The original documents are located in Box 9, folder “Congress - Senate Changes in Rule XXII” of the John Marsh Files at the Gerald R. Ford Presidential Library.
Copyright Notice The copyright law of the United States (Title 17, United States Code) governs the making of photocopies or other reproductions of copyrighted material. Gerald R. Ford donated to the United States of America his copyrights in all of his unpublished writings in National Archives collections. Works prepared by U.S. Government employees as part of their official duties are in the public domain. The copyrights to materials written by other individuals or organizations are presumed to remain with them. If you think any of the information displayed in the PDF is subject to a valid copyright claim, please contact the Gerald R. Ford Presidential Library. Digitized from Box 9 of The John Marsh Files at the Gerald R. Ford Presidential Library FLovr t H ""R r Prt c: PJiid~eD ev.· w,_, IC'e~~>AL.L. R. cr .3o L. v rioN T tJ A Ml#ltll> i?vLE xg lL Pito:I f'"CT IFJ> "5 c E" N;f It10 "t=- RvJ...Ii ---."iR;r FtGHr 6N 3 EN.,_ T1l' Pt... II tJ It . W~il'rl!ll HtJric.,;- .41 vs .,- t't-#E /5t=a~ GiliF/11 f/NI>EI( l~ V'-E' )( C
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• I "t: 0 \tJ ,... -..) {!. aJ 'o < z: t- I >"' d. Y1 ;;- .... l!J '<.:' IV d- 'i"" :j- <' f::f -J z: <:/. <:/:: H I ~ I \)_, ":::::. c \n ri) I I THE WHITE HOUSE WASHINGTON January 10, 1975 MEMORANDUM FOR: AAcKMARSH PHIL BUCHEN /,l FROM: DICK CHENEY v The President wants to see the paper that is being prepared on what position we might want to take with respect to changes iD: Rule 22 in the Senate regarding filibusters. We may ultimately want a meeting on that sometime on Monday, but the paper that's now being worked on in conjunction with the Vice President ought to go to the President before anything is finally locked in. ·THE WHITE HOUSE WASHINGTON January 10, 1975 MEMORANDUM FOR THE PRESIDENT THROUGH: MAX L. FRIEDERSDORF FROM: WILLIAM T. KENDALL vtf. SUBJECT: The Rule XXII Resolution SUMMARY: An attempt will be made at the opening of the 94th Congress to amend Rule XXII of the Standing Rules of the Senate. The Resolution will provide that three-fifths, rather than the current two-thirds, of those Senators present and voting may invoke cloture and limit debate on a pending matter. First, this group may attempt to get the necessary two-thirds under old Rule XXII to stop a filibuster which will surely develop. Second$ they will attempt to combine a favorable Vice Presidential ruling on · the question with a Senate vote favoring that ruling in order to get a vote on the resolution. The scenario will probably be as follows for the second option: Senator Mondale will seek recognition following the opening formalities, having submitted written notice (under Rule XL} of his intention to amend a Senate rule. He will then seek to obtain assurances that transaction of business will not prejudice his right to consider a rules change; that by operating under the rules he is not acquiescing to those rules - particularly Rule XXII; and try to obtain assurances that Senate will adjourn, rather than recess, so that a legislative day will pass. (Rule XIV) On the second legislative day, Senator Mondale will request the presiding officer to lay the resolution before the Senate during the morning hour and at the conclusion of morning hour, the resolution will be placed on th~ .. -~~~ calendar. Mondale will then ask for its immediate consideration. ' The opponents will have these options: 1. Move to table motion to proceed. Majority needed. 2. Seek to defeat motion to take up resolution. Again a majority. Page 2 3. Raise a point of order against motion to consider. 4. Filibuster the motion to consider and/ or the resolution itself. Senator Mondale can respond in two ways to option 4. He can attempt to invoke cloture under the old rules {XXII). OR, he can attempt to combine a favorable Vice Presidential ruling with a Senate vote supporting that ruling. The Vice President can rule favorably or unfavorably. If he rules favorably. Senate will proceed with cloture vote and when a majority (but less than two-thirds) votes to invoke cloture, the Vice President will rule debate ended. This ruling will be appealed by the · opponents. Mondale will move to table the appeal. If the tabling is upheld, cloture is invoked and Mondale gets a vote on his original resolution {to change Rule XXII). If the Vice President rules unfavorably, the cloture vote proceeds. When a majority (but less than two-thirds) votes for cloture, Mondale will appeal the Vice President's contention that debate is not ended. The key . here is that Mondale' s appeal is subject to unlimited debate. Mondale needs a 11 friendly'' tabling motion to end debate on the appeal and needs a favorable vote on this to end debate. The only hope for Mondale under this option is for the Vice President, on appeal, to put the question to the Senate without debate (as Humphrey did in 1969). The Vice President may decide not to express an opinion (as in the case of Johnson in 1963, Humphrey in 1967 and Agnew in 1971). He may rule that it is a constitutional question to be ruled on by the Senate rather than by him and subject to appeal by the Senate. Mondale will hope that the . Vice President will put the constitutional question to the Senate without debate - otherwise the question is subject to unlimited debate, and probable failure. bee: Vice President Rockefeller Donald Rumsfeld .J"bhn 0. Marsh, Jr. Ronald H. Nessen James Cannon JAN 9 1975 THE WHITE HOUSE WASHINGTON January 9, 1975 ADMINISTRATIVELY CONFIDENTIAL MEMORANDUM FOR: MAX FRIEDERSDORF THROUGH: WILLIAM KENDALL t"JJ:l, FROM: PATRICK E. O'DONNELL~ SUBJECT: Cloture /Filibusters As the attached papers will indicate, Senators Mondale, Pearson and others are leading a bipartisan group (Hugh Scott included) which will attempt on the first day of the 94th Congress to amend Senate Rule XXII (Cloture} to require only 3/51 s (60) instead of 2/31 s (67) to invoke cloture. An educated guess by Bill Hildenbrand is that it will not have sufficient oomph to pass. If it does, we are in deep trouble. Rocky will be presiding when the attempt is made and MUST be fully briefed on significance of the effort. To this end, Senator Carl Curtis and members of the Senate Republican Steering Committee will seek a meeting with the Vice President. Needless to say, however, this in an internal business matter of the Senate and the White House should avoid any public or obvious role. cc: Jim Cannon . / John Marsh V ADMINISTRATIVELY CONFIDENTIAL WASHINGTON, D.C. 20510 January 8, 1975 MEMORANDUM FROM: Tom Cantrell, Executive Director Senate Steering Committee SUBJECT: An Attempt to Amend Rule XXII Attached for your careful perusal is a proposal to amend Rule XXII of the Standing Rules of the Senate. Excerpting from the attached, "The resolution to be introduced •••will provide that three-fifths, rather than the current two-thirds of those Senators present and voting may invoke cloture and limit debate on a pending matter ... One of the salient points which has been overlooked by those proposing enactment of this legislation is the truly bad legislation which as missed passage BECAUSE OF this Rule. .. ·.. TC/ap 1 Attachment URGENT~0 RULE XXII RESOLUTION Background Information for Staff I. \·niAT . A large, bipartisan ·group of Senators \vill attempt, at the opening of the 94th Congress later this month, to amend Rule XXII of the Standing Rules of the Senate. The resolution to be intrcduced by these Senators \vill provide that three fifths, rather than.thc current two-thirds, of those Senators present and vot.ing may invoke clotm:e an.d l:hnit debate on a pending matter. II. l-ffiY It is impossible to accurately describe the efft\;!cts of the filibuster in the United States Senate. ~are statist~cs reveal that dozens of bills have been blocked or delayed by filibusters o But these statistics do not tell the l;vhole story. .c.l-18 r.-f= C::"t .!tt, •• ~~,-,-,.~.- 1-...,"IT~'> n1 ~ro +-h~t- did Duz ~ v- .L....I-.J.. ..LUUr:::tt-'-.~.o-.....» li~c. fl._ t..,l,.,-.n.tW.;...... - .... ;. r ~:..._ .... ~- ·. r .r;. •...... nOt "'11fllJ•n..,te,_;.._. • . n in record cloture votes. Many appropriations bills have been talked to death because of something they dj_d -- or did not include. Hany bills have been lo.st in the jam created by filibusters. Filibusters have sought and ach~eved the enact ment of legislation favored by those leading filibusters. Moreover, the threat of a filibuster has often blocked, delayed or substantially altered legislation. The time lost is impossi' to measureo The sponsors of the Rule XXII resolution believe that the t\vo-thirds rule has exacted too dear a' toll. It is ·s :Lrnply too difficult to end debate under the current rule. In the 58 years since the original cloture rule Has adopted, there hav ,.-i~ ·.: ', been 100 cl9ture votes... Only 20 have been successful. Since f',, f the most recent Senate consideration of this important matter in 1971, the filibuster has been rcpeuteclly used to block social, economic,. consumer, and reform legislation with the spo11Sorship of Senators of all political philosophies and from all sections o£ the country. Despite this fact, the supporters of the rcsolut ion nre · ~cnsitive to the impo!.·tnnt minority rights nnd to the principle of <-·xtcndcd deb~Jtc that Rule XXII is designed to protect. They -2- belie_ve that the three-fifths cloture rule which they propose would sufficiently protect these values \vhile preventing the frequent use of the filibuster to th\vart the will of the Senate. III. H01v At the opening of the 9LJ.th Congress, a resolution \vill be introduced to amend Rule XXII as described above. The sponsors of the resolution will then follow two parallril paths. First, the sponsors \vill attempt· to invoke cloture on the anticipated_ filibuster by the opponents of change in Rule XXII. They v1ill do this by attempting to secure a t'l.vo-thirds vote on cloture motions filed under the old Rules. At the same t:ime, the sponsors \:.,ill assert the constitutiona right of a !!§..iority of the Senate to make changes in the ·Rules uninhibited by provisions of the .old Rules. Vice Presidents Nixon (in 1957, 1959, and 1961) and ··Vice Presid cnt Hu.rnphrey (in 1969) have: confirmed this right. The sponsors \vill hope to combine a favorable ruling on this question by Vice President. Rockefeller with a Senate majority vote sustaining this ruling on .appeal. IV. WHO The effort to amend will· be led by Senator Mondale and Senator Pearson. They hope to have the "cosponsorship of a majority of the members of the 94th Senate. A list of the 51 cosponsors of a similar resolutioa in 1971 is attached for your infm..1na t ion. .. · · · .. -·~ ·~ Cosponsorship by a majority of the Senate membership is important (1) to \vithstand initial motions to table and (2) to show that a majority of the Senate is, in fact, asserting the constitutional right to change rules at the op~_ning of a nev1 Congress under Article I, Section 5. ·· · n <' .' .} V. HIIEN The resolution \vill be introduced on the first day of the 9l1th Congress. It is vitally jJliport~tilt that cosponsorship be detc1.1nincd by Janthu·y 9th, at the latest. If you wish further ... ..,. ...... .. ·. ,,' ..• Calendar No. li U2u CONGHESS · 1sT S1-:sswx · .. . . 1~ · 'J'JIJ~ HE~.:\'1'.1~ OF -THE ITXJT.EH ~T.\TJ~::; .llr. Cun:nr (-(u,. h imsl'l'r. )Jr. Ppw;u..~~ )Jr.. \ t.I.II'J"i', )Jr·.. \.xm:m,;ox, ~Jr. B.\ \'II~ ·. .\lr. Jh:.xT~J·:.x, )1,.. BJ:o;.~,··.llr, ~;1:\l.t,, )Jr. Bt·mne.-, )J•·.·C.\sl:. )lr. <\if.m., · )Jr·. Cu.\.X='Tt'~-.X. )r;~II.XH'K~ .llr. E.ua.1:rux, .llr. Fuxc;~ .lit·. (;J:tFFJX.'~\lr. •.. lht:J:t$, )Jr. lL\1:-r• .llr. 11.\J:TJ\t·: • .llr. lbTFJEt.u, .\lr. lfn;1u::-:~ Xfr .. Jh:)r- · I'JIJ:EY; .ll r .•J .\t'J~l'o.X, .llr.• J.wn=--~ )Jr. l~ 1::... .x wL· )I r . .lld~un:J:X, .lfr: ~k l.xT·rm:, .lit·. )1.\t:.xn•t'.X: .llr. )1.\.xl'J·'Jt:J.H, .llr. )1.\'rtJL\s, )Jr. .lloXH.\1.1-: • .llr• .llu.x·n1Y ·'~ .lh·. )loss. )It·. .lit ·:- r;. n:, .\lr. X J·:u;o.x. )!J:. P.\t'K \\'oun, )I r. PA$TOJ:t:, .lh. Pt:u., )i;·. Pa:J:n· • .lla-. Punx :\lll:r:, :'\It·. · H.\ xnuu·u, .\It·. J: 1J:I('(IJ·'J·" 1 )i r. · .; :-;.,xm:, )Jr. !'kuwJ:un:~:, .llr.·Sn,.n, .llr. !':'TJ:n:.xl'ux. )It·. S·nuxcrn,x, .lh·. T.u-·r, .\h. ·1\:xxo.-, uml .llr·: \\'u.J.l.Dls) sulllllilli•tl·tlal• folluwinl! n•solu• tion; whit-h was o~·Jcrcu to I ic o\·cr u ml~t· t lll' ru lc ( ),y (; !Iilii imous CollS<'nt) .. :. . : ·• ·.... : -JANl".\I:Y .26, IH71 . Onll•t:cd to bl• pl:tt•t•(l em the c:dcuc.lar ...... ,...... (. .. ·. " WASHitJGTON. D.C. 2.0!110 ~---,::;, 0 January 1975 Dear Colleague: When the 94th Congress convenes in a few days, we will cosponsor a Senate Resolution amending Rule XXII of the Standing Rules of the Senate •. The Resolution will provide for cloture.upon the vote of three-fifths of those Senators present and vot-ing. ,.. ~ , Since the most recent Senate consideration of this important reform in 1971,- the filibuster has been repeatedly used to block important social,. economi.c, ", and reform legislation with the sponsorship of , . Senators of all political philosophies from all sections of the countr.y. Despite this fact, we are all sensitiv~ to the important minority rights and to the principle of extended debate that Rule XXII is designed to protect. We believe that the three-fifths cloture rule which we propose would suf~iciently protec~ these values while preventing ~he frequent use of the filibuster to • thwart the will of the Senate. We sincerely hope· that you will join us ·in this effort. If you would like further information about the Resolution or would like t~ cosponsor, please contact Robert Barnett (X5641) of Senator Mondale's ,, ~ staff or Arthur Hill (X4774) of Senator Pearson's staff ·:> as soon as possible. · o· "'~· .· ~v~·· Biden, .Tr. Vance Hartke . .' 'l ' .· ":,• < •••• Hatfield' ~ . .l4t/;-. / {JXu~~~1~ Edwa':fM~ Kenn~ Warr~J ~~- Ma -. ' ... . •. ~ :I Bob Packwood ~/v-; e:: Claiborne Pell . Williams, • Ji.l•- -·:;.' Abraham A. ~ 1."-: • • JAN .:. .:t 197 5 THE WHITE HOUSE WASHINGTON January 11, 1975 MEMORANDUM FOR: JACK MARSH BILL BAROODY MAX FRIEDERSDORF RUSS ROURKE , FROM: WAYNE VALIS (\J-.j ~N~ SUBJECT: Attempts to Amend the Filibuster Rule Although I do not know how useful this is, and I realize the attack on the filibuster occurs at the beginning of every session, I am enclosing something which Tom Cantrell, Executive Director of the Senate Steering Committee sent me on the coming effort to amend the filibuster rule. I hope it is of interest. ·" ~· '" • ? • CARL T. CURTIS COMMITI'EES: NEBRAS~ AGRicut.TURE AND FORESTRY AERONAUTicAL. AND SPACE SCIENCEIJ WASHINGTON, D.C. ZO!ItO January 7, 1975 MEMORANDUM TO: Mr. Wayne Valis Executive Office Building Room 187 . Washington, D.C. 20500 FROM: Tom Cantrell, Executive Director Senate Steering Committee SUBJECT: An Attempt to Amend Rule XXII Attached for your careful perusal is a proposal to amend Rule XXII of 'the Standing Rules of the Senate. Excerpting from the attached, "The resolution to be introduced •••will provide that three fifths, rather th~n:..,the current two-thirds of those Senators present and voting may in~4k.e cloture and· limit debate on a pending matter." One of the salient points which has been overlooked by those proposing enactment of this legislation is the truly bad legislation which HAS MISSED ENACTMENT BECAUSE OF this Rule. Senator curtis is aware of this and will want to fight it. TC:jt 1 Attachment URGENT - IMMEDIATE ATTENTION PLEASE •·. .• --.. . ,-: ·. .~ .. . -. Calendar No. 1 !)2u GONGHESS . 1ST ~J-;.<;SlUN" . l.X 'l'liB HENA'r.I~ ·OF '1'111~ ll ..\lT.I~l> :-;T.\TE:; .. ·' · .J.\.:•at.\t:r 2a, W7"1 )lr. Gm:ta:u. (.f.,;· hiiuHf.•ff, lh'. Pr·:.u:~us, .:\Jr.. \ t.i.m;·~· :\II·.· .\~ut:i:~ox, ::'\1•·· Rwu, ·. ~\lr. lb:~-r:o•:.x, Jlr. HJ:tl(tli t-:;.:\1 r. HJ:.\t.r., :\i r. Bn:utl·r•, :\J r."C.\.sJ·:. :'\1 r. (~;)Jt, · I>o)IIXH"I\. • (imJ·'FJx.·:.\Ir. - - lfr. Cn.\x~Tz~• '!" • :\11·. • .:\lr. E.\m.t·:ru.x, :\11". Fux... • llr. •• · I l.~r:m~, )I r:)"l.\l:;r~ )Jr. 11.\J:TJo:, )Jr. J bTFII·:w, .\Jr. II l'C:tJJ:.. , :'\h·: J k:u- · J'JJJ:t:Y, .\lr·. ,1.\,·ri~ux, :\I i·.. J.wrr~. )Jr. 1~ r:~ x t·:nL. )Ia·. lkGun:r:.x, :\Ir~ ::\k lxn·m; lit-. )L\,;:o.;t·:-;,•x, )Jr. )1.\.x:-;t·;JJ:J.I), )la·.. U.\·nu.\s, )fr. .:\lo.xu.\l.t:~ :'\h·. )lu~Tu\· .\,)It·. :\lu~~, )J r·. )It·=-•• 11·:, .:\lr·. X J-:t.su~ •. 1\h·. P .\t:J\.WIIOI•;lir: PA!:ITom:, lll·. l't:u., )It·~ P•·:J:cY. lh. Pt:ox:\tmJ:, :\lr. 1:.\~IMll.J'Il, .\Jr. J:wJoil··•·, ~\fr. · ~.\Xnt:, )Jr. &~11wl:uu:1:, :\lr.·Snrn, :'\lr. Sn:n:x:-;ux • .:\l1·. Sl":)lUWl"liX, llr• . T.u·r, )h·. Tt:x~J:l"', mul .\It·~ WJLI.l.\.)ls) sulttJ"Jitli•ll·tl•t.• fullowinl! n•l:ioln• tiou ; whieh was ordered to 1ic o\·cr lllllll~l· tIll~ ntll' ( ,,. C uau imous Const'nt) • . . w . . .: .. .. _.: JA~l".\ta· .2G, IH71 . Ordl'l:Ctl to l.~t• pht,•t•ll .ou tltc call'mlar .· : .- ... .•• ·i ...... (. .. .·. - ~ RULE XXII RESOLUTION Background Information for Staff I. W1IAT . ·A large, bipartisan :group of Senators \vill attempt, at the opening of the 94th Congress later this month, to amend Rule XXII of the Standing Rules of the Senate. The resolution to be introduced by these Senators \-1ill provide that three fifths, ;ather than.thc current two-thirds, of those Senators present and vot:.ing m&y invoke cloture an.d l:Im:tt debate on a pending matter. II. \>1HY .· It is impossible to accurately describe the effects of ~~ the filibuster ili -the United States Senate. Bare statistics reveal that dozens· of bills have been blocked. or delayed by filibusterso But these statistics do not tell the whole story~ Dozens of filibusters h:~.ve taken place th~t did not culminate - ' in record cloture votes. Many appropriations bills have been talked to death because of something they did -- or did not include. Many bills have been lo.st in the jam created by filibusters. Filibusters have sought and ach;i.ev.ed the enact- ment of legislation favored by those leading filibusters. Moreover, the threat of a filibuster has often blocked, delayed, or substantially altered legislation. The time lost is impossible to measure. The sponsors of the Rule ~XII resolution believe that the t\v-o-thirds rule has exacted too dear a • toll. It is 'simply too difficult to end debate under the current rule. In the 58 years since the original cloture rule t-ms adopted, there have ' ',been 100 clc;>ture votes... Only 20 have been successful. Since the most recent Senate consideration of tlU.s important matter in 1971, the filibuster has been repeatedly used to block social, economic, constm1er, and reform legislation \vith the sponsorship of Scuators of all political philosophies and from all sections of the country. .. Despite this fact, the supporters of the resolution are sensitive to the impo:!.·t<.mt minority rights nnd to the principle of extended dcbutc th.1t Rule XXII is designed to protect. They .. -.- .- belie:vc that the three-fifths cloture rule which they propose would sufficiently protect these values \vhile preventing the frequent use of the filibuster to th\vart the will of the Senate. III. H01v At the opening of the 94th Congress, a resolution \vill be introduced.to amend Hule XXII as described above. The sponsors of the resolution \·lill then follow two parallel paths. Fir9t, the sponsors 'vill attempt· to invoke cloture on the anticipated_ filibuster by the opponents of change in Rule XXII. They v1ill do this by attempting to secur~ a two-thirds vote on cloture motions ~iled under the old Rules. At the same time, the sponsors will assert the constitutional right of a maio:E"ity of the Senate to make changes in the ·Rules uninhibited by proxisions of the _old Rules. Vice Presidents Nixon (in 1957, 19~.9-, and 1961) and Vice Pres:id ent Humphrey (in 1969) have ccnfirrr1eri this right. The sponsors \vill hope to combine a favorable ruling on this question by Vice President Rockefeller with a Senate majority vote sustaining this ruling on ~ppeal. IV. WHO The effort to amend will be led by Senator Mondale and Senator Pearson. They hope to have the 'cosponsorship of a majority of the members of the 94th Senate. A list of .the 51 cosponsors of a similar resolutio-.:l in 1971 is attached for your information. ·· ·· ., .... . ·~ Cosponsorship by a majority of the Senate membership is important (1) to ,.Jithsti.lnd initial motions to table and (2) to shO\.;r that a m.:1j ority of the Scn.:ttc is, in fact, asserting the constitutional right to change rules at the opening of a ne\-1 Congress under Article I, Section 5. V. HliEN The r0solution \,•ill be introduced on the first d.:.1y of the 9/lth Congress. It is vit.:ll.ly :iJnport~lllt that cosponsorship be determined by JamL"l.ry 9th, at the latest. If you wish further -3- -. ·' information or wish to cosponsor, please call Robert Barnett (X5641) of Senator Mondale's staff or Arthur Hill (X4774) of Senator Pearson's staff as soon as possible. Thank you. 1•. t"";>- ..·.;. ·. ...... ,. ... " .·. THE WHITE HOUSE WASHtN.TON 1/13/75 MR. MARSH: Mr. Buchen dropped this by. He'd like to discuss it with you this evening if he hasn't left - otherwise tomorrow is fine. He also said it hadn't gone out yet. con THE WHITE HOUSE WASHINGTON January 13, 1975 MEMORANDUM FOR THE PRESIDENT THROUGH: PHILIP BUCHEN FROM: KENNETH LAZARUS vJ-' SUBJECT: The Rule XXII Resolution I have reviewed William Kendall's memo of January 10 and submit the following: It is anticipated that Senator Mondale will introduce a resolution providing that three-fifths, rather than the current two-thirds, of those Senators present and voting may invoke cloture and thus limit debate on a pending matter. Two issues are raised by the resolution. First, should the use of the filibuster be further diminished? Although the filibuster is an anti-majoritarian concept, it is firmly rooted in Anglo-Anlerican systems of government and is consistent with the need for stability in government which is met in part by the Senate. On a more practical level, it provides a viable alternative to the veto in Presidential decision-making. Thus, I believe that it would be unwise to support any effort to reduce its utility. In this regard, it should be noted that many recent votes on cloture have been extremely close. Moreover, the current resolution is part of a continuing effort to completely eliminate the filibuster. Assuming that you will not support the Mondale resolution, the second issue is which parliamentary option would best serve your goal? This, in turn, involves the question of whether the Senate is a continuing body, the rules of which continue from one Congress to another. If the answer is affirmative, the rules on cloture can only be changed by a two-thirds vote. If the answer is negative, the rules can be changed by a simple majority. /' Since 1789, there has been only one notable exception to the genera~~''' rule that Senate rules continue from one Congress to another. In f~·:, : ~r.1 1969, then Vice President Humphrey ruled that the question was of,,,~ ~,_ "'";···· 2 Constitutional dimension and put the question to the Senate as a whole without provision for further debate. A similar ruling by Vice President Rockefeller would, of course, pave the way for adoption of the Mondale resolution since it would require a simple majority vote to pass the measure. I would recommend that the Vice President put the question to the Senate as a whole but with provision for further debate, in effect requiring a two-thirds vote for passage. This would recognize that the Rules of the Senate have continuing vitality and would likely lead to the defeat of the Mondale resolution. At the same time, however, it would minimize the role of the Vice President in the eventual outcome. ·THE WHITE HOUSE WASHINGTON January 10, 1975 lv1E!v10RANDU!v1 FOR THE PRESIDENT THROUGH: MAX L. FRIEDERSDORF .. . FROM: W:ILLIAM T. KEI\TDALL \/\J~ 1- SUBJECT: · The Rule XXII Resolution· ! SUMMARY: An attempt wiil be made at the opening of the 94th Congress -.I - I to amend Rule XXII of the Standing Rules of the Senate. The Resolution· . ! will provide that three-fifths~ rather than the current two-thirds~ o! those Senators present and voting may invoke cloture and limit debate on a pending matter. First, this group may attempt to get the necessary two-thirds under. old Rule XXII to stop a filibuster which will surely develop. · Second,. they will attempt to combine a favorable Vice Pres~dential ruling on the question with a Senate vote favoring that ruling in order to get a vote on the resolution. The scenario will probably be as follows for the second option: Senator Mondale will seek recognition following the opening formalitiesJ'· having submitted written notice (under Rule XL) of ~s intention to amend I a Senate rule. He will then seek to obtain assurances that transaction of ! business will not prejudice his right to consider a rules change; that by .. operating under the rules he is not acquiescing to those rules - particularly Rule XXII; and try to obtain assurances that Senate will adjourn,. rather than recess, so that a legislative day will pass. (Rule XIV) On the second legislative day, Senator Mondale·will request the presiding officer to lay the resolution before the Senate during the morning hour and at the conclusion of morning hour, the resolution will be placed on the. calendar. Mondale will then ask for its immediate consideration. The opponents will have these options: 1. ·:t-.1ove to table motion to proceed. Majority needed. 2. Seek to defeat motion to take up resolution.. Again a majority. 3. Raise a point of order against motion to consider. 4. FilibusteT :motion to consider and/ or the resolution-itself. Senator Mondale can respo!ld in two ways to option 4. He can attempt to invoke cloture under the old rules {X2:..'1I). OR, he can attempt to combine a favorab~e. Vice Presidential ruling with a Senate vote supporting that ruling. The Vice President can rule favorably or unfavorably. If he :rules favorably, Senate will proceed with cloture vote and when a majority {but: less than two-thirds) votes to invoke cloture, the Vice President will rUle debate ended. This ruling will be appealed by the . opponents. Mondale will move to table the appeal. If the tabling is upheld, ·cloture is invoked and Mondale gets a vote on his· original resolution {to ·change Rule XXTI). If the Vice President rules unfavorably, the cloture vote proceeds. When a majority (but less than two-thirds} votes for cloture .. Mondale . will appeal the Vice President's contention that debate is not ended. The key . here is that Mondale's appeal is subject to unlimited debate. Mondale needs · ·a 11frlendly" tabling motion to end debate on the appeal and needs a favorable . vote on this to end debate.. The only hope for Mondale under this option is for the Vice Pr.esident.l> on appeal .. to put the question to the Senate without debate {as Humphrey did in 1969). . · The Vice President may decide not to express an opinion (as in the case of Johnson in 1963, Humphrey in 1967 and Agnew in 1971). He may rule that it is a constitutional question to be ruled on by the Senate rather than by hlrn and subject to appeal by the Senate. Mondale will hope that the . · Vice President will put the. constitutional question to the. Senate without: debate - otherwise the question is subject: to unlimited debate,. and probable failure • . bee: Vice President Rockefeller Donald R umsfeld John. 0. Marsh, Jr. Ronald H. 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F/tll-5 - 1 r- no J; GJ!J/J-1'11"- lfe.s · 'IS Alr1t'4 De j) {j J:.- G j N (;. ) 2) t.rl51}7-e. c (J IJ .,.., tV v t! ..r rr ~;; c:"- "' 11;tV Cb;1 ~" s 11;1 · 1m I'll !> t/1 irf' vtJ rG , 7} /:: t: ~/~;~r1 \. ~~/ tz;.',c(/ I j l) \Vashington Post \ '. I Sunday, January 26, 1975 / / Rowland Evans and Robert Novak ~u x.d_oi- 9ain ,;7cj 11 7 ') Right-W Ingcl;~~;_~.~~-t... li:(: tel\_; A TotJgh Warning From the ~ {~/y;t The White House has just been llfr. :md low-Income families watching handed this tough warning· from the "They put Ford on notice that, having their home-heating bills rise mclnth by Republican Party's right wing: Presi month. the strong consensus of presi dential advisers was that retreat under Ford will h€' for dent held responsible nominated 1Ur. Rockefeller against the wishes the threat of Ullman's virtual ultima anv leftward drift on the part of Vice tum would be far worse. Pr~sident Nelson Rockefeller. of the right, he is now responsible for Specifically, the warning concerns Indeed, the President's great P\lblic the biennial Senate fight on the anti relations effort, now in full gear, to Rockefeller's actions." portray himself as a leader who dares filibuster rule, Rule XXII, which may to make tough and unpopular deci· require a parliamentary decision __by sions to start the nation moving at last Rockefeller as presiding officer of the out of the energy crisis would be dam· Senate. Clarke Reed, Mississippt state of candidacy and that Rockefeller and With Mr. Ford himself presiding, aged, perhaps fatally, if he buckled un chairman and a nationally important Ronald Reagan will battle it out. two option papers were examinerl der to the first challenge from the conservative leader, put it bluntly to Despite Reed's warning, there ls no and discarded-with the majority, in Democrats. White House Chief of Staff Donald sign of the President giving any stage cluding Secretary of State Henry Kis Rumsfeld last week: we will hold the singer, strongly arc:uing against any Accordingly, the two fall-back. op directions at all to his Vice President tions prepared by his aides were President responsible for whatever on how to handle the :rules fight. The ·retreat. · Rockefeller does; we will blame the rejected: a flat, unconditional 30-day White House says the decision is Rock But there was debate, and it c~n postponement in the first-stage $1 a President if Rockefeller's ruling helps efeller's. Indeed, seeking counsel from anti fi!ibuster forces. tered on this politically dangerous as barrel increase, from F~b. 1 to March the White House last week, Rockefel pect of the President's energy pro .Although passage of civil rights leg 1; or a 30-day delay with "something in ler heard sharply divided opinions. At gram: where will the politic~! blame. return from Congress"-but no one islation has taken much of the old ra this writing, he has not discussed the be placed if taxpayers· are forced to cial sting from the Senate Rule XXII could figure out what that ruling with the President himself. buy high-cost fuel resulting from the "something" should be. fight conservatives want to retain the Rockefeller would clearly prefer to import duty ($1 a barrel starting Feb. 1, filib~ster as a weapon against the lib· finesse the question by saying it is a $2 on March 1, $3 on April 1) but have When the President first decided on era! majority. But Reed's warning to matter for the Senate itself to decide. to wait many months for the proposed the import levy, less attention wa& the White House far transcends filibus· But that may be impractical, leading 12 per cent income tax rebate? given to the possibility of a congres ters. · to the possibility of a ruling that sional veto effort than to the fact-or It is intended to put Mr. Ford on· no would cause Mr. Ford new trouble That delay could be forced by hope-that the import levy would tice that, having nominated Rockefel· with his party's conservatives. lengthy congressional debate over the force Congress quickly to enact the ler against the wishes of the right, he • form of a tax cut, during which the rest of the President's energy package, is now responsible for Rockefeller's ac Shock inside the White House over overwhelmingly Democratic Congress all parts of which are inextricably con· tions. The toughness of the warning re· Rep. AI Ullman's weighty threat to will also be trying to repeal the oil im· nected. The sudden White House meet· fleets a growing feeling in the Republi block President Ford's stiff levy on im· port levy. ing on Wednesday, however, shows can Party, particularly among its con· ported oil resulted in a.n .unannounced Although recognizing the risk that that the political dangers are now servatives, that Mr. Ford will not run top-level meeting Wednesday morning Mr. Ford, not~ the Democrats' in Con· clearly perceived.. in 1976 despite his early announcement to consider possible delays. gress, could weu·.get blamed by mlddlEi· <0 1975. Field lnte!'l>rl.. ,, Ine. THE WHITE HOUSE WASHINGTON February 27, 1975 MEMORANDUM FOR: THE PRESIDENT FROM: JACK MARSH Background: You are aware of the difficult situation which has arisen in the Senate over Rule 22. I should emphasize that there are some deep and bitter divisions in the Conservative ranks with old feuds coming to the surface involving the Vice President. The principle charges are that he has tilted to the proponents of changing Rule 22 in two ways: ( 1) Parliamentary rulings. (2) Recognition on the Floor. (This has caused much personal anger.) On behalf of the Vice President, he and key advisors point out that he has followed Senate rules and has tried to be even-handed in recognition practices. In your meeting today with Senator Tower, it might be helpful to keep in mind: (1) As Chairman of the Policy Committee, he holds a major leader ship post. (2) He has retained his objectivity insofar as the Vice President is concerned on Rule 22. (3) He has sought to be a peace-maker rather than a partisan. ( 4) He has defended the Vice President to other Members of the Senate by stating the situation that has occurred "is not sUI:·> 11 Rocky's fault. •• -2- (5) Although not a member of the Wednesday Group, he has some close associations there and enjoys their respect. On the other hand, while he is philosophically attuned on major issues to the Steering Group, he is not a member of their Group either. (6) There is a desire to cool off the situation and seek a comp acceptable to Liberals and Conservatives. This move is sponsored by Mansfield and Tower. (7) Because of his parliamentary skill, his broad background as well as respect both among Democrats and Republicans, Liberals and Conservatives, Senator Tower is probably our best chance of achieving a resolution on this matter. In discussions with him, I would suggest emphasis on: (1) Your role in this matter and the limitations placed upon you as a member of the Executive Branch. (2) The efforts you have made to communicate your views on the subject to the extent you appropriately could. (3) The need to divorce Rule 22 from the other major legislative considerations before the Senate, i.e., energy bill; tax bill, etc. (4) To the extent you can your willingness to throw your support behind a bi-partisan, Tower-sponsored compromise. (5} Urge a resolution of the matter in such a way that we do as little damage as possible to: (a) solid supporters in the Senate from both parties you need on your programs; (b) the future effectiveness of the Vice President. In summary you can expect him to ask you to convey your thoughts on this Rule 22 matter to the Vice President.