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[From the Hartford (Conn.) Courant of November 27, 1956]
ANOTHER ASSAULT ON THE FILIBUSTER A parliamentary body must operate under rules to achieve orderly and continuing progress in the making of laws. But rules are not always used to guide progress. They are often invoked as obstacles in the path of propc sed legislation. A determined minority can find ways to avoid and obstruct the will of the majority where it is convinced the majority's purpose is undesirable. This is true the world over, whether it is demonstrated by Communists in the French Assembly or by radicals elsewhere.
One of the more aggravating examples is, of course, the filibuster in the United States Senate. Frequent attempts to strengthen civil-rights legislation in this country have run up against the last-ditch opposition of southern Senators. This has been true despite a majority plainly willing to guarantee individual rights. Some years back, in 1949, one of the almost successful assaults on this bastion was underway. The southerners received added support at the last moment when the rules were interpreted in such a way as to allow them to fight twice. This was the so-called Vandenberg ruling, upheld 46 to 41, which permitted the opposition to filibuster against taking up the measure they would normally filibuster.
A group of six northern Democrats has now proposed to attack this ruling. They will move to revise Senate rules to permit a simple majority to limit debate. This proposal is subject to unlimited debate itself. Messrs, Hubert Humphrey, Wayne Morse, Richard Neuberger, Paul Douglas, Pat McNamara, and James E. Murray are men of strong constitutions and stamina. Mr. Morse, in particular, has always been prone to unlimited debate, so long as he himself was talking. But they will need substantial support if they are to overturn this rule. They are appealing for such help, but are not likely to find much of it.
It is their own party that houses the most vigorous opponents of civil rights for Negroes. The Republicans, who have shown some signs in recent years of wanting to get action in this field, may be reluctant to break what they conceive as the tradition of the Senate. And all will be under strong compulsion to avoid getting involved in a fight and a filibuster lasting weeks at a time, when critical legislation may come without warning as a matter of urgency. The six men have a laudable aim, but dubious chances of success.
Yet it is a sign once again of the imperfections of parliamentary government that the Government cannot act to pass legislation to make sure that all men who are created equal are treated equally. If the issue were to be faced squarely, there is no doubt which way the vote would go. But it is concealed and mixed up in a vote on rules that confuses the general public, and allows one segment of the country willfully to block the intent of the Constitution.
(From the Christian Science Monitor of January 5, 1957]
SENATE CLOTURE WORKS ONE WAY It is not quite accurate to say that the United States Senate has no effective way of closing debate. That it can even place rather narrow limits on discussion of certain subjects was illustrated in its disposal of the antifilibuster maneuver of civil-rights advocates.
This was a motion sponsored by northern and western Senators of both parties to provide that the Senate take up consideration of adoption of rules for itself in the 85th Congress. Had the motion been carried, the Senate might have considered revision of the cloture rule (rule 22), which requires a two-thirds majority not merely of those present but of the Senate membership in order to limit debate.
The theory has been that the Senate is “a continuing body” since two-thirds of its Members hold over from one session to another; hence that its parliamentary rules carry over without needing to be readopted. The effect of this theory, plus the fact that Rule 22 does not apply to debate on a change of rules, is to require in practice almost unanimous consent, since any Member may undertake to talk a proposed revision to death.
On the other hand, the proponents of the revision had to work hard to obtain one afternoon of debate on their proposition. The Senate majority leader filed a motion to table it, which in most parliamentary bodies must be voted upon immediately, but an agreement was reached which allowed some 6 hours of discus
sion, after which came the rollcall—more favorable to their cause than 2 years ago.
Thus the Senate succeeded in applying to an important question of procedure very strict limits of debate which it in effect refuses to apply to substantive questions, such as legislation on civil rights. If the Senate persists in its theory of almost unamendable rules as a "continuing body" it may some day find itself in a very tight box.
[From the Denver Post of January 9, 1957]
THE FILIBUSTER IS HARD TO DEFEND To hear David Lawrence tell it the Senate filibuster is an important bulwark for the defense of the Constitution and States rights against a Supreme Court which disregards law and is influenced by psychological theories instead.
The purpose of the filibuster, of course, is to stymie Senate passage by a simple majority of laws to insure that Negroes receive equal treatment with other citizens. The Constitution has always been interpreted to provide for the use of a simple majority vote in the Senate except in a few specific instances.
Unless it had been intended to have the Senate governed by majority rule in ordinary procedures there would have been no point in putting into the Constitution the provision that the Vice President shall have no vote unless the Senators are equally divided.
The Constitution specifies instances in which majority rule is not to apply: for example, a two-thirds vote to ratify treaties, two-thirds to convict in an impeachment case, two-thirds to expel a member, one-fifth to require a yea and nay tally of votes, two-thirds to pass a bill over a Presidential veto.
To this list the advocates of the filibuster would add an extraconstitutional requirement for a two-thirds vote to get any civil rights legislation before the Senate. The concern for the Constitution which they profess sounds empty and hollow when it turns out to be no more than a desire to sabotage the constituational authority to enact legislation by majority rule.
No legitimate States rights issue exists in connection with civil rights legislation unless we are willing to assume that the 14th amendment, adopted after the Civil War, really doesn't mean anything and really didn't change anything.
Before the amendment was adopted there was some question regarding the right of the Federal Government to interfere if State laws said some people could be held in slavery, deprived of the right to vote, etc.
The 14th amendment took jurisdiction over the privileges and immunities of citizens of the United States away from the States and made the Federal Government the protector of the legal equality of all persons, white or black.
When it is argued that the filibuster is necessary to keep Congress from interfering with States rights to discriminate between blacks and whites, the 14th amendment stands in complete rebuttal.
Segregationists are, of course, particularly unhappy with the Supreme Court. Hence the attempts to drag the Court into the argument over the filibuster power in the Senate.
We are told an arbitrary majority of the Court has taken away States rights. Actually, key decisions of the court on segregation questions have been unanimous. The majority was 9; the minority 0.
It is becoming popular to accuse the Court of arriving at its decisions on the basis of psychology. The argument runs this way: The Supreme Court decided, back in 1896, that Negroes would have equal rights in transportation with whites if they were furnished with separate but equal accommodations on trains.
That decision, so reversed by segregationists, was based on a certain psychology--a belief that a Negro's privileges would be protected if he were given a place in which to ride even though his separate status would be a constant reminder to him that he must consider himself inferior and unworthy to associate with whites.
In 1954 the Supreme Court held the theory that separate facilities for Negroes providing equal treatment under law was in error; that experience had shown feelings of inferiority resulting from segregation affected the hearts and minds of Negroes in a way unlikely ever to be undone.
Because the court upset the earlier decision, segregationists accuse it of disregarding law and precedent, although under our system of law courts are constantly reversing themselves when the errors of old decisions become obvious.
They also accuse it of making the new decision on the basis of psychology but they conveniently forget that a certain psychology was implicit in the 1896 decision, also.
There may be a good defense for the use of the filibuster. If so, Mr. Lawrence does not make it, in our opinion, and we can't imagine what it would be.
[From the New York Times of January 10, 1957]
CURBING THE FILIBUSTER
Joint sponsorship by Democratic Leader Lyndon B. Johnson and Republican Leader William F. Knowland of a resolution that would make it a little easier to curb filibusters is an indication of some progress. It is enough to show that the southern Democratic-Republican coalition protecting filibusters is on the defensive, and that there may be a real prospect of dealing a mortal blow to this evil, antidemocratic institution of forcible minority rule. But resolutions like this one have failed before.
What the majority and minority leaders are proposing to do is in effect to restore the situation to something better than its pre-1949 status. For 32 years prior to that the Senate had operated under a regulation providing that two-thirds of the Senators present and voting could shut off debate. It is this 1917 rule to which Senators Johnson and Knowland would now return, while expressly eliminating the present prohibition on limitation of debate on a motion to change the rules.
Two-thirds of those present and voting is an attainable figure on an antifilibuster vote, while two-thirds of the membership-or 64 Senators—is not. Even so, in the 32 years that the more moderate 1917 rule was in operation it was successfully invoked only 4 times. Senator Knowland himself in days past has supported a very much more drastic proposal-namely, the imposition of closure by a majority. Even such an ardent advocate of limiting debate as Senator Paul H. Douglas, of Illinois, intellectual leader of the current battle, is not now suggesting simple majority closure without strings. Senator Douglas proposal is that debate may be shut off by majority vote only after 15 days.
While in any democratic parliamentary body, the minority has to have the fullest protection and must be given every opportunity to make itself heard, there is no sensible reason why it should be allowed permanently to block legislation desired by the majority. Sometimes, in the closing days of a session, the blocking is done by a minority of one. A good statement on the subject was made some years ago : “It seems to me that *** this power * * * to completely block the legislative processes of government is too much power for any responsible person to want and far too much power for any irresponsible person to have." The speaker was Senator William F. Knowland.
[From the Denver Post of January 13, 1957]
TIDE RISING AGAINST FILIBUSTERING
(By Barnet Nover) WASHINGTON.-In politics as in boxing it is the wise man who knows when and how to roll with the punch.
On the eve of the reconvening of Congress many anticipated a knock-down, drag-out fight in the Senate between northern liberals and southern conservatives on the question of altering Senate rules to permit the curbing of filibusters. Only in that way, it was anticipated, could the existing barrier to civil rights legislation be removed.
The fight, it was predicted, would last for days and possibly weeks, split the Democratic Party right down the middle, while embarrassing the GOP members of the Senate as well, and leave scars that might take years to heal.
These predictions proved to be wide of the mark.
In the first place, the debate on the Anderson motion turned out, on the whole, to be unimpassioned and a gentlemanly affair and by unanimous agreement was limited to 6 hours.
The final vote_55 to 38–-showed the majority were unwilling to go along all the way with the contention that the Senate is not a continuing body and,
like the House of Representatives, had to adopt rules of procedure each time a new Congress convened.
The vote was, in part, very deceptive.
Among the 55 who took a position in opposition to the Anderson motion were such men as Senators Knowland of California, Barrett of Wyoming and Mundt of South Dakota who, while unwilling to go along with the contention the Senate had to adopt rules every other year, also favored (as they explained in the course of the debate or later) some limitation on filibusters.
On the other hand, some of those who subscribed to the Anderson motion, Senator Allott, of Colorado, among them-indicated they did so in part because they felt the present system of unlimited debate needed curbing..
In view of this attitude Senate leaders on both sides of the aisle were wise not to let the matter rest with the vote on the Anderson motion. First Minority Leader Knowland and subsequently Majority Leader Johnson made it clear they favored having rule 22 liberalized, at least to the extent of making cloture possible by a vote of two-thirds of the Senators present rather than by twothirds of the entire Senate.
The proposal, Johnson said, “appeals to me as being based upon the middle ground which is the strongest to stand upon. It would permit an orderly change of the rules but would recognize that the rules are continuing and not subject to change merely because of a temporary gust of political wind.”
Then demonstrating anew that he is a political realist, Johnson said: “Unless the Senate takes advantage of the orderly procedures that are available, disorderly procedures will eventually prevail to the harm of the Nation and the different sections of the Nation.”
His stand will not appeal to those who want a death blow given to filibusters. Nor will it appeal to those who for special reasons of their own favor unrestricted and unlimited debate whenever it is to their interests to have such a debate in order to kill legislation they lack the votes to defeat. But it will appeal to the great majority of the Senate.
This majority includes both Eisenhower Republicans and northern Democrats. The issue involved in the effort to curb filibusters is one that transcends party lines and as the fact that the vote for a change of the rules doubled since 1953 makes clear, the tide is rising. A shift of only eight votes would have meant victory for the Anderson motion.
What proved to be impossible in 1957 may be possible in 1959 and 1961. Lyndon Johnson was wise in deciding an attitude of stiff-necked hositility to any change in Senate rules was in the long run bound to prove self-defeating. He was wise in rolling with the punch.
[From the Sioux Falls Argus-Leader of November 30, 1956]
UNITED STATES SENATE MUST STOP FILIBUSTERS If the United States Senate does not do something about filibustering, that august body will not justify the responsibility it shoulders.
Filibustering is an example of a worthwhile principle that is misused.
The thought behind it is that a Senator should have the right to say all that he might want to say about any subject under discussion. It is the privilege of unlimited discussion. The purpose of its establishment was to avoid situations where Senators could be muzzled by majorities who didn't want to hear them or were opposed to their viewpoints.
But this right has been grossly abused. Some Senators from time to time have employed it not as a means of expressing their viewpoint but of creating a delay to prevent a vote. They have gone on for hours and hours and for days and days.
Obviously no such amount of time is required for the full exposition of a Senator's viewpoint.
Certainly the United States Senate is smart enough to develop rules that would permit the full expression of viewpoints and eliminate what is termed the filibuster.
There have been tragic occurrences in the past-incidents where vital legislation was delayed and the business of the Senate virtually stymied because one Member held the floor.
[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:
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