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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
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 alsó 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 statement.
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 inuch—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 peopleminorities 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.