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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 conclusion 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."
6 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 tooverrule.
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 ccutrolled 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 time except 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 subsections 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.
"g. The provisions of the last paragraph of rule VIII (prohibiting debate on motions made before 2 o'clock) and of subsection 2 of thie 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, 6 The text of the 1949 rule, which is still in effect, is as follows:
while Nevada and Delaware will almost inevitably tend to be opposed to cloture since such a precedent will diminish the present tremendous political power of the small States in the Senate. This brings the almost sure total of votes against cloture on civil-rights measures to at least 29, or only 4 less than the necessary 33. In addition, Maryland, West Virginia and Kentucky, as border States, will generally add at least some negative votes. The legitimately sick and the cryptoallies of the South who can discover sudden disabling ailments will almost always be sufficient to add any other votes needed to turn the tide.
It is this very fact of arithmetic, moreover, which makes the majority of southern Senators opposed to the admission of Hawaii and Alaska to statehood. The entry of these two States into the Union would increase the total membership of the Senate to 100 and would require 34 negative votes or absentees to defeat a civil-rights measure. Since the four new Senators from Alaska and Hawaii would in all probability be procivil rights, the relative position of the South would be slightly weakened.
It is for such reasons as these that many of us have believed that it is impossible to pass meaningful civil-rights legislation through the Senate as long as rule XXII remains on the books in its present form.
III And yet, how can it be changed? For when any motion to change the rules is brought up, the Senate rules themselves prevent cloture. Such a motion can be filibustered to death, unless unanimous consent is obtained, which of course, is an impossibility. In other words, just as the adoption of the two-thirds of those dulychosen-and-sworn provision put civil-rights legislation in the deepest dungeon, loaded it down with chains and put it into a locked straitjacket, so the third paragraph was thrown away the key in an ocean of words from which it cannot be retrieved.
So at first it seemed. But upon closer and prolonged study, some of us believed that we had found a real crack in the defenses which would permit action after all.
Granted that once the rules of the Senate were held to be adoptd, it was virtually impossible to change them so as to recover the ability of a majority of the Senate to act on certain vital measures, was it not possible for the Senate to change its rules at the beginning of a new Congress without being inhibited by rule XXII itself?
Article I, section 5, of the Constitution declares that "Each House may determine the rules of its proceedings." Does not the phrase "each House" mean not only both branches of the Congress—that is, the House and the Senate—but also the separate branches of each succeeding Congress?
The House adopts its rules at the beginning of each Congress and in 1945, at the opening of the 79th Congress, Representative Rankin seized the occasion to make the Committee on Un-American Activities a part of the permanent machinery of the House. Why, we queried, could not the Senate also proceed at such an opening of Congress to adopt its rules and in doing so, modify rule XXII in such a manner as to curb the filibuster?
This raised the inevitable question, if we assumed that the previous rules expired with the preceding Congress and that the Senate in the new Congress could adopt new rules, under what rules would the Senate operate during this interregnum?
Our answer was that the Senate would operate under the principles of general parliamentary law and procedure and that this provides for the moving of the previous question. This motion, if carried automatically, shuts off debate and then requires an immediate vote on the main proposition. In this way, we hoped to shut off a filibuster on our motion to curb the filibuster. Jefferson's Manual, which has a persuasive, though not a controlling, influence on the parliamentary practices of the Congress, provides that the moving of the previous question only requires a simple majority for it to be carried, whereas Roberts' Rules of Order requires a two-thirds vote for it to prevail. Our confidence in this procedure was strengthened when we found that Senator Walsh had used an identical method to force the adoption of his cloture rule in 1917.
But to this contention of ours, it was said that the Senate-unlike the House was a continuing body and that as such, its rules carried over from Congress to Congress and that, hence, any motion to change the rules—even at the beginning of a new Congress—had to be conducted under the officially printed rules of the previous Congress.
And how is it argued that the Senate is a continuing body? Because only a third of its Members have been chosen at the previous election with two-thirds carried over, while in the House all the Members have been so elected.
But we pointed out that the Senate, like the House at the beginning of each Congress, chose its officers anew and then named its committees, and that since all prevailing measures had died with the previous Congress, bills had to be introduced afresh.
We, therefore, contended that the Senate should have the right at such a time to consider its rules anew and either to approve those which had previously prevailled or to make changes in them. For if the Senate did not have this right, then it would, in practice, be tied forever by the dead hand of the past and would have no real opportunity for change. This would violate the long-recognized legal principle that one Legislature cannot bind its successors. It would bar the Senate of each new Congress from the exercise of its right under the Constitution to determine its own rules.
Therefore, at the beginning of the 83rd Congress in January 1953, a group of us sponsored a move to change rule XXII. The required initial parliamentary move was a motion to consider the adoption of rules for the Senate. This was made by Senator Anderson of New Mexico on January 3.
It was well understood that if a point of order was raised against this motion, Vice President Barkley (whose term did not expire until January 20) would rule that the motion was in order. Senator Taft, the leader of the Republican majority, therefore announced that after a moderate amount of debate, he would move to table Senator Anderson's motion. This was done and on the rollcall, the motion to table prevailed by a vote of 70 to 21. The 21 who voted against tabling were, of course, those who believed in a revision of the rules and consisted of 15 Northern and Western Democrats, 1 independent, and 5 Republicans. The Democratic party leader, Senator Johnson of Texas, joined Senator Taft in opposing the Anderson motion.
The issue then slumbered until the election of the 84th Congress when the Democrats recaptured control of Congress by a narrow majority. A conference of liberal Democrats was held on the eve of the opening of Congress to decide whether or not the battle over the rules should be renewed. Senator Lehman of New York believed that it should. Others argued that in the interests of party harmony, the struggle should be postponed and this opinion prevailed. While I joined in this decision and should bear some of the responsibility for it, I have since come to believe that it prabably was a mistake. Many others came to the same conclusion and resolved to bring the matter up without fail at the opening of the 85th Congress in January 1957. This was affirmed in the Democratic platform for 1956.
This time, we did more thorough preparatory work. Full cooperation was sought and obtained from the liberal Republicans of the Senate. A very detailed brief was prepared and presented to Vice President Nixon and a ruling was sought from him. At an appropriate moment in the course of debate, the proper parliamentary inquiry was made by Senator Humphrey of Minnesota, and the Vice President gave an informal opinion which upheld the point of view which we were defending.
In this opinion, the Vice President declared :
“The right of a current majority of the Senate at the beginning of a new Congress to adopt its own rules, stemming as it does from the Constitution itself, cannot be restricted or limited by rules adopted by a majority of the Senate in a previous Congress.
"Any provision of Senate rules adopted in a previous Congress which has the expressed or practical effect of denying the majority of the Senate in a new Congress the right to adopt the rules under which it desires to proceed is, in the opinion of the Chair, unconstitutional. It is also the opinion of the Chair that section 3 of rule XXII in practice has such an effect."
While this opinion did not appear to swing any of the votes reported to us as doubtful, we were gratified by the support of the Vice President's carefully reasoned judgment.
The Washington correspondents had been predicting that our motion would be overwhelmingly crushed. But we greatly increased our strength and were only defeated by a vote of 55 to 38. In other words, we increased our strength by 17 votes over the 1953 poll. Twenty-one of the thirty-eight votes were from the Democratic side of the aisle. All of these were from the North and West except Senator Kefauver of Tennessee, who was the only southerner to support the