by somewhere around 8 votes (or from a two-thirds to a three-fourths requirement). This was and is a much higher hurdle to surmount.

Second, and perhaps even more important, although little noticed at the timeexcept by close students, was the addition of a third paragraph to rule XXII, namely, that there could be no limitation of debate upon any motion to bring: up a change in the rules.

This meant in effect that debate could never be legally ended or limited on any proposal to liberalize the cloture provisions except by unanimous consent or by the physical exhaustion of the filibusterers. For if any proposal to change the rules and limit debate by majority vote or by some number less than 64 votes were introduced and a motion were made to bring it to the floor of the Senate, then under rule XXII a small and determined group could talk any such proposed change in the rules to death and not even two-thirds of the entire membership could stop them.

The debate on a rule change thus could only be terminated by unanimous consent or exhaustion. And on vital substantive issues where the articulate opinion of a section of the country was overwhelmingly in opposition to a given measure, debate could only be limited and a vote reached if the impossible number of 64 Senators joined to support cloture."

"RULE XXII

"2. 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?'

"And if that question shall be decided in the affirmative by two-thirds of the Senators duly chosen and sworn, then said measure, motion, or other matter pending before the Senate, or the unfinished business, 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 one hour on the measure, motion, or other matter pending before the Senate, or the unfinished business, 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.

"s. The provisions of the last paragraph of rule VIII (prohibiting debate on motions made before 2 o'clock) and of subsection 2 of this rule shall not apply to any motion to proceed to the consideration of any motion, resolution, or proposal to change any of the Standing Rules of the Senate."

(Italics indicate changes from 1917 rule.)

What, in effect, has been done is to adopt John C. Calhoun's theory of concurrent majorities, under which a majority in the country or in Congress is not permitted to pass legislation unless it also meets with the approval of the majority of each and every section of the country. The failure of Calhoun and the South to establish this principle prior to 1860 was one of the factors which led to the Civil War. Its quiet adoption in modern times may well lead us to reconsider just who in the long run won that war.

While a determined filibuster can theoretically be used on a variety of subjects, in practice it is probably limited-as I have said-to those questions which a majority of the country as a whole favors, but which the voters of a large section bitterly oppose. In other words, public opinion back home must back up the filibusterers so that they do not lose much, if any, political strength by their action. Civil rights legislation furnishes such an issue. The articulate sentiment of the South is vigorously opposed. And while public opinion in the North and West is on the whole favorable, it is in the main only tepidly so. Under the existing rules, therefore, it becomes almost impossible to break through the barriers of rule XXII.

The attempts to secure cloture on civil rights since the 1949 change in rule XXII confirm this conclusion. Despite the commitments of both parties to civil rights in the preceding election, we fell well short of the required 64 votes for cloture on fair employment practice legislation in 1950, by votes of 52 to 32, and 55 to 33. Since then any attempt to overcome the barrier of rule XXII on civil rights has seemed fruitless.

This conclusion is reinforced by an examination of the political forces within the Senate. There are now 11 States, including Tennessee (but not Kentucky) which can be classed as truly southern. Twenty-one of the twenty-two Senators from this region will vigorously oppose any meaningful civil-rights measure. On such an issue, Oklahoma and Arizona will almost inevitably go with the South, • The text of the 1949 rule, which is still in effect, is as follows:

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