Senator KNOWLAND. I might say, along that line, the amendment that I put in requires a majority of the entire membership of the Senate, so it would take 49 votes to invoke cloture.

Senator BYRD. I understand that. That is somewhat better, or a little better than a majority of those voting.

Senator IVES. It is about twice as good as 25.

Senator BYRD. It is, assuming that there is a bare majority. It is not as good as the two-thirds plan that is now in operation..

Senator WHERRY. Do you have a record of the votes that are taken on file, with you; is that a part of your statement?

Senator BYRD. Yes. I will come to that.

Now, Mr. Chairman, I want to discuss very briefly what has happened since rule 22 was adopted 30 years ago, and which has not been changed, not one line or word in that rule has been changed. I think I can say without successful contradiction that during the period of the last 30 years America has had the greatest problems in all of her history, with the possible exception of the War Between the States, and that issues have been presented that have created the bitterest controversies that this Nation has ever known. During that period we have fought and won two great wars. We have prepared for two great wars. We have met the postwar conditions of two great wars. In addition to that, we went through the greatest financial depression this country has ever known, and adopted after that new principles of government that raised bitter controversy and bitter division among the people of the country. And if there was any time in our history when the right of debate in the United States Senate would have been abused, in my judgment it would have been abused in this period that we are in now and have passed through in the last 30 years.

I just want to take a few minutes, Mr. Chairman and members of the committee

Senator WHERRY. Take all the time you want, Senator.

Senator BYRD. To say what has occurred with respect to a cloture or the effort to impose cloture in the Senate in the past 30 years.

In that period there have been 20 petitions filed for cloture; and it is very simple to file them, to file a petition for cloture, because it only requires the signature of 16 Senators. On any controversial measure there will certainly be 16 Senators on one side or the other. In 18 of those 30 years, no petition was filed, not a single petition within those 18 years-1921, 1923, 1924, 1925, 1928, 1929, 1930, 1931, 1932, 1934, 1935, 1936, 1937, 1939, 1940, 1941, 1943, and 1945. In those 18 years of the 30, there was no effort to impose cloture; and I take it by that that there was no abuse on the part of the Members of the Senate, during those years, of the privilege given of freedom of debate under rule 22.

Now cloture was imposed in four instances. First was the Treaty of Versailles, the treaty of peace with Germany, on November 15, 1919. That was imposed by a vote of 78 to 16, making a total of 94 Senators voting.

The second time it was imposed was in relation to a bill granting favorable advice and consent of the Senate to the adhesion on the part of the United States to the Protocol of December 16, 1920, with

ser

vations, for the World Court. That was on January 25, 1926, with 68 yeas and 26 nays, or a total of 94 voting.

The third time was on February 15, 1927, in relation to a bill to further amend the national banking laws and the Federal Reserve Act, and for other purposes. There were 65 yeas and 18 nays, or a total of 83 voting.

The fourth time was in relation to a bill to create a Bureau of Customs and a Bureau of Prohibition in the Department of the Treasury. That was on February 28, 1927, with 55 yeas and 27 nays, or a total of 82 voting.

Now those are the only four instances in the history of the United States Senate, unless it occurred in the first 17 years when they had the "previous question" rule, the only times that they have prohibited debate in the United States Senate.

It is for that reason, Mr. Chairman and members of the committee, that I want to appeal to you to give the most earnest consideration to any drastic change. There were only four times in the history of the United States Senate when the mouths of the Senators have been closed by cloture petition. And I want to point out that at least three of these bills must have been of vital importance. The last one was a question of creating a Bureau of Prohibition. That might have been important to some, and not important to others. But nevertheless, it was so regarded at that time, I imagine. That emphasizes the fact that when the issue is important enough, if a majority of the people want to have cloture in the United States Senate, a majority of the people of this country want it, that the two-thirds majority will always be forthcoming on very important legislation.

Now here are the bills on which cloture failed. On February 2, 1921, relating to a bill imposing temporary duties upon certain agricultural products to meet present emergencies, to provide revenue, and other purposes; there were 36 yeas and 35 nays, which is 71 voting.

On July 7, 1922, a cloture petition failed on a bill to provide revenue, to regulate commerce with foreign countries, to encourage the industries of the United States, and for other purposes, commonly known as the Fordney-McCumber Tariff Act. The yeas were 45 and the nays 35, which made 80 voting.

On June 1, 1926, a bill for the purpose of more effectively meeting the obligations of the existing migratory bird treaty with Great Britain by the establishment of migratory bird refuges, et cetera. There were 46 yeas and 33 nays, which is 79 voting.

On February 26, 1927, a bill making eligible for retirement, under certain conditions, officers and former officers of the Army of the United States, et cetera. The yeas were 51 and the nays were 36, which make 87.

The next time was on February 26, 1927, a bill to provide for the protection and development of the lower Colorado River Basin, the Boulder Dam bill. There were 32 yeas and 59 nays, which is 91 voting.

The next one was on February 28, 1927, a bill authorizing the Secretary of the Treasury to acquire certain lands within the District of

98126-47- -6

Columbia to be used as sites for public buildings. The yeas were 52, and the nays 31, which is 83 voting.

The next was on January 19, 1933, a bill to provide for the safer and more effective use of the assets of Federal Reserve banks and of national banking associations, and so forth. The yeas were 58 and the nays 30, or 88 voting.

The next was January 27, 1938, a bill to assure to persons within the jurisdiction of every State the equal protection of the laws, and to punish the crime of lynching, known as the antilynching bill. The yeas were 37 and the nays 51, or a total of 88 voting.

The next one was on February 16, 1938, a bill to assure to persons within the jurisdiction of every State the equal protection of the laws, and to punish the crime of lynching, the same bill. The second cloture vote was taken 3 weeks later. Let me again remind the committee that under rule 22 you can have a succession of cloture votes, indefinitely. That is, assuming that the advocates of cloture believe there is any opportunity to have any changes, or if the Members of the Senate don't happen to be there at that time, they can continue to have cloture votes indefinitely on the same bill. That does not mean that the bill is taken down if a cloture vote is defeated. The bill remains on the calendar where it is, and another cloture vote can be filed, and another and another, and there is no limitation whatever to it. So if this is a great national issue whereby the people of the country are taking an interest, a continued filing of cloture petitions would be natural, to gain votes for cloture as time went on, if it was thought wise to do it.

Senator WHERRY. What was the number voting on that last bill? Senator BYRD. There were 42 yeas and 46 nays, a total of 88 voting. In other words, the second cloture vote resulted in exactly the same number voting-that is a strange thing-3 weeks apart, and the advocates of cloture gained five votes on the second vote, with the same total voting. I never knew that to happen before-to have the same vote on the bill 3 weeks apart, the same total. We could have had another cloture vote on that.

The next cloture vote was November 23, 1942-a bill to amend an act to prevent pernicious political activities, known as the antipolltax bill. The yeas were 37 and the nays 41, or 78 voting.

That same bill came up on May 15, 1944, about 18 months later, and it has a different title. The first was "To amend an act to prevent pernicious political activities"; the second was "Making unlawful the requirement for the payment of a poll tax as a prerequisite to voting in a primary or other election of national officers." That was defeated by 36 yeas and 44 nays-80 votes.

The next one is February 9, 1946-a bill to prohibit discrimination in employment because of race, creed, color, national origin, or ancestry, known as the fair employment practice bill. The yeas were 48 and the nays 36, or a total of 84 voting.

The next one was May 7, 1946-a bill to implement further the purposes of the Bretton Woods Agreements Act by authorizing the Secretary of the Treasury to carry out an agreement with the United Kingdom, and for other purposes. That is the loan to Great Britain.

That was voted on May 7, 1946. It was a tie vote, 41 yeas and 41 nays, or 82 voting.

The next was on May 25, 1946-a bill to provide for the appointment of fact-finding boards to investigate labor disputes seriously affecting the national public interest, and for other purposes. That only received 3 votes, although 16 Senators had to sign the petition. for cloture, and 77 votes against it, which made a total of 80.

The next was July 31, 1946, which was the third vote on the antipoll-tax bill-a bill making unlawful the requirement for the payment of a poll tax as a prerequisite to voting. That was defeated by a vote of 39 yeas and 33 nays, or a total of 72 voting.

That is the history of this rule XXII that we are trying to change, in a period of 30 years of the most tumultuous times this Nation has ever known, the most difficult years, which was evidence that the power of free speech was not abused in the United States Senate to any great extent, because for 18 years not a cloture petition was filed.

Senator KNOWLAND. If I might interpose, does it not also indicate that of that large number of cloture petitions which were presented to the Senate, there are only, I think, 3, or not more than 4, cases where there were more than 49 votes, and therefore the same protection which you feel is necessary to prevent the closing of debate too soon, that same protection would have existed under the so-called KnowlandSaltonstall-Ferguson amendment as exists under your present rule XXII? In other words, of that large number of cases, there are only three or four where they got more than the full majority of the Senate membership.

Senator BYRD. The Senator is speaking of those that were defeated?
Senator KNOWLAND. Yes, but did get more than 49 votes.
Senator BYRD. I think it is only three.

Senator IVES. Out of how many?

Senator BYRD. Sixteen. There were 3 that received more than 49 votes.

Senator IVES. Of course, another thing that doesn't show up in that tabulation is the vast amount of time that was lost in the debate while this was going on prior to these cloture attempts; whereas if they had a majority decision one way or the other, the cloture attempt might have been made earlier.

Senator BYRD. Senator, I can't agree with you that the time in debating is lost.

Senator IVES. When I say time lost, I don't mean that it was lost. so far as the discussion of the immediate subject was concerned, but it did preclude any opportunity for the discussion or taking up of anything else in the interim; did it not?

Senator BYRD. It did not preclude it if the proponents of the bill were willing to set the bill aside, because those that were charged with filibustering wanted the bill set aside. It would only preclude it providing that the advocates of the bill insisted upon its keeping its position on the calendar.

Senator IVES. You can't blame them for wanting their bill to be considered.

Senator BYRD. I understand that, but you go then to the question of the freedom of debate in the Senate, and whether this debate is advantageous or not. I think it is, and I speak as one who debates very little and who is naturally restless about a delay in procedure. I think that I have seen many very bad bills killed by a free debate in the Senate that would otherwise have been passed, if we hadn't had such a debate. I think one is the FEPC Act. Senator Millikin made one of the greatest speeches ever made in the United States Senate after that debate had gone on for about 10 days.

Senator HOLLAND. Senator Byrd, I think I noted when you were reading this list of cases where efforts to invoke the cloture were unsuccessful, that in at least two of those matters, though the debate was not closed, the bills were finally passed.

Senator BYRD. I think in a number of these cases where the debate was not closed that the bills were passed, but perhaps in some slightly modified form. I endeavored to get that information before I came here today, but could not. Take, for instance, the loan to Great Britain. That was one instance.

Senator HOLLAND. And Bretton Woods.
Senator BYRD. Yes.

Senator HOLLAND. The Boulder Dam.

Senator BYRD. That is right.

Senator HOLLAND. The point I am making is that though the filibuster was successful for a time, it either wasn't aimed at the total defeat of the bill or didn't accomplish that.

Senator BYRD. It may have been aimed at an amendment.

Senator CONNALLY. Senator, may I interrupt? In connection with what the Senator asked you about the wasted time on the debate, do you recall the instance in the Senate when Senator Norris, during one of these filibusters, started out for the bill, and before it was over he got up and made a speech against cloture and against the bill? Senator BYRD. I recall that distinctly.

Senator CONNALLY. He had been converted during the course of the debate.

Senator BYRD. There are some here that we know about. The Fordney-McCumber bill was passed after the cloture petition failed on that.

With your permission, Mr. Chairman, I would like to submit a statement for the record later on, showing what bills passed▬▬

Senator WHERRY. I wish you would. Will you offer those exhibits for the record?

Senator BYRD. Yes.

(The data referred to is as follows:)