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who always was a strong believer in the “previous question” rule, because he had long experience in the House, very early after the adoption of rule 22 in its present form sought to change it by going to a majority rule. And my recollection is that he obtained or had, in support of his motion, only a mere handful of votes, I do not recall the number, but I am very sure it was less than you could number on one hand, according to my present recollection. I know also that while Senator Underwood had that view--he was, when I came to the Senate, the majority leader-he held that view very strongly, but nevertheless he made use of the existing cloture rule, rule 22.
Senator HAYDEN. Mr. Chairman, the only precedent, so to speakand it is not a precedent—for a constitutional majority is a requirement in a number of State constitutions that there must be a majority of the total membership of the State assembly or of the State senate recorded in favor of a bill in order that it may be enacted.
Senator GEORGE. That is true, that is true in some States, undoubtedly.
Senator HAYDEN. Some State constitutions require that the total vote to pass a measure must equal a majority of the total membership. Senator GEÓRGE. That is any ordinary piece of legislation.
Senator HAYDEN. Such a constitutional provision is proper in the case of a State legislature primary because the sessions are short, and it requires the members to remain in attendance; whereas, Congress remains in Washington for a month at a time, and the public business requires Senators to leave at times. The basis for the application of such a rule to Congress therefore does not exist.
Senator GEORGE. That is true.
The only reason that I know, coming directly to your question, is one that I tried to point out. Gouveneur Morris recounted the rather long list of provisions in the Constitution as finally adopted which required a two-thirds vote, and he reached the conclusion that that requiremnt was proper. He referred to three specific instances; expulsion of a member; the overriding of a veto; and the submission of a
; constitutional amendment. But he reached the conclusion that in our form of government there should be a substantial and not a mere majority in order to work those changes, and that undoubtedly must have been the rule that he thought was sound for that particular
And he was mindful of factionalism which always springs up in any type of popular government, just as Washington was and just as all of the elder statesmen were.
I thank you again, Mr. Chairman.
Senator WHERRY. I want to ask you another question, if you don't mind?
Here comes a confirmation of a nomination in our Senate, and we think it is very important-I am not referring to any particular nomination now, although I could mention one. That is done by a majority vote, and yet in importance it looks to me that it is about as important as anything that the Senate concurs in. Why do we have a majority vote on confirmations of nominations, and how do you harmonize that with your two-thirds vote on, say, expulsion of a member? It seems to me that it is just as important to protect the interest in a confirmation as it is to expel a member.
Senator GEORGE. I think you must consider that it is of the highest importance that the States be represented here by their chosen representatives, and in the case of the Senate, that the Senate has two distinct natures, one purely legislative, not to mention its judicial functions at all, and the other more or less ambassadorial. It is the association of coequal States in the affairs of government.
Now under the Constitution the President may appoint Ambassadors and other public officers by and with the advice and consent of the Senate. He can conclude treaties, but only if two-thirds of the Senate concur, because in the case of a treaty you have an organic law of very high dignity, it is a part of the Constitution, because the Constitution, treaties and laws passed pursuant thereto, become our supreme law, and therefore the two-thirds majority.
I do not know, of course, why they might not have thought that even the appointment of high public officials was a matter of such great consequence as to require a substantial majority, putting it in those words as distinguished from our contrasting it with a mere majority. But they didn't do it, and there is the Constitution, and that is the way it stands.
Senator WHERRY. I can see where in the House, the previous question” rule applies, because the House represents the people and you are close to the people, and it changes each 2 years
Senator GEORGE. Yes; and it was from the beginning, of course, known to be potentially a large body, a very large body.
Senator WHERRY. Unwieldy. I can see where that rule is applicable, and I can also see the argument just advanced here about the States, where you have your two Senators, and we represent the States rather than the people. And yet the Senate confirms these important treaties by a two-thirds vote; but we confirm an appointment now, that may negotiate by Executive agreement many treaties that don't even come before the Senate for ratification, we confirm appointments by a majority.
I studied this question the other night after Senator Overton made his argument, and I got totally confused, apparently, on the value of when we should use a two-thirds vote and when we should use a majority vote. It seems to me most difficult.
Senator OVERTON. May I add something on the confirmation of nominations?
Senator WHERRY. Yes. I am asking for light here, and I think the committee is.
Senator OVERTON. Of course, in framing the Constitution the framers sought to make things as concise as possible, and one rule applicable to any given case. Now nominations come in not only for important offices, but for various subordinate offices as, for instance, postmasters. and to say that in all cases--and that is probably what they would have had to say, they would have had to adopt one rule—that the confirmation of nominations should be by a two-thirds vote, would appear, if I may say so, almost absurd when you come to these minor offices. Take promotions in the Army and Navy, for instance, and appointments to the office of postmaster, it is not necessary to have a two-thirds rule there, Mr. Chairman.
Senator WHERRY. They are seldom objected to; anyway it doesn't make much difference. It is usually in the confirmation of the topflight men that your fight is made. It doesn't make much difference whether it is a majority or two-thirds when a nomination isn't opposed.
Senator OVERTON. I have seen a bit of fight waged over nomination for a court judgeship. Of course, that is fairly important.
a Senator WHERRY. Why shouldn't you confirm them by a two-thirds vote if you expel a Senator by a two-thirds vote?
Senator OVERTON. That is true, and if you are going to impeach the same judge it takes a two-thirds vote to remove him from office. But you can put him in by a mere majority. There is much to what you say. The only reason that occurred to me as to why the framers of the Constitution had the majority rule in mind when it came to the confirmation of nominations was that there had to be so many officers which had to be confirmed, which involved the nomination of very minor officials.
Senator HAYDEN. We should also remember that we have a Government of three separate and coequal branches, the legislative, the judicial, and the executive. The Senate is allowed to perform part of
, an executive function by confirmation. That right is not conferred upon the House of Representatives—it is only extended to the Senate. We could have had a Government that kept the three branches even more distinct by allowing the President to name all officials without coming at all to the Senate for confirmation.
Senator WHERRY. Was there ever a rule that provided confirmation of nominations by a two-thirds vote?
Senator OVERTON. No; because the Constitution has always said by a majority vote.
Senator George. There was a long, long debate in the Convention on the Constitution as to how appointments were to be made. It was a debate that extended over days and days and that discussed every conceivable method of selecting public officers, and they finally said, “No; we will not leave it to the House; we will let the Senate, however, advise and consent to the appointments of these public officials."
Senator WHERRY. Of course I realize that the administration is responsible for their nominations, and to a great extent I have gone along with that, because I feel that if they are responsible they have a right to select their administrators. I think that is sound. But we do have a legislative responsibility that is just as important as the Executive's in making the nominations, and that is to confirm. It does seem to me, especially now since the practice has grown up where we execute by agreements rather than by treaty, that the appointment of these administrators should be confirmed by a twothirds vote where protection to the minority is just as important as any other place. Do you see what I mean? It is a little hard for me to harmonize such a practice as a majority vote on a nomination and at the same time go to a constitutional majority on cloture and then to a two-thirds vote on expulsion. I am in total agreement with the amendments we ought to make here driving at what we can filibuster. I think a person has a right to a vote on his issue some
time, and I think the least this committee can do I feel this much about it myself now—is to adopt the elimination of the provisions of rule 3 and rule 6, so that you can't filibuster by attempting to amend the Journal, or, rule 6. "I think that is only sensible and I agree in toto with that.
I was surprised the other day when I found out that by using a constitutional majority there would only have been a difference, in 30 years, on three votes. That was pretty well put up. And I wondered if there was any precedent any place where you could pick that number 49. Apparently there wasn't, and I suppose that there is just as much argument in favor of the majority for confirmation as there is the other way, except it is the Senate and we are protecting the States. It seems to me that all of the values of expelling a Senator, impeaching a Senator, or confirming some important person, ought to be more or less on the same level all the way through. If am wondering if anybody ever gave any thought to that. We are starting here with a new resolution to do something different than they have done here in all these years, if it is adopted, in dropping from twothirds to a constitutional majority, or a majority of those present and voting. Yet at the same time we retain å rule where it takes twothirds to expel a man from the United States Senate. It seems to me that one has almost the same value as the other. Maybe I am wrong, but it seems to me there ought to be some harmony in all these rules in their value as they are applied to ratification of treaties, confirming nominations, expelling Senators, and impeachment, and so forth. I can't see much difference. Do you agree with that, Senator Overton ?
Senator OVERTON. Very largely I do.
Senator GEORGE. I think there is a great deal of force in what you have to say:
Senator OVERTON. Of course we can't change the constitutional provisions.
Senator WHERRY. I understand that. Here you have your Executive agreements. We are required in the Senate to ratify treaties by a two-thirds vote, and yet some of the matters that certainly I thought were or should have been the subject matter for treaties, have been covered by an Executive agreement and passed by a majority vote.
Senator OVERTON. I am thoroughly in accord with you on that. Senator GEORGE. That is very true.
Senator WHERRY. Are there any other questions that anyone would like to ask Senator George? If not, we thank you for coming, Senator, and now we will be glad to hear from Senator Hoey.
STATEMENT OF HON. CLYDE R. HOEY, UNITED STATES SENATOR
FROM THE STATE OF NORTH CAROLINA
Senator HOEY. Mr. Chairman and members of the committee, I want to thank you for extending this time, as I had to go over to Governor Gardner's funeral last week.
I haven't had an opportunity of reading the statements previously presented and have prepared a statement which, therefore, may cover some of the matters previously treated, but it is brief anyway.
I am earnestly and sincerely opposed to the proposed change in the rules of the Senate which would permit the adoption of cloture by a bare majority vote, instead of requiring two-thirds, as is now provided. The adoption of such a change is neither desirable nor essential. The rules of the Senate, properly interpreted and applied, are both efficient and effective and the business of the Senate can be expedited in an orderly and satisfactory way, without resorting to the method of limiting debate by a simple majority vote.
To adopt a measure of this character would do violence to all the cherished traditions of the Senate, where full and free debate has always obtained. The Senate of the United States is the last and only forum where unlimited discussion is now possible and the only place where debate may be carried on until the American public can be informed as to the character of legislation pending, the adoption of which would jeopardize the public interest. It is of prime importance that this channel shall be maintained so that nefarious legislative schemes and vicious measures may be properly exposed before the Senate is called upon to vote upon them.
There is some force in the proposition to amend the rules to include motions as well as measures so that cloture can be applied to any pending business, and I would not object to this change, if we retain the substantive prvision of requiring a two-thirds vote of those present to apply it. This amendment would prevent the work of the Senate being impeded by motions relative to extraneous matters and extended debate upon them.
The passage of legislation only requires a majority vote but practically all other matters requiring the consideration of the Senate-except confirmations, to which you have referred—are subject to the two-thirds rule. No official can be impeached except by twothirds of those voting. A Senator cannot be expelled unless twothirds of the Senators agree. The Presidential veto can only be overridden by a two-thirds vote. All treaties must receive a similar vote before they can be ratified. No amendment to the Constitution can ever be submitted to the several States for ratification until two-thirds of the Senator voting have approved, even though it is still required that favorable action shall be taken by threefourths of the States before such amendment will become effective.
In the light of these facts it certainly cannot be contended that there is anything unusual or repressive in the rule requiring twothirds of the voting Senators in order to apply cloture. That has been the rule ever since cloture was first authorized, and prior to that time there had been no provision for applying cloture to debate upon any basis, for many years.
Why the present insistent urge to amend the rules? Who is asking for it and what pressure groups are demanding it? It must be generally agreed that minority pressure groups are the vocative advocates of this limitation of debate, and presumably for their protection and benefit. Yet it is ironical that the very thing these minority groups are seeking to do is to deprive the minority in the Senate from their most effective method of defense against dangerous and oppressive legislation. I am using the term “minority"