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as applied to those who oppose certain unwise and vicious legislation, rather than to denote political affiliation of Senate Members. I recall with satisfaction that two of the most effective speeches made against the adoption of the FEPC measure and the application of cloture to close debate upon that issue during the last Congress, were delivered by the present distinguished Majority Leader, Senator Wallace H. White, and the able Senator from Colorado, Hon. Eugene D. Millikin.
It is interesting to note the repressive and dangerous measures that have been defeated by virtue of a filibuster made possible under the present rule of applying cloture. Certainly if the rule which is now proposed had been in effect, the bill providing for the reorganization of the Supreme Court would have been adopted, much to the detriment of our country and our whole judicial system. The fact that there was full and free debate, unhampered and unlimited, furnished the opportunity to acquaint the country with the contents of that bill and its sinister implications, and this prolonged discussion resulted in its defeat.
Senator Millikin, in his speech in the Senate on February 9, 1946, dealt so effectively with this question of minority and majority rights that I wish to embody in my statement the following extracts from his very fine presentation of this subject, as follows:
Now as to cloture: The Senate of the United States is one of the few legislative forums in the world which operates on, and guards the right of, free speech. If my country were confronted with the horrible choice of surrendering all of the individual rights of its citizens under our Constitution save one to be selected by it, I should unhesitatingly counsel the preservation of the right of free speech, for so long as this right remains unimpaired all other rights, if lost, may be regained.
History confirms this. Every dictator knows it well and selects free speech as the first victim of his aggression.
Is the right abused? Of course, it is abused. It is abused everywhere it exists-it is abused at times in the Senate. But there are reasonably adequate measures against abuse which do not destroy or seriously violate the right.
We have laws against obscenity. We have laws against speech which incites public disorder. We have laws against slander. Men have always had their own ways, outside the courts, some of them regrettable and to be abhorred, to end or punish on the spot certain forms of personal insult.
The Senate has its law for temporarily ending free speech in this Chamber. It is by operation of the rule of cloture which requires a two-thirds vote.
I have heard it argued that this is unfair to the rights of the majority, that the operation of the rule subjects the majority to the will of the minority, that this is a violation of democratic practices, from which the conclusion necessarily follows that a majority of one should have the power to do as it pleases.
There is so much error in this argument and it has not much significance because of its studious cultivation by people who do not know better, by people who should know better, and by those who wish to destroy our system of Government that it calls for full treatment. But on this occasion I shall limit myself to touching on some of the highlights of the matter in rather summary fashion.
It is manifest that if a majority of one could end free speech in the Senate it would not be long until there would not be any free speech.
The majority of any party in power would find the suppression of free speech a convenient method of expediting what it conceived to be useful and urgent legislation. It is always annoying to have errors exposed, and it would not be long until a majority of one decided that for political purposes it should retain the illusion of infallibility by preventing exposure here of its errors. And then it would not be long until corrupt and even more ominous legislation might be shepherded through this Chamber in enforced silence.
It should never be forgotten, I respectfully suggest, that the rules of a legislative body in a country which understands, appreciates, and desires to conserve the principles of human freedom are adopted not to enhance or render unshakable the power of the majority of its members, but rather to protect those in the minority.
The other day in his classic speech on cloture, the senior Senator from Maine (Mr. White), in developing the same theme in a manner which I cannot equal, found support in Jefferson's Manual on Parliamentary Practice which appears on page 237 of our Senate Manual. It deserves frequent repetition. I read from what is said there :
"Mr. Onslow, the ablest among the Speakers of the House of Commons, used to say it was a maxim he had often heard when he was a young man from old and experienced members that nothing tended more to throw power into the hands of administration and those who acted with the majority of the House of Commons than a neglect of, or departure from, the rules of proceeding; that these forms, as instituted by our ancestors, operated as a check and control on the actions of the majority; and that they were, in many instances, a shelter and protection to the minority against the attempts of power. So far the maxim is certainly true, and is founded in good sense; that as it is always in the power of the majority, by their numbers, to stop any improper measures proposed on the part of their opponents, the only weapons by which the minority can defend themselves against similar attempts from those in power are the forms and rules of proceeding which have been adopted as they were found necessary from time to time and are become the law of the House, by a strict adherence to which the weaker party can only be protected from those irregularities and abuses which these forms were intended to check and which the wantonness of power is but too often apt to suggest to large and successful majorities.”
When we talk of the rights of the majority of one, when we would give such a majority all-embracing power over our actions here, we simply overlook the fact that in this Chamber, and outside of it, rules and practices and law, out of the
sdom of cent ies of experience, provide that in many of the most important decisions in life those rights are qualified so as to protect the minority.
The rights of the minority have not been imposed by a minority; they have been freely granted by majorities which realize the fact that majorities are not always right, that there is an inherent tendency in majorities to oppress minorities, which realize that under natural or moral law the individual and minority groups have certain rights which should not be subjected to the caprice of others, no matter how numerous, that these minority rights by their nature and by the formal mandates and consents and relinquishments of power, by thoughtful, just, and civilized majorities, when they are engaged in laying out the long-term rules for the government of all, are truly and deservedly unalienable.
I shall not consume further time of the committee. The summation made by Senator Millikin is so clear and concise that I wish to close with his unanswerable argument. I cannot believe that the Senate of the United States is willing to change this fundamental rule and to transfer to a majority of one of the right to close debate and to limit free speech in this great world forum. I trust the committee will not so recommend.
Senator WHERRY. Are there any questions? Senator Hoey, you have reference to the vote rather than to the corrective amendments here involving 3 and 6!
Senator Hory. That is right.
you can justify not consuming the time of the Senate in dealing with extraneous matters, but on the fundamental thing I think we ought to retain the substantive provision of requiring two-thirds in order to limit debate.
Senator WHERRY. What do you gentlemen think about the Morse resolution, in the event that the committee should determine that they should adopt that resolution, providing for only a majority of those present and voting, with a safeguard of giving each Senator 3 hours and the right to yield his time to any other Senator? In his testimony he thought maybe they could reduce that to 2 hours, or, I believe he said, to not less than an hour and a half. What do you think about that provision?
Senator Hory. I think the vice about that is that it provides a measure and means by which a bare majority of even one can stop it.
Senator WHERRY. By yielding their time?
Senator Hory. Yes; and there is this about it. It is not a question of whether you have 1 hour or 2 hours, or whether it is going to run to 4 days or 5 days, but it is a question of whether or not a bare majority of the Senate is to be given the right to cut off debate at any given, definite time.
Senator WHERRY. Then you think that instead of it being a protection or sa feguard it would be used the other way?
Senator HOEY. Absolutely. I don't see that that would be any benefit in the world. What is the difference if you are going to get a few more hours; but if you are going to say, “Your time is limited," and debate will be closed, not today but tomorrow. There is no difference in the world if it is just a matter of setting the time, whether you make it 2 days or 3 days or 1 hour or 3 hours for a Senator.
Senator WHERRY. Referring to the Pepper resolution, there is a difference there that hasn't been mentioned, and I wanted to call it to the attention of you three men while you are here. Perhaps you have gone through it and understand it. But in the event that the Pepper resolution should be adopted, it provides that after 10 days' debate, then you apply this new rule of a majority present and voting. Prior to that time, as I understand it, the old rule would be applicable. Am I right in that interpretation ?
Senator HAYDEN. Yes.
Senator Hory. I don't think there is any merit to that, it is the same as the others. The vice, I think, is in letting a bare majority close debate. I think if you are going to take as important a step as that, and as unusual, that it ought to require two-thirds of those voting to apply that rule to stop debate. The mere fact of giving 10 days I don't think would mean anything.
Senator WHERRY. There would be this to think about. In the event you were getting up to the end of a session and had to wait 10 days to apply the rule, you might not get to have the rule applied on a majority vote, but under the present rule
Senator HOEY (interposing). That would be at the end of the session.
Senator WHERRY. Isn't that when you usually get a filibuster?
Senator WHERRY (interposing). Oh, of course we have had them at other times. I just wanted to get your reaction.
Senator Hory. Frequently, in other years, the filibusters have come toward the close of a session, and especially was that true when the sessions expired by limitation.
Senator WHERRY. I suppose you take the position of Senator George, and that is that the important thing is the vote, whether it is a constitutional majority, or a majority of those present, or two-thirds?
Senator Hoer. Yes. I think there is another thing with reference to this two-thirds vote. I think that that rule undertakes to provide in a sort of fashion like the dikes on the Mississippi River provide for controlling the floods. When the stream is within its banks and there is no flood, no overflow, you don't need the dikes, but in times of flood when the river overflows, and devastation is about to take place all along the countryside and over the villages, that is the time of stress and emergency and crisis, and then the dikes come into play and undertake to save the day. I think the two-thirds rule is the rule to be applied in the hours of stress and emergency, and come to the relief of a minority when it appears in their judgment that very detrimental legislation is about to be passed without the country being adequately informed and warned of its danger. I believe this twothirds rule performs the function of a dike for the Senate.
Senator WHERRY. Do you care to express any observation on the question I raised with Senator George a moment ago on confirmations?
I Senator Hory. I have no objection to confirmations requiring a twothirds vote. Senator WHERRY. I am asking your opinion.
Senator Howy. Of course, as you have indicated, that has never been the rule, but I can see no serious objection to it. As you mentioned, practically all the confirmations go through without any serious objection, unless it be one about which there is serious controversy, and if there is a serious controversy I can see no objection to requiring a two-thirds vote for confirmation.
Senator OVERTON. That would require a constitutional amendment.
Senator OVERTON. I would like to trespass a brief moment on the time of the committee, if I may, having already previously testified?
Senator WHERRY. Go ahead, Senator.
Senator OVERTON. There is a book entitled "Filibustering in the Senate," which was written in 1940 by Franklin L. Burdette, who I understand is a professor at the University of Maryland, and without reading them I would like to have two pages of excerpts from that book inserted in the record, if that is permissible?
Senator WHERRY. That may be done, and they will be inserted in the record at this point.
(The excerpts are as follows:) The following are abstracts from a book, "Filibustering in the Senate," written in 1910 by Franklin L. Burdette.
During the filibuster on an antilynching bill in January of 1938, Senator McNary, the Republican leader, announced he would vote against closture. All but two Republicans, he stated, sincerely favored the bill. He said they were willing "To remain here from sunrise to evening star and from evening star to sunrise in order to have the bill passed
but Mr. President, I am not willing to give up the right of free speech and full untrammelled opportunity for argument. That right is the last palladium, it is the last impregnable trench
for those who may be oppressed or who are about to be oppressed. It may be the last barrier to tyranny” (p. 196).
With reference to the proposition of ruling Senators out of order because of irrelevancy, Mr. Burdette has the following to say: “In later years the regular practice now a part of the Senate and tradition, has been that no Senator may be taken from the floor for irrelevancy in debate. Obviously, a ruling that a speaker is irrelevant must, in some degree, be arbitrary, for no man can say with certainty that a remote digression may not be drawn in as an illustration bearing upon the subject at hand. If relevancy were too strictly construed, Senators might under some circumstances be severely handicapped in the presentation of supporting arguments” (p. 220).
Mr. Burdette describes the former Vice President, Charles G. Dawes, as an energetic campaigner against filibuster. In this discussion, Mr. Burdette states, "Among the opponents of majority cloture, for which General Dawes so enthusiastically campaigned, was the senior Senator from Nebraska, George W. Norris. Believing that filibuster should be discouraged, nevertheless he denounced curtailment of free speech and limitation of extended argument in the Senate as dangerous to sound and well-considered legislation” (p. 226).
Mr. Burdette makes the following significant statement: "The problem of dilatory tactics will exist to some degree so long as there are conflicts between majorities and minorities. The solution, whatever it is, will never be found to lie wholly in a set of rules. It must rest, in part, upon the election of legislators with a keen sense of public responsibilty, men who will never allow political strife to thwart a need for action” (p. 240).
As short a period ago as June 1939 the then Republican minority participated in an extensive filibuster on the renewal of the Presidents's authority over the valuation of the dollar. Among those participating, who are now Members of the Senate, were Senators Taft, of Ohio, Lodge, of Massachusetts, and Vandenberg, of Michigan (pp. 220–226).
In July 1939 Senator Vandenberg, near the close of the session, began a filibuster on a joint resolution authorizing Government sale of military and naval equipment to any other American Republics. Senator Pittman, who had charge of the resolution “reluctantly allowed the joint resolution to be relegated to a place among bills which could not be considered.”
Senator WHERRY. I have heard Members of the Senate who are here now express themselves that they just simply would never sign a cloture petition because they felt that it was a limitation upon freedom of debate. I don't want to ask any personal questions. I have taken a different position. I think that there comes a time when they are entitled to have a vote. I can conscientiously support a cloture petition on the theory that I think, after sufficient debate, they should have a right to a vote. How do you feel about that, Senator Overton ?
Senator OVERTON. I think there is a great deal in what you say. Personally I have never signed a cloture petition and I have been here for a good many years, I came to the Senate in 1933, 14 years. I have never signed a cloture petition and, frankly, I never expect to sign a cloture petition, but I don't quarrel with one who does sign a cloture petition for the very reason, Mr. Chairman, that you have given. I think that there does come a time when there ought to be an end to debate, that is, if a substantial majority of the Senate, in their wisdom, think that debate has proceeded far enough.
Senator WHERRY. And a vote on the issue that is at stake?
Senator OVERTON. Yes. I don't subscribe to a bare majority shutting the mouths of Senators and stopping any other debate.
Senator WHERRY. I understand that. Senator Hoey, how do you feel about it?