PROPOSED AMENDMENTS TO RULE XXII OF THE

STANDING RULES OF THE SENATE

TUESDAY, JUNE 25, 1957

UNITED STATES SENATE,

SPECIAL SUBCOMMITTEE OF THE

COMMITTEE ON RULES AND ADMINISTRATION,

Washington, D. C.

The subcommittee met, pursuant to recess, at 10:05 a. m., in room 457, Senate Office Building, Senator Herman E. Talmadge (chairman of the subcommittee) presiding.

Present: Senators Talmadge, and Javits.

Also present: Langdon West, special counsel to the subcommittee; Darrell St. Claire, professional staff member; Robert S. McCain, professional staff member; and Sidney Kelly, Jr., administrative assistant to Senator Javits.

Senator TALMADGE. The subcommittee will come to order.

We are delighted to have with us Senator John Stennis of Mississippi. Whenever you are ready, Senator, you may proceed.

STATEMENT OF HON. JOHN STENNIS, A UNITED STATES SENATOR FROM THE STATE OF MISSISSIPPI

Senator STENNIS. Thank you.

Mr. Chairman and gentlemen of the committee, if I may say just a personal word, I think it is a very important assignment you gentlemen have as members of this committee. I was at one time honored by the Senate to be a member of the Rules Committee, and some of my most pleasant recollections are around that period when Senator Carl Hayden was chairman.

Mr. Chairman, if I may, I will proceed to read my statement here, then I have some additional points at the last that I want to make. Mr. Chairman and members of the committee, I would like to commend your subcommittee for its wise decision to solicit the views of all interested persons, groups and organizations in connection with the pending measures for amendment of rule XXII of the Standing Rules of the Senate.

Full discussion of this measure should be brought forth in the light of developments which have occurred recently and the general awareness which appears to be apparent in all parts of the country that subtle changes are taking place in our form of government and way of life.

I feel that your committee could render no greater service than to give full consideration to all sides of this question, and feel that, unfortunately, those of us who have urged restraint in straitjacketing

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the Senate have not had our point of view fully presented from all of the various patriotic and other civic-minded groups through the country whose devotion to constitutional government is unquestioned and unquestionable.

Under consideration by your committee are a number of measures designed to make the process of invoking cloture easier. I do not think that any of these pending measures should be adopted and embodied in our Senate rules as a substitute for the present rule XXII. Mr. Chairman, the United States Senate is the only place in American Government where the States are represented as States.

Now, the phrase "States rights" is often used. I am thinking of this in terms of States powers. We are down to the last nub of representation of States as States.

The President represents the Nation as a whole, and his responsibilities are to the people. The executive branch, constituting the civil service, is not responsible to the States. Most of the officials in this branch are never elected, nor can the people bring about their removal except in accordance with impeachment laws or complicated administrative procedures for dismissal.

The Members of the House of Representatives, elected directly by the people from the beginning of our country's history, representing their districts which are geographical subdivisions of the States, are responsible to the voters or people of the subdivisions.

The Federal courts certainly do not represent the States, and the recent trend in the Supreme Court decisions has certainly shown disregard for the constitutional and historical respect for the integrity and sovereignty of the States.

It is only in the Senate that the States as such have representation. Their rights and powers are deposited in the Senate Chamber. It is their only forum in Government. It is the only place where their rights and powers, which were not delegated but were reserved under the 9th and 10th amendments, find their protectors.

If this be true, and it is true, then it must follow that the Senators elected from their States are the trustees of their States' rights and powers.

Members of the Senate had nothing to do with creating these rights and powers. That was accomplished when the Bill of Rights was adopted.

They have a responsibility, where legislation involves the creation of new Federal power, to see that their State's rights are protected. They have a duty to support corrective legislation, where it is discovered that executive prerogative is being carried too far and is infringing upon the reserved rights of the States.

They have a duty to see that corrective legislation is supported and enacted to restore to States rights lost by judicial decree.

They have a duty to go forward in protecting the rights of States which have entrusted them with the power of a senatorial vote.

On the specific issues which come before the Senate, I feel that the question of support or opposition to any measure should depend not only on the individual member's opinions on the effect of this legislation at the national level, but should also reflect the searching of his conscience as to whether the power of the State he represents would be effectively diminished in derogation of the constitutional balance

and whether, in effect, he is violating the trust placed in him by the people of the State he represents by assenting to a loss of some incident of sovereignty of the State.

Now, if the Senate is just another legislative body with no concept beyond that, then rule XXII cannot be sustained. But, if it has any measure of the concepts that I have tried to outline here in the representation of the States, and that is unquestionably true, then there must be special rules to protect those powers and rights of the Senate; and in our form of government we are down now to where this is the last citadel of protection of those rights and powers.

Centralization of government is now the trend in national affairs, and is proceeding at breakneck speed. I think that the Senate is a brake on this serious change in our form of government, and I feel that its action as a restraining influence is a major part of its duty and purpose. I think that the Government must be kept close to and responsive to the people, and that the effectiveness of local and State government should not be further diminished by ill-considered and unwise legislation.

The question in my mind is: Is not a vote to make cloture easier a vote to diminish State power?-and it certainly is.

Let me examine the pertinent features of this rule and see what protection it offers the States in our Union.

In its present form rule XXII assures full and free debate of measures before the Senate. It does not guarantee unlimited debate, but by requiring a vote of 64 Senators-two-thirds of the Senators duly chosen and sworn-to close such debate, it places some limitation on unreasonable debate.

Admittedly, gathering the vote of 64 Senators to enforce a gag rule on any matter is a difficult undertaking. I feel that this is as it should be-Senators should not be silenced by hasty and ill-considered action.

This rule, and the underlying principle of full and free discussion of major national issues, more than any other single thing determines the power of the States in their representation in the Senate. As much as any other single thing, the principle of free discussion without the threat of a gag rule determines the nature of the Senate and contributes to its stability.

Now, there is your Senate as an institution.

If this rule were eliminated and cloture were made possible by a mere majority vote of the Senate, the deliberative function of the Senate would be destroyed. It would be a mere annex of the House of Representatives, and would be merely another legislative body. Rule XXII is a meeting place, or a middle ground, between absolute majority rule and the dignified representation of the sovereign States in their National Government.

If this appears to be a compromise on principle, perhaps we should stop and examine the nature of government and the protection it affords.

Minorities have rights which no majority, however large, should ever be permitted to override. Many personal rights are conferred by the Constitution, yet an individual is 1 person-there is a majority of 170 million. Government is established to protect the rights of the minority down to the individual citizen or person. There is justifica

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tion for any lawful obstruction to the enactment of measures which would trample and override these rights.

On the other hand, there perhaps should be some limit to debate in the Senate. While the liberal forces appeared in opposition to the vote of two-thirds of the Senators duly chosen and sworn-insisting instead that cloture might be invoked by majority vote or two-thirds of those present and voting-I nevertheless believe that the practical requirement of 64 affirmative votes on a cloture motion raises the dignity of representation of the sovereign States in the Senate.

When the Senate was first organized in 1789, a rule limiting debate was adopted. It was almost never used, and the Senate discarded it in 1806.

It was not readopted in any form until 1917 when a filibuster delayed arming of American merchant ships prior to our entry in World War I. It was this wartime emergency which imposed the first limitation in 111 years on deliberations in the Senate. The cloture amendment to rule XXII was never used during World War I. Cloture has been invoked only 4 times out of the 19 times it was sought to be invoked.

As a part of the history of the passage of that rule in 1917, the committee will doubtless remember that within a few days after that debate, President Wilson went on and armed the ships anyway.

Now, as a war measure, he went on and armed the ships anyway, and was upheld in that right.

Now, this rule protects minorities. By making a gag rule depend on more than a mere majority vote, it gives Senators in a minority position on a given matter the opportunity to present their views to numerically superior forces and provides the time for public reaction to make itself felt in determining the issue under consideration. It gives time to sound the alarm against ill-considered legislation.

A majority vote in the United States Senate does not necessarily represent a majority of the States, nor of the people. Senators vote as individuals according to their own convictions, and necessary absences on important matters have sometime turned the tide in a close vote.

Public opinion all too often, upon an important legislative question, may never be formulated or effectively expressed. Bills are often called up on relatively short notice, and the Congress has been known to act without the full awareness of the public generally on the important measures it is considering.

Prolonged debate, however, has in the past, and may in the future. prevent hasty majority action which is actually contrary to the will of the people. Further, the Senate has a special duty both with proposed legislation and so far as the President is concerned. These duties are imposed by the Constitution.

On revenue bills, the House of Representatives must act first and the Senate acts in a kind of appellate capacity. It has a special duty to inspect proposed legislation carefully. This duty cannot be effectively performed without freedom of debate. Such legislation can be graveled through the House of Representatives with terrifying speed under special rules framed by a partisan committee and with only the barest skeleton of debate.

It is essential that there be one place in government for thorough deliberation and public discussion of the issues.

I have a very profound respect for the House of Representatives, representing directly, as they do, the people. But on a very, very important piece of major legislation pending before the Congress 2 years ago now, I went over to the House to hear the debate. One of the very able members of the Mississippi delegation-this was a major bill affecting every county in his district.

He had 5 minutes to discuss the merits of that bill in debate; and, with all deference to the House, they never did get the House in order before his 5 minutes were up.

That was his day in court-that 5 minutes. I think he got 3 minutes of that as a matter of right, and someone else who wasn't going to use the time gave him 2 additional minutes.

Then that bill came on over to the Senate, and it was debated for 3 weeks, and wound up a far more acceptable bill, not only to my area of the country, but, as time has proven, far better for the entire Nation. It is one of those practical illustrations of the contrast between the rules.

So far as I have been able to determine, filibustering does not prevent needed legislation. I do not recall a single instance in American history where an important measure defeated by a filibuster has been enacted later. Nearly every proposal thus rejected has died unregretted by the country. No really meritorious measure has been defeated by filibuster, but some vicious proposals have been killed.

Rule XXII has been used in the past by almost all minority groups, as well as by almost all the liberal forces in Government.

Its protection has been sought not only by southern Democrats but also by the progressive Republicans, such as the late Senator La Follette of Wisconsin and Senator Borah of Idaho.

One of the impressive things, when I first came here after the day of those gentlemen named, was the very striking reports that were given by other Senators as to how these two men, the late Senators La Follette, Sr., and Senator Borah, used to take the lead in defending these very same Senate rule provisions.

Two examples of legislative measures which were highly popular in the excitement of the times and which were defeated in the Senate because the Members of the Senate and the people of the country had an opportunity to take a second look at the matters:

In 1937, when President Roosevelt was seeking to pack the then respected Supreme Court, his popularity would have assured this objective had the matter been brought to an early vote.

The strategy of delay was decided upon, and after a few months, a majority of the Senate came to the conclusion that most of them hold today that the Supreme Court should be an independent body of respected jurists, not loaded with political appointees.

Later, during the railroad strike of 1946, it was recommended that striking employees be drafted into military service. This bill passed the House of Representatives within minutes after the recommendation had been made. In the Senate, however, the more thorough and detached consideration of this measure led to its being killed as unwise.

There have been cases when prolonged debate has been the major factor in the passage of bills. Recent examples of this were the LendLease Act of 1941 and the loan to Great Britain in 1946, both of which