ÆäÀÌÁö À̹ÌÁö
PDF
ePub

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 Housewas 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

motion. The remaining 17 Republicans were primarily—although not entirelyfrom the Northeast. Moreover, the three absentees announced that if they had been present, they would have voted with us. Our strength had, therefore, increased to 41 members.

As our gains began to be evident during the debate, semiofficial rumors were circulated that some form of civil rights legislation would almost certainly be enacted even without a change in the rules. Other rumors promised an early change in the rules as well. This may have lost us 1 or 2 additional votes.

Almost immediately after the vote, the senatorial leaders of the two parties, who had presented a united front against the Anderson motion, jointly sponsored a resolution providing for a new rule XXII returning the cloture provisions to the conditions prevailing between 1917 and 1949, namely, that debate could be limited by two-thirds of those present and voting instead of by two-thirds of those "duly chosen and sworn." Another feature of the Knowland-Johnson resolution is to strike out the provisions expressly preventing cloture from applying to a motion to bring up a change in the rules, but providing instead that Senate rules shall continue from one Congress to the next, unless changed as provided in the rules. Careful students have pointed out that this new proposal for a restriction on changing Senate rules in any future Congress may be as unconstitutional as we believe section 3 of present rule XXII to be. The whole resolution is clearly an effort to make a small concession on the required votes, but to lock the door tighter against any further future concession to real majority rule.

With 13 other Senators, I presented an alternative resolution providing that after 2 days' notice on motion of 16 Senators, debate could be limited by twothirds of those present and voting, and after 15 days' notice, limitation could be effected by an affirmative vote of a majority of those "duly chosen and sworn," or 49. This resolution also eliminated the existing provision that there could be no cloture on any motion to bring up a change in the rules and retained the present provision giving each Senator the right to speak for 1 hour, even after the affirmative vote on limitation.

Since a motion to limit debate would almost never be made and indeed probably could not enlist the required 16 Senators to present it-until after at least 10 days to 2 weeks of debate, and perhaps more on some issues, the practical effect of the resolution I have presented would be to allow full latitude in debate. Limitation by a two-thirds vote would be virtually impossible, except in some national emergency, short of from 2 to 3 weeks, and if voted it would be possible to have another 96 hours of debate if each Senator used his permitted time. Limitation by 49 votes would only be resorted to after about 4 to 5 weeks of debate, with the same allowance of 1 hour to a Senator after that. The proposed rule is, therefore, liberal in the permitted limits of debate.

Given the increased interest in civil rights today, both on the part of supporters and opponents, moreover, it is important to recall that with a relatively full attendance, as on the Anderson motion in 1957 when 93 Senators voted, cloture by two-thirds of those present and voting impose almost as heavy a requirement as the 64 votes under the present rule. I therefore believe on the basis of our experience with the unworkability of the 1917 rule, that simple limitation by such a two-thirds vote would not open up many doors to action. The requirement of 49 in my resolution seems better adapted to the needs.

Once again, many Washington correspondents have predicted that there would be definitive action upon the Knowland-Johnson resolution. But like the joint bill which the same 2 leaders had introduced last year with over 80 cosponsors providing for "clean elections" (but not including primaries), this now (March 29) languishes within the Rules Committee and shows few signs of life.

IV

The immediate coming test of strength is to be instead on the civil rights bills backed by liberal Democrats and the administration.

These have been reported favorably by the Constitutional Rights Subcommittee of the Judiciary Committee and are now before the full Judiciary Committee. The emergence from that committee will not be easy. If they run the gantlet there, these bills-or the companion bills from the House, if it has acted-will then be placed on the calendar of the Senate. They can be brought up for consideration, however, only on motion, which the southerners are certain to resist. Then if cloture is obtained and the motion to consider is passed, filibustering will continue on the bill itself and on the amendments thereto.

There are, therefore, many parliamentary hurdles for the advocates of civil rights to jump and the later in the session that the bill is brought up for con

sideration, the more difficult it will be to overcome the filibuster and to pass the bill. As I have said, I am extremely doubtful whether any meaningful civil rights measure can be passed by the Senate under its existing rules. But I shall be the happiest member of our body if I am proved wrong.

Should the filibuster, however, be successful in defeating the civil rights program, popular indignation against this practice will undoubtedly become more intense, and those of us who wish to curb it will in all probability get more than 38 votes on our next attempt in 1959 to change rule XXII. Some observers actually believe that we shall win. I believe that if we are not successful in 1959, we shall be in 1961.

The leaders of the Southern bloc are, I believe, aware of the trend in popular thinking. They give the impression that they do not want to use the filibuster unless they have to do so, because of their fear that in using it they will seal its doom. They may, therefore, seek to head off an open struggle and lessen the impact of popular indignation by quietly seeking to arrange a compromise in the form of a relatively weak and innocuous civil rights bill.

These possibilities are, however, conjectural. The events of the next few weeks and months will throw a great deal of light upon the practical fate of the institution of the filbuster.

V

In the meantime, I invite the attention of all those interested in political science and democratic parliamentary procedures to consider just what type of rule should replace the present rule XXII. I should like to propose the following principles for consideration:

1. Full discussion of important legislation should always be assured.

2. After a full discussion, it should be possible for the Senate to come to a vote.

3. A way must be provided to terminate filibusters and remove the roadblock to Senate action that is presented by prolonged discussion aimed at preventing a vote.

4. With proper safeguards for the rights of minorities to discuss issues fully, the right of a majority of the Senate to perform their constitutional function of legislating must be freed from the present shackles of the filibuster.

5. The historic compromise by which small States were given equal representation with the populous States in the Senate, already gives a relatively small minority of the people the control of a majority of the Senate. The filibuster under present Senate rules gives to the representatives of a minority of this minority, namely to 33 Senators, the right to block and veto action by the rest of the Senate. This goes far beyond the compromise which cemented the Union and strains the basic principles of our representative government. Majority rule will restore those principles.

6. The adoption of some such change in Senate rule XXII as I have proposed in Senate Resolution 17 would seem most likely to accomplish the foregoing objectives.

7. The Senate should likewise adopt a rule of relevancy, or germaneness, in general debate, wih some latitude at briefer stated hours for the discussion of other matters.

Such changes will become more possible as the people learn more about the nature and effect of the fetters that now bind the Senate.

With such changes, the people may hope for constructive legislation to assure greater equality of opportunity to the millions of our Negro citizens and others who daily in all sections of the country drink the bitter cup of discrimination and intimidation.

The conscience of America demands such action for humanitarian, religious, and constitutional reasons.

Our national self-interest requires it, as we seek to show to the world that the promise and opportunities of democracy are far superior to the grim realities <of tyranny.

The time has come for the Senate to act-with all deliberate speed.

[graphic][subsumed][subsumed][merged small][merged small][subsumed][subsumed][ocr errors][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][merged small][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][merged small][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][ocr errors][subsumed][subsumed][subsumed][subsumed][subsumed][merged small][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][merged small][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][merged small][subsumed][subsumed][subsumed][merged small][subsumed][subsumed][subsumed][subsumed]

1 Many cloture petitions have also been withdrawn or held out of order since 1917. Compiled by George B. Galloway, Senior Specialist in American Government, Legislative Reference Service, Library of Congress.

[ocr errors]
[ocr errors]
« ÀÌÀü°è¼Ó »