[From the Sunday Denver Post of January 6, 1957]

PATIENCE WILL WIN SOONER OR LATER

The fight over the Senate filibuster rule has contained a lot of hairsplitting talk about whether the Senate is a continuing body or whether a new Senate comes into being every 2 years.

Behind this gobbledegook, which can hardly interest those of us who are not parliamentarians, is an all-important issue: Is Congress impotent to pass laws to protect civil rights, including Negro civil rights?

Obviously, present laws are inadequate to deal with those who want to keep Negroes in segregated schools, in segregated buses, in segregated housing, and those who use intimidation to keep Negroes from exercising the right to vote and the right to take their grievances to court.

What kinds of laws are needed? Well, opinions differ, but the Eisenhower administration spelled out a definite program of new legislation at the last Congress and may be expected to come up with similar proposals for the 85th Congress.

For one thing, the Attorney General needs authority to seek civil injunctions to stop interference with the rights of Negroes or any other persons. Under certain conditions a person who interferes with civil rights may now be tried under criminal procedures, but getting a conviction of a white defendant by a southern jury is often hopeless.

If he were armed with civil injunction procedures, the Attorney General could go before a judge and get an order restraining interference by a defendant with civil rights. No jury would be required.

The Eisenhower program would also:

Create a bipartisan commission to study civil-rights problems.

Focus attention on civil rights by setting up a civil-rights division in the justce department.

Permit Federal prosecution for intimidating voters in elections for Federal office.

Permit aggrieved persons to go into Federal rather than State courts with their civil rights complaints.

Allow the Attorney General to file civil suits to break up conspiracies to deprive citizens of their rights.

The filibuster fight, shorn of its technical terms, is a maneuver in the main battle to pass legislation of this kind. Actually, filibuster or no filibuster, there seems to be enough civil-rights sentiment in the United States Senate to pass at least part of this program.

The cause of civil rights is not a forlorn hope, as some would have us believe. No one can talk forever. Every filibuster must end eventually.

OPINION OF THE VICE PRESIDENT AS TO THE CONSTITUTIONALITY OF SECTION 3 OF RULE XXII OF THE STANDING RULES OF THE SENATE

[From the Congressional Record of January 4, 1957, pp. 139–140]

Mr. HUMPHREY. Mr. President, I had intended to inquire of the Chair relating to a matter or two, and I rise now for that purpose.

Prior to propounding my parliamentary inquiry, I should like to say that I note in the Record at page 10 a motion of the Senator from Texas, Mr. Johnson, to lay on the table the Anderson motion.

I also note that a unanimous-consent agreement was arrived at which would permit us to have an orderly discussion of this crucial matter of Senate rules today. Therefore, Mr. President, my parliamentary inquiry is this:

In light of these developments and in light of what transpired yesterday, and thus far today, under what rule is the Senate presently proceeding?

I should like to have the Chair's view on that question.

The VICE PRESIDENT. The Senator from Minnesota is aware that the answer to that question is that the Senate is proceeding under the unanimous-consent agreement. The Chair is cognizant of the fact that the Senator from Minnesota and other Senators will propound parliamentary inquiries relating to this subject and, consequently, it would perhaps be helpful if the Chair indicated by a general statement the Chair's opinion in regard to the parliamentary situation in

which the Senate will find itself after the vote which will be taken on the motion to lay on the table.

The Chair emphasizes this because, strictly speaking, a parliamentary inquiry is for the purpose of guiding the Senate in its deliberations so that the Senate will know the effect of votes or other actions which are taken on specific matters. Therefore, the statement which the Chair now makes relates specifically to the question of what the parliamentary situation will be as the Senate votes on the matter currently being discussed. That question, and others which have been discussed in the debate today, in effect, go back to the basic question, Do the rules of the Senate continue from one Congress to another?

Although there is a great volume of written comment and opinion to the effect that the Senate is a continuing body with continuing rules, as well as some opinion to the contrary, the Presiding Officer of the Senate has never ruled directly on this question. Since there are no binding precedents, we must first turn to the Constitution for guidance.

The constitutional provision under which only one-third of the Senate membership is changed by election in each Congress can only be construed to indicate the intent of the framers that the Senate should be a continuing parliamentary body for at least some purposes. By practice for 167 years the rules of the Senate have been continued from one Congress to another.

The Constitution also provides that "each House may determine the rules of its proceedings." This constitutional right is lodged in the membership of the Senate and it may be exercised by a majority of the Senate at any time. When the membership of the Senate changes, as it does upon the election of each Congress, it is the Chair's opinion that there can be no question that the majority of the new existing membership of the Senate, under the Constitution, have the power to determine the rules under which the Senate will proceed.

The question, therefore, is, "How can these two constitutional mandates be reconciled?"

It is the opinion of the Chair that while the rules of the Senate have been continued from one Congress to another, 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 22 in practice has such an effect.

The Chair emphasizes that this is only his own opinion, because under Senate precedents, a question of constitutionality can only be decided by the Senate itself, and not by the Chair.

At the beginning of a session in a newly elected Congress, the Senate can indicate its will in regard to its rules in one of three ways:

First, it can proceed to conduct its business under the Senate rules which were in effect in the previous Congress and thereby indicate by acquiescence that those rules continue in effect. This has been the practice in the past.

Second, it can vote negatively when a motion is made to adopt new rules and by such action indicate approval of the previous rules.

Third, it can vote affirmatively to proceed with the adoption of new rules. Turning to the parliamentary situation in which the Senate now finds itself, if the motion to table should prevail, a majority of the Senate by such action would have indicated its approval of the previous rules of the Senate, and those rules would be binding on the Senate for the remainder of this Congress unless subsequently changed under those rules.

If, on the other hand, the motion to lay on the table shall fail, the Senate can proceed with the adoption of rules under whatever procedures the majority of the Senate approves.

In summary, until the Senate at the initiation of a new Congress expresses its will otherwise, the rules in effect in the previous Congress in the opinion of the Chair remain in effect, with the exception that the Senate should not be bound by any provision in those previous rules which denies the membership of the Senate to exercise its constitutional right to make its own rules.

Senator TALMADGE. Counsel for the committee has handed the Chair a statement by Senator Ives, of New York, which we will insert in the record at this time.

(The statement referred to is as follows:)

STATEMENT OF HON. IRVING M. IVES, A UNITED STATES SENATOR FROM THE STATE OF NEW YORK

These hearings, and the action which develops from them, will determine whether the Senate, for another Congress, is to make a decision on certain vital matters. The fundamental issue here is whether the Senate shall be an effective legislative instrument on all items which come before it, or shall continue to be the only legislative body in the country which can be utterly hamstrung whenever a minority feels like hamstringing it. The principle of majority rule is at stake.

We are concerned here specifically with the question of amending rule XXII and of repealing section 3 of rule XXII. I would invite your attention at this point to the historic opinion of the Vice President of the United States, delivered in the Senate chamber last January 4.

"Any provision of Senate rules adopted in a previous Congress," the Vice President said, "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," the Vice President added, "that section 3 of rule XXII in practice has such an effect."

Now of course this is only one man's opinion, as the Vice President himself pointed out. A question of constitutionality can only be decided by the Senate itself, not by the Chair. But I would also point out that when the issue went to a vote that day, 38 Senators went on record as indicating they felt the Senate in each Congress had a right to change the Senate rules. This is the largest number of Senators ever thus to vote on this specific question.

In other words, times are changing, opinions are changing, and the timehonored institution of the filibuster is ultimately doomed. It can be kept alive a good long time, I admit-by use of the filibuster. The issue of whether or not the Senate is a continuing body can be filibustered before this subcommittee, in order to preserve the filibuster. The issue can be filibustered, and thus delayed, in the full committee; it can be filibustered on the floor.

But to my mind, the question of whether the Senate is a continuing body is not material. Let us assume it is a continuing body. Does that justify the assumption that the rules continue? The fact that something always has been done in a certain way is a footless argument for continuing to do it that way if a majority of the people concerned wish to do it differently.

Again I would invite your attention to the words of the Vice President last January 4, and I quote him :

"It is the opinion of the Chair that while the rules of the Senate have been continued from one Congress to another, 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."

The Constitution says that the Senate "may determine the rules of its proceedings." The fact is that at present the Senate cannot determine the rules of its proceedings whenever a minority, and it can be a very tiny minority, is opposed to such a determination.

I believe that the Senate should have the power to act if 49 or more members believe that such action is necessary. This principle is set forth in Senate Resolution 28, which I introduced. I feel it is vital to an effective functioning of the democratic process that we do not continue to put ourselves in such a posture that the will of the minority can prevail in blocking a Senate decision. I also feel it is equally important that we do not, in amending the Senate rules, put ourselves in a position whereby a minority could take an affirmative action either; for example, vote cloture. Majority rule cuts both ways, or should; the important principle is that the majority prevail.

Nor am I so wedded to the language of Senate Resolution 28 that I would be unwilling to agree to a different requirement, to some other formula, so long as we are able to reach the general objective which we are seeking. That objective is to permit the Senate, while still giving everyone a full opportunity to have his say, to come to grips finally with issues which affect so many of our citizens.

I fervently hope this subcommittee will help to bring to a head this issue of a change in the Senate rules during this session of the Congress, for sooner or later the change must come.

Senator TALMADGE. The next witness is Mr. Tyre Taylor from the Southern States Industrial Council.

Will you come around, please.

STATEMENT OF TYRE TAYLOR, GENERAL COUNSEL, SOUTHERN STATES INDUSTRIAL COUNCIL

Mr. TAYLOR. Mr. Chairman, I have 4 or 5 extra copies of my state

ment.

My name is Tyre Taylor. I appear here as counsel for the Southern States Industrial Council, the headquarters of which are in the Stahlman Building in Nashville, Tenn. My own address is 1010 Vermont Avenue, Washington, D. C.

The council is a regional organization representing all lines of industry in the 16 Southern States, from Maryland to Texas, inclusive. It is governed by a board of, I believe, 103 officers and directors, the last meeting of which was in Hot Springs, Va., on May 23-25 of this year.

At that time resolutions were adopted pursuant to which, Mr. Chairman, I appear here today.

I start with two assumptions, both of which I believe to be valid: (1) The effort further to limit debate in the Senate would never have gained its present impetus and momentum but for the existence of the so-called civil rights issue; and

(2) The effort further to limit debate in the Senate is aimed primarily at the South, the source of much-but by no means allopposition to so-called civil rights legislation.

The council, being a southern organization and opposed to all socalled civil rights legislation, is opposed to further limitation of debate in the Senate. However, in taking this position, it is guided by no considerations of a narrow or sectional nature. Rather, it raises and attempts to answer a question which should be of interest to all Americans and to their elected representatives in Congress. The question is:

Are the movers of this effort to afford additional protection to a few so-called civil rights endangering other rights-right of all the people-minorities as well as majorities-which are far more precious? In other words, are they, in effect, proposing that you throw out the baby with the bath water?

Thomas Jefferson raised the same question when he said in his Manual of Parliamentary Procedure:

The rules of the Senate which allow full freedom of debate are designed for protection of the minority, and this design is part of the warp and woof of our Constitution. You cannot remove it without damaging the whole fabric. Therefore, before tampering with this right, we should assure ourselves that what is lost will not be greater than what is gained.

What are some of the things we stand to lose if Senate rule XXII is changed to provide for cloture by less than a two-thirds vote of a constitutional majority?

One of the things we should lose is the present unique dignity and prestige of the Senate itself.

In the House, majority rule and majority control of the time for debate are not only fully justified, but a practical necessity in so large a legislative body. Moreover, majority rule in the House is justified. for another reason. A Member of that body represents people-the people of his district-approximately 1 of 435 parts of the total population.

But the Senate was established and now exists on an entirely different basis.

When the framers of the Constitution were faced with the problem of what to do about the great disparity in size and population of the States-Georgia, Mr. Chairman, was then the largest State, and Rhode Island the smallest-and were confronted by the firm determination of the smaller States to have somewhere equality of voting power, they hit upon a solution which has since challenged the admiration of the world.

A Senate was provided for-a continuing body in which each of the States-large and small, rich and poor should have absolutely equal representation.

It was further provided in the Constitution that no State could be deprived of its equal representation in the Senate without its own

consent.

Thereafter, until the advent of the First World War, the Senate operated under a rule of absolutely free debate.

Someone has said that it served as a saucer into which the hot actions of the other body could be poured to cool.

Senator TALMADGE. Will the witness yield at that point?

Mr. TAYLOR. Yes, sir.

Senator TALMADGE. I believe George Washington made that statement; did he not?

Mr. TAYLOR. Thank you, sir. I did not know who had made it. "That remarkable body," William Gladstone once remarked of the Senate, "the most remarkable of all the inventions of modern politics."

A Senator-any Senator-could get on the floor, present all the facts as he saw them in connection with any issue, turn it inside out and upside down, test it, inquire into its fairness, justice, and practicability-in other words, and to an extent limited only by his own ability, turn the light of truth into all the dark places.

Indeed, it was his solemn obligation to do this. He represented his State. He was his sovereign State's ambassador to the Federal Government in Washington.

Of all the statements I have seen on this subject, one by the late Senator Henry Cabot Lodge is perhaps the most penetrating. As a Representative, Mr. Lodge believed in cloture by majority vote, and himself was the author of a force bill. Then he came to the Senate where, in the course of time, his views radically changed. He said:

Cloture is a gag rule. It shuts off debate. It forces all free and open discussion to come to an end. Such a practice destroys the deliberative function which is the very foundation for the existence of the Senate. It was the intent of the framers of the Federal Constitution to obtain from the upper Chamber of the Congress a different point of view from that secured in the House of Representatives. Thus the longer time, the more advanced age, the smaller number, the equal representation of all States. Careful and thorough consideration of legislation is more often needed than the limitation of debate.

No wonder the Senate of the United States became known and revered as the last bastion of free, untrammeled debate.