No person shall be convicted on impeachment without the concurrence of two-thirds of the Senators present (art. 1, sec. 3). Each House, with the concurrence of two-thirds, may expel a Member (art. 1, sec. 5). A bill returned by the President with his objections may be repassed by each House by a vote of two-thirds (art. 1, sec. 7). The President shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur (art. 2, sec. 2). Congress shall call a convention for proposing amendments to the Constitution on the application of two-thirds of the legislatures of the several States (art. 5). Congress shall propose amendments to the Constitution whenever two-thirds of both Houses shall deem it necessary (art. 5). When the choice of a President shall devolve upon the House of Representatives, a quorum shall consist of a Member or Members from two-thirds of the various States of the Union (amendment 12). A quorum of the Senate, when choosing a Vice President, shall consist of two-thirds of the whole number of Senators (amendment 12). The Constitution, therefore, does not give recognition, in all cases, to the right of the majority to control. Senator WHERRY. How do you reconcile that with the two-thirds required for impeachment, and so forth? That is a strange thing to me. Here you have a constitutional requirement that two-thirds of the membership of the Senate has to be present. Right up at the top of your list you have a requirement of two-thirds of the Senators present to impeach a person. That is a strange thing, isn't it? It is to me. Senator OVERTON. Well, one was probably considered more important than the other. Senator WHERRY. I just wanted to get your reaction to that. Senator IVES. One isn't more important than the other, is it? Senator OVERTON. That might be your view but it may not have been the view of the people that passed that. Senator IVES. In one place you are putting a man in and in the other place you are taking a man out. Senator CONNALLY. Isn't the theory behind that that there should be a general representation which would require two-thirds of all the States. Senator WHERRY. As to the President, do you mean? Senator CONNALLY. Yes. Senator WHERRY. However, it looks as if there ought to be the same requirement for putting a man in as for taking him out. Senator OVERTON. By analogy it requires a two-thirds vote of the Senate to expel one single Member. Senator WHERRY. That is right. Senator OVERTON. And yet here is an attempt made to prevent debate on matters vitally concerning various States, or a minority party, on some vital issue, to close the mouths of Senators, maybe 20 or 25 or 30 of them, by a majority vote. Now I think it would be infinitely better if we could dispense with the services of any Senator at any time in the history of the United States by expulsion than that we should so readily prevent freedom of debate on the part of Senators when it comes to a very vital issue. I think that is very worthy of consideration. Senator IVES. Except that I think you have this there, don't you, Senator, that you do have these other checks and balances on what are construed constitutionally to be the vital issues; you do have the fundamental checks and balances between the branches of the Government, and you do have the requirement for a two-thirds vote on this, that and the other thing, as you have already indicated. I don't think that you can say that this exactly compares with the expulsion of a member when you have all these other checks and balances dealing with issues as such, that are imposed by the Constitution. Senator OVERTON. There are no checks and balances outside of the fact that the bill has to pass two Houses and be approved by the President. Senator IVES. That is right. On the other hand the Senate is final with regard to its own Members. Senator OVERTON. Here is a Democratic or a Republican President in power, with a Republican Congress in power, and the party in power wishes to enact legislation that would be very damaging to the minority party. The checks and balances wouldn't amount to anything in that case. It would pass by a majority of the House and get to the Senate, and cloture would be invoked, perhaps rather promptly, by a majority of those present, and it goes to the President and he signs the bill. That would work vice versa equally as well. No doubt you have read Mills on Majority Rule, and the majority is not always right. Senator IVES. That is right. Senator OVERTON. And there come times when there is a considerable agitation about a question and the public goes wild about it, legislation must be adopted right now-and they may be wrong. And freedom of debate is one of the great saving rules of the United States Senate. As Senator Byrd pointed out, I think it has been the just pride of our Nation that here is a body in which there is freedom of unlimited debate, and in which issues can be thoroughly discussed until the public can be fully advised of them, and there can be a reaction on the part of the public so that the public will not be swept off their feet by the blatant orators and persons who have axes to grind, or who want legislation adopted, or who want to get a temporary advantage, and the best effort against legislation of such a character is a body like the United States Senate where there can be a prolonged debate so that the public can, today, through the radio and through the press and what-not, be advised of the real issues involved. Senator IVES. Well, as a matter of fact would swinging this from a two-thirds to a majority greatly reduce debate as far as the educational value of debate is concerned? Senator OVERTON. I like your amendment and Knowland's amendment where it requires a majority of the total body, much more than the other amendments, if any there are Senator IVES (interposing). It occurs to me that there would have to be some real provocation to call for a vote in order to obtain a constitutional majority of the members to back it up. You will have a lot of debate before you will ever get 49 Senators to proceed to go to work and insist that there be a vote, and there should be a tremendously educational discourse going on during all that period of time. I don't think that is going to limit that so much except in the final analysis they are going to say, 49 of them, "We have had enough, now let's take a vote and see how we stand." Senator OVERTON. Well, to answer you very frankly I think we down South are sunk under either rule. Senator IVES. Well, we are not trying to gang up on you; you have the wrong idea. Senator WHERRY. Senator Overton, I do think, and I have studied this question and have gone into it considerably myself since we have started these hearings, that the argument you are now advancing is a most potent one for the continuance of rule 22 as we have it, and that is because here you require a two-thirds vote to expel a man from the United States Senate. Now why do they have this two-thirds rule? That is the point. That is why I asked you a while ago if you had, in your research, obtained any facts or any statistics you could offer as to why they adopted the two-thirds rule. There is some discrepancy between the two-thirds rule for one thing and the same rule for another thing. Senator IVES. Maybe I can answer that. I tried to before but went about it the back way. I think you have the two-thirds rule for Senators because the Senate is the only body passing on its Members; there is no check or balance of any kind on them and they want to be sure that they have a substantial majority to fire a man, if that is what you want to call it. These other things where the rule applies have these checks and balances involved in the Government itself. Senator WHERRY. Maybe I don't quite understand all the argument advanced, but as I get it it, the essence of the Senator's argument-and that is what has been bothering me-is what you do by a two-thirds rule is to require two-thirds to cut off debates, and you require a twothirds vote to expel a man. Now why do you want to drop to a majority to cut off debate if you require two-thirds to expel a man and silence him that way? Senator IVES. In expelling a man the Senate is the only body that takes any action, and that action is final. So far as all these other matters are concerned, of which the Senator spoke, you have all the checks and balances of government. Senator WHERRY. Not until the legislation has passed. Then it goes through the check and balance and has to run the hurdle of the House and the President. That is all right, but during the time that you are getting the legislation out of the way you cut off debate by a majority vote rather than a two-thirds vote, and it might be true, if you had a powerful group that would enforce that rule, that you actually cut off that debate. That is what Senator Morse provides for in his resolution. Then he permits a debate of 3 hours each and yielding time of 3 hours each. Senator BYRD. Senator Pepper provides that, too. Senator WHERRY. That is my understanding of the additional safeguard there. Senator BYRD. The Senator provides that debate should come to a close by a vote of the majority of those present. Senator WHERRY. I can see where you get your checks and balances. I believe I understand that, but until you do come to some determination on legislation in the Senate, if you drop it to a 49 vote you might silence somebody on an argument there by a constitutional majority rule, where otherwise, if you applied the two-thirds vote required on expulsion proceedings, you cut off one voice from being in the United States Senate. It seems to me that in a way they are comparable. Senator CONNALLY. Isn't one of the main reasons for this twothirds-vote rule that they all apply to extraordinary cases? It is a radical act to throw a man out of the Senate; it is a radical act to cut off debate, and it is a radical act to do a lot of these things. The makers of the Constitution said: We are not going to let them do this by just a majority and throw them out; we are going to see that there is a sufficient majority to reflect the considered opinion of the Senate and of the people of the country. Senator WHERRY. Of course, on the other hand, they think it is a radical act when a bare minority can tie up the United States Senate. Senator CONNALLY. Well, they have got a method of handling that Senator WHERRY. But the only way you can break a filibuster is to have the attendance there, and that is quite difficult to do. Senator CONNALLY. That is the fault of the whip. [Laughter.] Senator BYRD. Those who filibuster have the same trouble; in fact, they have more trouble because they have the physical exertion that the other side doesn't have. Senator OVERTON. An instance of no check or balance is where two-thirds of the States propose an amendment to the Constitution. There is mandatory on the Congress. Senator IVES. Except that it has never been used. Senator OVERTON. Now when you submit an amendment to the Constitution it takes a two-thirds vote of both Houses. Also, there is no check on the power of the President. You might say that there is a check through the ratification of two-thirds. Continuing my statement: The first amendment to the Constitution inhibited Congress from making any laws abridging "the freedom of speech." I do not for a moment suggest that cloture is such an abridgment of the freedom of speech as to come within the constitutional inhibition. However, freedom of speech has been justly regarded by the American people as one of the great blessings of our democratic form of government. The traditional practice of the United States Senate has been freedom of speech and freedom of debate on all matters presented to it. The only departure from the rule, outside of the few attempts in the early days of the Senate to resort to the previous question, has been the present cloture rule. That rule, in my humble judgment, goes far enough. It is effective to prevent freedom of debate and freedom of speech in the Senate when two-thirds of the members present vote to end the debate. It should go no further. If we adopt a mere majority rule to limit freedom of speech and debate in the Senate, the time may come when the dominant party may employ the rule ruthlessly against a minority party, and certain sections of the United States, for temporary advantage and gain, may impose a rule against some other section. I have not, Mr. Chairman, read the various resolutions that have been presented to this committee to change the existing cloture rule. It is not necessary for me to do so, as I am against any amendment. Senator WHERRY. I think you should read them, not for your own knowledge but for ours. I think that if you, as able a man as you are Senator OVERTON (interposing). Thank you, Mr. Chairman. Senator WHERRY (continuing). Hunt down and research-I can't understand yet the why and the wherefore for the two-thirds, and the difference between that and the constitutional majority. There must have been some debate on that issue somewhere. Now here everything you have said, as Senator Ives has pointed out, could be taken as an argument in favor of the constitutional 49 vote during the past years since 1917-with the exception of three times-and it has been voted on 20 times. It is just as applicable to those 17 cases Senator OVERTON (interposing). You mean from a practical standpoint? Senator WHERRY. Yes. Senator OVERTON. From a practical standpoint there would be hardly any difference. Senator WHERRY. It is a different thing than amending this rule, as these other resolutions that have come before us provide a majority vote of two-thirds present. Senator IVES. I think you would find that it would be a great deal more difficult to get a majority to do this thing than it would be to get two-thirds. If the majority realizes that the responsibility is to rest on the majority they are pretty slow to act. Senator OVERTON. Not when they have a substantial number to object to the legislation. Senator WHERRY. You will agree that there is a difference between the Knowland resolution and most of the resolutions that have come before this committee? Senator OVERTON. Yes; it is to some extent sugar-coated. Senator WHERRY. Well, I don't know what you want to call it, but the record shows that there has been no difference in the practical results of the two-thirds rule and the constitutional majority rule except in three cases in the last 20 occasions. Senator OVERTON. That is true. I want to be perfectly frank with the chairman and the members. What I apprehend is this, that once you go to the majority of the whole body, under the growing pressure |
