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listened to the debate on the American loan. It came up one night, it was presented by the Government to the House one night, and they had quite a controversy as to how long they should be allowed to speak. The leadership of the House of Commons said, "There will be 3 days' debate," and having a majority to back them up, they had that allowance.
Senator WHERRY. Well, they have a further check, the vote of confidence in the Government, where if the majority is against them and they don't get the vote of confidence, out they go.
Senator PEPPER. I say that while I want to keep this the freest legislative body in the world, it still will be, even if my resolution allowing a minimum of 10 days should be adopted.
Senator Ives. In the consideration of this matter, apparently you have put a great deal of thought on it, and very likely I am transgressing in the question that I am about to raise. Have you given any consideration to giving to the majority leader of the Senate, within certain prescribed limits, following presumably within the purview of your outline there, your plan, the right to move the previous question ?
Senator PEPPER. Well, Senator, there again you give to a majorityI am assuming the majority would support the motion for the previous question-you give the majority the right to cut off debate without any minimum time being assured
Senator Ives. I am talking about putting certain definite restrictions in there in connection with the exercise of that right. I wouldn't give to the majority leader, in line with your thought, unrestricted authority there.
Senator PEPPER. Well, Senator, I would be perfectly willing to give the majority leader the right, by a majority vote on a simple motion, even without debate, to determine what should be on the calendar of the Senate and the general things, general rules pertaining to the ordinary routine of the Senate's business. In fact, I made a statement in the Senate one day to that effect. I said:
I thoroughly subscribe to what the able Senator from Alabama has said. The answer is not in laying aside one piece of legislation for another piece of legislation, but the answer lies in making it possible for the leadership to budget in some reasonable measure the length of time available for debate on pending measures, and then adhere to the budget which has been established.
Senator Ives. You are leaving all this with the Presiding Officer, presumably.
Senator PEPPER. I am only leaving the recognition of Senators, which is already the prerogative of the Presiding Officer. He only puts the question. I do not give him any prerogative which he does not now possess, under this resolution.
Of course, he determines matters of relevancy under this resolution. Senator WHERRY. The Presiding Officer would determine that? Senator PEPPER. Yes.
Senator WHERRY. Let me ask you this question that is brought up now. With this reorganization bill, where your session is supposed to end July 31, do you think that it is more important than ever that we have the cloture rule invoked by a majority?
Senator PEPPER. I do. That makes it all the more imperative, if we are to observe that time for the end of the Congress. You say, “Well, the 10 days might come and we might have to run over"
Senator WHERRY. That is the next question. Say you would get right up to midnight on an important measure before the Congress on the 31st day of July. If you don't file that petition 10 days before the 31st, you haven't eliminated a filibuster.
Senator PEPPER. In that case I propose to leave the present cloture rule, and that would permit two-thirds of the Senators at any time after the elapse of a calendar day—
Senator WHERRY. Is that in your resolution?
Senator PEPPER. What I intend to do is offer this as an additional rule.
Senator WHERRY. This will be an additional rule to the two-thirds rule?
Senator PEPPER. Yes.
Senator WHERRY. So that after you got within the 10-day limit, then you would
go back to the rule we have now, on a two-third basis? Senator PEPPER. That is riglît. If it is an emergency like that, I assume that two-thirds of the Senators would be willing to limit debate.
Senator WHERRY. I understand that now; I didn't before; but you have this as a new rule?
Senator PEPPER. As a new rule in the Senate. Let the other rule continue to prevail.
Senator WHERRY. You can invoke this rule or the other rule, whichever you want to?
Senator PEPPER. Yes.
Senator WHERRY. And you would invoke the other one within the 10-day period, and this one in the event you didn't run up against that dead line?
Senator PEPPER. That is right.
Senator WHERRY. In this one you would get a majority vote, and in the other a two-thirds vote?
Senator PEPPER. That is right?
Senator WHERRY. That provides this interesting question: Why do you feel there should be a two-thirds vote on cloture within the last 10 days, and only a majority vote before that time?
Senator PEPPER. Senator, as I say, in most of these things you have to balance the interest, and I don't know whether we are going to get any changes made--
Senator WHERRY. Do you think, then, that there might be some question coming up in the last 10 days that would be so important that it ought to be provided for, but on the other hand you think there ought to be a safety check there like we have now in order not to invoke it?
Senator PEPPER. That is right.
Senator WHERRY. Then why change the rule at all, because prior to the time of the 10-day limit there are other ways whereby you could probably break the cloture rule.
Senator PEPPER. The trouble is that experience has shown that filibusters go on for days and weeks, and if we could just know and if the
people that were making a filibuster knew that it couldn't last but 10 days, a lot of times they wouldn't undertake it.
Senator Ives. In that connection, what is the point in having any two-thirds at all within that last 10-day period? Why not forget the 10-day restriction?
Senator PEPPER. The trouble is we have never known when the last 10 days are going to be until you pass your resolution for adjournment.
Senator Ives. I meant within that. Why have it a two-thirds business in that period of time!
Senator PEPPER. In the first place, it is always difficult to anticipate just when the session will end unless you pass your resolutions with the other House; and in the second place, generally speaking, especially where we contemplate adjournment at the end of July, we could go over 10 days more without any calamity, I suppose, happening.
Senator WHERRY. And not violate the spirit of the act!
Senator PEPPER. Well, it begins to get hot about that time, too. That helps limit debate. As I said, Senator, in most things I have observed you have to balance interests, and I have tried to balance one off against the other and give the Senate something that would make it better able to carry on its responsibilities. Senator WHERRY. Senator Holland, do you have any questions?
Senator HOLLAND. I would like to make two observations, if I may, one with reference to the comment made by the chairman that it might be well to consider the changing of the two-thirds rule with reference to expulsion. I want to call attention to the fact that that isn't a rule; that that is a provision of the Constitution.
Senator WHERRY. I didn't mean to set that out. I was getting an idea of whether you wanted to get away from this safety valve we have had, not only in expulsion but in treaties. Your criticism is well taken.
Senator HOLLAND. The other thing that I would like to say is that I would like to call attention of my colleague to the fact that at least in one of the important fields that he mentioned, namely, getting the sense of the Senate with reference to an international matter, a proposed treaty, that again you have got a constitutional provision of two-thirds of the Senate, and that you would have to proceed to get anyhing worth while under the present rule of the Senate rather than under the proposed rule, rather than to get anything of any validity in that field.
Senator PEPPER. That is true, but under the present rules it takes two-thirds of the Senate to ever get a vote in the first place; and in the second place, there is a large category of international obligations which may be embodied in the form of executive agreements, which only require a majority of the Senate and the House of Representatives for validating.
I am aware, and I thank my colleague for pointing out, that in the case of a treaty-and I limited my remarks to treaties technicallyin the case of a treaty if the Senate didn't express its vote by twothirds, it wouldn't have the effect of being a measure of what we would do on a treaty. But there is a large category, and I rather hope a category of growing scope and reach, where executive agreements
are entered into, and for the validity of those agreements you only need a majority of the Senate and House of Representatives.
Senator HOLLAND. I wanted to call attention not only to the fact that it would be the present rule that would apply in the case of proposed treaties, but also that the present rule would give much greater flexibility and speed of action than the proposed rule in such
Senator PEPPER. That is true, but under the present rule it would take two-thirds, and under my rule, although 10 days would have to elapse, you could get it by a majority; and I feel that when we enter, as we will in the future, into so many international obligations and commitments of one sort or another, that more and more I hope we
I will apply the principle of a majority of the Senate and a majority of the House of Representatives, and my colleague will recall that our legislature, I believe during his governorship, passed a resolution proposing a constitutional amendment to the effect that more and more should the principle of executive agreement and ratification by a majority of both Houses rather than two-thirds of the Senate, be applied.
I just feel that in the difficult field where there is so much controversy, that to require a two-thirds concurrence simply makes it too difficult to get on with the world's business, and that if a majority of the Senate and a majority of the House of Representatives, plus the concurrence of the Chief Executive, is behind an international commitment, that that is an adequate indication of the will of the country.
Senator WHERRY. Senator, I can remember an instance now which is just the reverse. Take the signing of the International Air Agreement out at Chicago, which was done by executive agreement, with a majority vote. Of course, there was an escape clause that in the event that a country wanted to withdraw within a year, they could serve notice on the signatories and get out. It is my opinion that if that executive agreement had been brought before the Senate in the form of the subject matter for a treaty and required a two-thirds vote, that the executive agreement would never have been signed, and I think in that particular case it would have been a godsend if it had been.
Senator PEPPER. It all depends upon your attitude toward the proposal whether it is a good or bad thing to do it.
Senator WHERRY. An agreement of that kind, that was as farreaching as that—and by the way, I would like to suggest to the able Senator from Florida, the senior Senator, that Senator White filed a majority report in the St. Lawrence waterway hearings, I am just trying to bring it to mind, but it seems to me that in the 5 years in which he surveyed executive agreements as contrasted to treaties, there had been 256 executive agreements brought before the Senate for ratification by a majority vote, and only 31 treaties, and in his opinion the subject matter of all those executive agreements were subject matter for treaties and should have required a two-thirds vote.
Senator PEPPER. That is a subject for debate.
Senator WHERRY. The point I am bringing up is this: There comes a time in the press of legislation before an adjournment when things shouldn't be done hastily, and for that reason you felt that the twothirds, as a guaranty of safety, should be applicable?
Senator PEPPER. That is right.
Senator WHERRY. That during the long period of debate when there is not much before the Senate, there isn't any use to drag it out, and therefore a majority vote would be practieal?
Senator PEPPER. That is right.
Senator WHERRY. But I do think that on those agreements, I certainly want to take issue with you on that point. I think that there are times when we have gone into those agreements too hastily on a majority vote.
Senator PEPPER. Senator, I feel this. I think the courts have repeatedly said that constitutions, even, have to be construed in the light of circumstances as they change from time to time, from decade to decade, and century to century. The executive agreement was not unknown to the founders of the Constitution
Senator WHERRY. And I agree that the obligation of the administration is to negotiate them.
Senator PEPPER. Yes. We all know about the State of Texas and the Territory of Hawaii being admitted by executive agreement, and so on. I feel that in the world that we live in today, where we are, weekly or monthly almost, entering into some kind of an international committment, and we want to see that go on, that it is too exacting a demand to have any large number of them of the seriousness of a treaty. We declare war by a majority vote, and I don't see any reason why we couldn't commit ourselves to a majority vote by both Houses.
Senator WHERRY. Then why have the two-thirds rule at the end of the session?
Senator PEPPER. That is a little different. The reason is that we have—now the House has never had anything but a majority vote for all their actions
Senator WHERRY. We ratify the treaties.
Senator PEPPER. We in the Senate have preserved this privilege of unlimited debate, and we have rather cherished it. I say now the time has come when we cannot any longer allow that power to frustrate the overwhelming will of the majority of our body.
Senator WHERRY. Thank you, Senator.
Senator HOLLAND. Mr. Chairman, the sole purpose of my suggestion was to call to the attention of the committee two facts-first,
that in the case of expulsion and also in the case of the exercise of the treaty-making power, it would be the present rule rather than the suggested rule that would have to be relied upon, because it is only under that that two-thirds would be involved, and that is the constitutional requirement in each case; and second, that it is well that that is so, because the present rule doesn't allow of delay after the adoption of the cloture, whereas the proposed rule does.
Senator WHERRY. I understand that, and I think it is very constructive.