Q:ongrcssional Record PROCEEDINGS AND DEBATES OF THE 85th CONGRESS, FIRST SESSION of America

Help us not to betray the Founding Fath­ printed in the RECORD and ordered to be SENATE ers by allowing a passion for security, a placed on file. morbid fear of change, or of cringing The certificates of election ordered to THURSDAY, JANUARY 3, 1957 timidity at the threats of dictators, in be printed in the RECORD and placed on The 3d of January being the day so stormy an era, to crush out the spirit file are as follows: prescribed by the Constitution of the which launched this dear country of our To the PRESIDENT OF THE SENATE OF THE United States for the annual meeting of hopes and prayers. And, above all and UNITED STATES: Congress, the 1st session of the 85th in all, undergird our faith with the con­ This is to certify that on the 6th day of No­ quering assurance that-- vember, 1956, was duly Congress commenced this day. chosen by the qualified electors of the State The Senate assembled in its Chamber Under the shadow of Thy throne of a Senator from said State to at the Capitol. Still may we dwell secure. represent said State in the Senate of the RICHARD M. NIXON, . of , Sufficient is Thine arm alone, United States for the unexpired term of the Vice President of the United States, And our defense is sure. late Senator Harley M. Kilgore ending the 3d called the Senate to order at 12 o'clock day of January, 1959. meridian. We ask it in the dear Redeemer's Witness: His excellency Gov. William C. name. Amen. Marland, and our seal hereto affixed at The Chaplain, Rev. Frederick Brown Charleston, W. Va., this 7th day of December, Harris, D. D., of the city of Washington, in the year of our Lord, 1956. offered the following prayer: By the Governor: RESIGNATION FROM THE SENATE WILLIAM C. MARLAND, Our Father God, lifting our hearts to The VICE PRESIDENT. The Chair Governor. Thee for this hallowed moment at this lays before the Senate a letter from the [SEAL] D. PITT O'BRIEN' altar of prayer our fathers reared, we junior Senator from [Mr. DANIEL] Secretary of State. come reverently thanking Thee for new enclosing a copy of a letter to the Gov­ years and for new days, for new thoughts ernor of Texas, tendering his resigna­ COMMONWEALTH OF KENTUCKY, of Thee and for new hopes for a re­ . EXECUTIVE CHAMBER, tion as a Senator, effective as of January Frankfort, November 26, 1956. deemed and cleansed earth. 15, 1957. Without objection, the letter To the PRESIDENT OF THE SENATE OF THE Facing the tangled tragedy in which will be printed in the RECORD and placed UNITED STATES: all human relationships are caught, we on file. This is to certify that on the 6th day of beseech Thee, empower Thy servants in The letter is ordered to be printed in November, 1956, the Honorable JOHN SHER­ this forum of freedom, upon which are the RECORD and placed on file, as fallows: MAN COOPER was duly chosen by the qualified the eyes of a fear-haunted world, that electors of the Commonwealth of Kentucky a rising above all that is base and small , Senator from said Commonwealth to repre­ Washington, D. C., S(}ptember 26, 1956. sent said Commonwealth in the Senate of they may work together in glad and Hon. , the United States for the unexpired term of eager harmony, deeper than any divi­ Governor of Texas, 4 years. • sion, for the honor, safety, and welfare Austin, Tex. Witness: His excellency our Gov. Albert of our Nation and of the peoples of this DEAR GOVERNOR: Acting under the pro­ !Benjamin Chandler, and our seal hereto stricken earth who will unite in mutual visions of section 4 of article 4.09 of the affixed at Frankfort, Ky., this 26th day of good will determined to open the gates Texas Election Code, I hereby resign the November, in the year of our Lord, 1956. of a new life for all mankind. office of United States Senator effective Janu­ ALBERT B. CHANDLER, On this significant day of beginnings, ary 15, 1957, or at such earlier date as my Governor. successor has been elected and qualified. [SEAL] THELMA L. STOVALL, like the sound of a great amen may there Secretary of State. ascend from the Members of this body From this date forward I shall not draw any salary, but I shall continue my services as each stands on a pedestal of privilege in completing pending matters in my Sen­ and power the solemn petition "So help ate committees and shall be available in the SENATOR FROM SOUTH CAROLINA me God." Save those who here serve event of a special session, thereby assuring The VICE PRESIDENT. With ref er­ the Nation's cause from all compromise that Texas has the full representation of ence to the election of a Senator from which crucifies principle, from all shoddy two United States Senators while my suc­ the State of South Carolina for the un­ workmanship which betrays the possible cessor is being elected. expired term ending January 3, 1961, at best, and from cowardly expediency Although the date of the election, within noon, the Chair lays before the Senate which is treason to the highest integrity. the time limits specified in section 1 of a letter of resignation from the Senate, Above all sectional and party shibboleths article 4.09, ls a matter within your discre­ tion, please permit me to express the hope addressed to the Governor of South Caro­ and interests, may there be lifted at the that it will be held in time for my successor lina by Thomas A. Wofford; a commu­ very beginning of this session the fervent to take office not later than January 3, the nication from the Governor of said State, prayer which makes us one--"God bless first day of the next Congress. enclosing a certificate, dated November America." Sincerely yours, 7, 1956, purporting to appoint STROM Desiring nothing for ourselves that we PRICE DANIEL. THURMOND, "effective as of the effective do not desire for all men, help us to be date of his acceptance, a Senator from good stewards of Thy bounty, to practice said State to succeed Thomas A. Wofford, a beneficent cooperation with depressed CREDENTIALS resigned, until the vacancy therein is areas everywhere, to be beacons of free­ The VICE PRESIDENT. The Chair filled as provided by law"; and a certifi­ dom, and to proclaim and protect the lays before the Senate the credentials of cate, signed by the Governor and secre­ dignity of peoples and individuals, re­ CHAPMAN REVERCOMB and JOHN SHERMAN tary of state, dated November 27, 1956, membering as we come to the first session COOPER, elected Senators on November 6, of the election on November 6, 1956, of of the 85th Congress that we are the spir­ 1956, from the States of West Virginia as a Senator from said ·itual heirs of those who at the first ses­ and Kentucky, respectively, for unex­ State "for the term of 4 years, begin­ sion of the first Congress stirred the pired terms. They are regular in form, ning on the 3d day of January, 1957." world with a gospel of startling change. and, without objection, they will be The clerk will read the documents. CIII--1 3 4 CONGRESSIONAL RECORD - SENATE January 3 The letter, communication, and cer­ Senate, I should like to make a brief February 13, 1935, the pertinent part of tificate of election were read by the legis­ statement before action is taken. which is·as follows: lative clerk, Edward E. Mansur, Jr., as The VICE PRESIDEN'l\ The resolu­ SEC. 36. Salaries of Senators. follows: tion will be read. Provided, That when Senators have been UNITED STATES SENATE, The legislative clerk read the resolu­ elected during a sine die adjournment of the COMMITTEE ON INTERSTATE tion

THE STATE OF NEW HAMPSHIRE, CERTIFICATE OF ELEcTION To the- PRESIDENT OF THE SENATE OF THE EXECUTIVE DEPARTMENT. UNITED STATES OF AMERICA, UNITED STATES: To the PRESIDENT OF THE SENATE OF THE State of Arizona, ss: This is to certify that on the 6th day. of UNITED STATES; I, Wesley Bolin, Secretary of· State, State November 1956 JACOB K. JAVITS was duly This is to certify that on the 6th day of of Arizona, do hereby certify that, at a gen­ chosen by the qualified electors of the State November 1956 NORRIS COTTON was duly eral election held in said State of Arizona. of a Senator from said State to chosen by the qualified electors of the State on the 6th day of November, A. D., 1956, CARL represent said State in the Senate of the of New Hampshire a Senator from said State HAYDEN was duly elected to the office of United States for the term of 6 years begin­ to represent said State in the Senate of the United States Senator in and for said State nin~ on the 3d day of January 1957. United States for the term of 6 years be­ of Arizona, as appears by the official State Witness:, His Excellency, our Governor, gin n ing on the 3d day of January 1957.' • canvass. or certifications on file in my office. Averell Harriman, and our seal hereto affixed Witness:' His Excellency our Governor, In witness whereof, I have hereunto set at Albany, this 10th day of December, in the Lane Dwinell, and our seal hereto affixed my hand and affixed the great seal of the year of our Lord 1956. at Concord, this 23d day of November in the State of Arizona. Done 'at- Phoenix the By the Governor: year of our Lord 1956. capital, this 28th day of November A D AVERELL HARRIMAN, LANE DWINELL, 1956. ' . • Governor. Governor. (SEAL] WESLEY BOLIN, Attest ed by: By the Governor, with advice of the Secretary of State. (SEAL] CARMINE G. DE SAPIO, council. Secretary of State. (SEAL] ENOCH D. FULLER, Secretary of State. CERTIFICATE OF ELECTION STATE OF SOUTH CAROLINA . EXECUTIVE DEPART~ENT. EXECUTIVE OFFICE, To the PRESIDENT OF THE SENATE OF THE STATE OF . STATE OF MISSOURI, UNITED STATES; To the PRESIDENT OF THE SENATE OF THE Jefferson Ci ty. This ls to certify that on the 6th day of UNITED STATES; To Hon. FELTON M. JOHNSTON, November 1956 OLIN D. JOHNSTON was duly Secretary, United States Senate chosen by the qualified electors of the State This is to certify that on the 6th day of Washington, D. C. • November 1956 EVERETT McKINLEY DIRKSEN of South Carolina a Senator from ·said State was duly chosen by the qualified electors of SIR: I, Phil M. Donnelly; Governor of the to represent said State in the Senate of the the State of Illinois, a Senator from said State of Missouri, hereby certify that at a United States for the term of 6 years begin­ State, to represent said State in the Senate general election held in the State of ning on the 3d day of January 1957. of the United States for the term of 6 years, Missouri on the 6th day of NoveJnber, 1956, Witness: His E.xcellency, our Governor, beginning on the 3d day of January 1957. as provided by law, the following-named George Bell Timmerman, Jr., and our seal person was elected to the office named as hereto affixed at Columbia, this 27th day of Witness: His Excellency, our Governor, shown by the returns of the election ce'rti­ William G. Stratton, and our seal hereto November, in the year of our Lord 1956. fied to me by Hon: Walter H. Toberman By the Governor: affixed at Springfield this 27th day of No­ Secretary of State of the State of Missow·r: ' vember, in the year of our Lord 1956. GEORGE BELL TIMMERMAN, Jr., Senator in Congress·: THOMAS c. HENNINGS, Governor. By the Governor: Jr., 220 North Kingshlghway, St. Louis, Mo. WILLIAM G. STRATTON, [SEAL] 0. FRANK THORNTON, In witness whereof, I hereunto subscribe Secretary of State. Governor. my name and cause the great seal of the [SEAL] CHARLES F. CARPENTIER, State of Missouri to be affixed at the city of Secretary of State. , ExECUTIVE DEPARTl\ll:NT, Jefferson, State of Missouri, this 21st day of STATE OF CALIFORNIA. December, A. D., 1956. To the PRESIDENT OF THE SENATE OF THE PHIL M. DONNELLY, UNITED STATES: STATE OF NORTH CAROLINA, Governor. GOVERNOR'S OFFICE, This is to certify that on the 6th day of [SEAL] WALTER H. TOBERMAN, November 1956, THOMAS H. KUCHEL was duly Ralei gh, December 4, 1956. Attest: chosen by the qualified electors of the State To the PRESIDENT OF THE SENATE OF THE Secretary of State. · of California a Senator from said State to UNITED STATES: represent said State in the Senate of the This ls to certify that on the 6th day of STATE OF IOWA, U:nited States for the term of 6 years, be­ November, 1956, SAM J. ERVIN, JR., was duly ginning on the 3d day of January 1957. chosen by the qualified electors of the State EXECUTIVE DEPARTMENT. To the PRESIDENT OF THE SENATE OF THE Witness: His Excellency our Governor of North Carolina, a Senator from said State Goodwin J. Knight, .and our seal hereto af­ to represent said State in the Senate of the UNITED STATES; This is to certify that on the 6th day of fixed at Sacramento, Calif., this 14th day of United States for the term of 6 years, begin­ December, in the year of our Lord 1956. ning on the 3d day of January, 1957. November 1956, BOURKE B. HICKENLOOPER was By the Governor: Witness: His Excellency our Governor duly chosen by the qualified electors of the GOODWIN J. KNIGHT, State of Iowa a Senator. from said State to Luther H. Hodges, and our seal hereto affixed Governor. · at the capitol in the city of Raleigh, this represent said State in the Senate of the United States for the term of 6 years begin­ Attest: 4th day of December in the year of our Lord FRANK M. JORDAN, ning on the 3d day of January 1957_. (SEAL] 1956 and in the 181st year of our American Secretary of State. independence. Witness: His Excellency our Governor, Leo By the Governor: A. Hoegh, and our seal hereto affixed at Des THE STATE OF OHIO. LUTHER H. HODGES, Moines, Iowa, this 14th day of December in the year of our Lord 1956. · ' CERTIFICATE OF ELECTION, UNITED STATES Governor. SENATOR [SEAL] THAD EURE, By the Governor: Secretary of State. LEo A. HOEGH, Governor. To the PRESIDENT OF . THE SENATE OF THE (SEAL) MELVIN D. SYNHORST, UNITED STATES: . Secretary of State. This is to certify that on the 6th day of STATE OF. ARKANSAS, November 1956, F&ANK J. LAUSCHE was duly DEPARTMENT OF STATE, chosen by the qualified electors of the State Little Rock. STATE OF , of Ohio a Senator from said State to repre­ GOVERNOR'S OFFICE, sent said State in the Senate of the· United To the PRESIDENT OF THE SENATE OF l'llE Montgomery, November 26, 1956 . . States for the term of 6 years, beginning on UNITED STATES; To the PRESmENT OF THE SENATE OF THE the 3d day of January 1957. This is to certify that on the 6th day of UNITED STATES: Witness: His Excellency our Governor November, 1956, J. W. FULBRIGHT was duly This is to certify that on the 6th day of Frank J. Lausche, and our seal hereto affixed chosen by the qualified electors of the State November 1956 LISTER HILL was duly chosen at Columbus, Ohio, this 27th day of Novem­ of Arkansas a Senator from said State to rep­ by the qualified electors of the State of Ala­ ber, in the year of our Lord 1956. resent said State in the Senate of the United bama as a Senator from said State to repre­ By the Governor: States for the term of 6 years, beginning on sent said State in the Senate of the United FRANK J . LAUSCHE, . the 3d day of January, 1957. States for the term of 6. years beginning on Governor. Witness: His Excellency our Governor the 3d day of January 1957. (SEAL] TED w. BROWN, Orval E. Faubus, and our seal hereto affixed Witness: His Excellency, our Governor, Secretary of State. at Little Rock, this 23d day of November, James E. Folsom, apd our seal hereto affixed in the year of our Lord 1956. . at Montgomery this 26th day of November, in STATE OF LOUISIANA, By the Governor: the year of our Lord 1956. EXECUTIVE DEPARTMENT. ORVAL E. FAUBUS, By the Governor: To the PRESIDENT OF THE SENATE OF THE Governor. JAMES E. FOLSOM, Governor. UNITED STATES; [SEAL] C.G.HALL, (SEAL) :MARY TEXAS HURT GARNER, This is to certify that on the 6th day of Secretary of .state. Secretary of State. November 1956, RussELL B. LoNG was duly 1957 CONGRESSIONAL RECORD - SENATE 7 chosen by the qualified electors of the State COMMONWEALTH OF KENTUCKY, N. Dak., was duly ·chosen by the qualified of Louisiana a Senator from said State to EXECUTIVE CHAMBER, electors of the State of a Sen­ represent said State in the Senate of the Frankfort, November 26, 1956. ator from said State to represent said State United States for the term of 6 years, be­ To the PRESIDENT OF THE SENATE OF THE in the Senate of the United States for the ginning on the 3d day of January 1957. UNITED STATES: term of 6 years, beginning on the 3d day of Witness: His Excellency our Governor Earl This ls to certify that on the 6th day of January 1957. K. Long, and our seal hereto affixed at Baton November 1956, the Honorable THRUSTON B. Witness His Excellency our Governor, Rouge, this 28th day of November, in the MORTON was duly chosen by the qualified Brunsdale, and our seal hereto affixed at year of our Lord 1956. electors of the Commonwealth of Kentucky Bismarck, N. Dak., this 10th day of Decem­ ber in the year of our Lord 1956. EARL K. LoNG, Governor. a Senator from said Commonwealth to rep­ NORMAN BRUNSDALE, (SEAL) WADE 0. MARTIN, Jr., resent said Commonwealth in the Senate Governor. Secretary of State. of the United States for the term of 6 years, beginning on the 3d day of January 1957. [SEAL] , Witness: His Excellency our Governor Al­ Secretary of State. STATE OF WASHINGTON, bert Benjamin Chandler, and our seal hereto ExECUTIVE DEPARTMENT, affixed at Frankfort, Ky., this 26th day of Olympia. November, in the year of our Lord 1956. WELCOME TO HON. ADLAI E. To the PRESIDENT OF THE SENATE OF THB ALBERT B. CHANDLER, STEVENSON UNITED STATES: Governor. (SEAL) THELMA L. STOVALL, Mr. JOHNSON of Texas. Mr. Presi­ This is to certify that on the 6th day of Secretary of State. dent, I am pleased and proud to an­ November ·1956, WARREN G. MAGNUSON was nounce to the Senate that one of Amer­ duly chosen by the qualified electors of the To the PRESIDENT OF THE SENATE OF THE State of Washington a Senator from said ica's most distinguished citizens and one State to represent said State in the Senate UNITED STATES: of our great Democrats, Hon. Adlai E. of the United States for the term of 6 years, This is to certify that on the 6th day of Stevenson, former Governor of Illinois, November, A. D., 1956, GEORGE A. SMATHERS beginning on the 3d day of January 1957. was duly chosen by the qualified electors of and the most recent nominee of our In witness whereof I have hereunto set my the State of a Senator· from said State party for President, is seated in the Dip­ hand and caused the . seal of the State of to represent said State in the S-enate of the lomatic Gallery. I should like to ask Washington to be affixed at Olympia .this 6th United States for the-term of 6 years, begin­ him to stand in order that Members of day of December A. D. 1956. ning on the 3d day of January 1957. the Senate may extend to him a welcome. EMMETT T. ANDERSON, In testimony whereof, I have hereunto set [Mr. Stevenson rose, and was greeted of Washington. my hand and caused the great seal of the by prolonged applause on the floor and in [SEAL) EARL COE, State of Florida to be affixed at Tallahassee, the galleries, Members rising.] Secretary of State. the capital, this 16th day of November, A. D., 1956. The VICE PRESIDENT. The Chair By the Governor, attest: will say to the Senator from Texas that To the PRESIDENT OF THE SENATE OF THE LEROY COLLINS, in view of the response both in the gal­ UNITED STATES: Governor. leries and on the floor, we would enjoy This ls to certify that on the 6th day of [SEAL] R . A. GRAY, hearing Mr. Stevenson speak; but, be-­ November, 1956, MIKE MONRONEY was duly Secretary of State. chosen by the qualified electors of the State cause the privilege of the floor is reserved only for Senators and certain· other per­ of Oklahoma a Senator from said State to NOTICE OF ELECTION OF UNITED STATES SENATOR represent said State in the Senate of the sons, that opportunity must be denied United States for the term of 6 years, be­ To the PRESIDENT OF THE SENATE OF THE him upon this occasion. Certainly we gining on the 3d day of January 1957. UNITED STATES: This is to certify that on the 6th day of are most happy to join in welcoming this Witness: His Excellency our Governor Ray­ November 1956 HERMAN E. TALMADGE was distinguished guest, and to have him mond Gary, and our seal hereto affixE;!d at duly chosen by the qualified electors of the with us, even though we are unable to Oklahoma City, this 20th day of November, State of Georgia a Senator from said State enjoy the eloquence for which he is well in the year of our Lord 1956. for the term of 6 years, beginning on the famed. By the Governor: 3d of January 1957. RAYMOND GARY, Witness His E'xcellency our Governor Governor. Marvin Griffin, and our seal hereto affixed ADMINISTRATION OF OATH [SEAL] ANDY ANDERSON, at Atlanta this 26th day of November in the The VICE PRESIDENT. The next or­ Secretary of State. year of our Lord 1956. der of business is the.. administration of MARVIN GRIFFIN, · Governor. the oath. The clerk will proceed to call STATE OF , By the Governor: the names in alphabetical order, in EXECUTIVE DEPARTMENT. [SEAL] BEN W. FORTSON, Jr., groups of four. CERTIFICATE OF ELECTION Secretary of State. The legislative clerk called the names To All to Whom These Presents Shall Come, of Mr. AIKEN, Mr. BENNETT, Mr. BIBLE, Greeting: UNITED STATES OF AMERICA, and Mr. BUSH . . THE STATE OF WISCONSIN, Know ye, that it appearing from the offi­ ExECUTIVE DEPARTMENT. These Senators-, escorted by Mr. cial canvass of the votes cast at the regular To the PRESIDENT OF THE SENATE OF THE FLANDERS, Mr. WATKINS, Mr. MALONE, and general election held within and for the UNITED STATES; Mr. PURTELL, respectively, advanced to· State of Oregon, on Tuesday, the 6th day This is to certify that on the 6th day of the Vice President's desk; the oath pre­ of November, A. D. 1956, that , November 1956 ALEXANDER WILEY was duly scribed by law was administered to them of Lane County, State of Oregon, received chosen by the qualified electors of the State the highest number of votes cast for the by the Vice President, and they severally of Wisconsin a Senator from said State to subscribed to the oath in the official office of United States Senator at said elec- represent said State in the Senate. of the tion; - . United States for the term of 6 years, com­ oath book. Now therefore, I, , Governor mencing on the 3d day of January 1957. [Applause on the floor and in the of the State of Oregon, by virtue and in pur­ In testimony whereof I have hereunto set galleries.] suance of the authority vested in me under my hand and caused the great seal of the The legislative clerk called the names the laws of the State of Oregon, do hereby State of Wisconsin to be affixed. Done at of Mr. BUTLER, Mr. CAPEHART, Mr. CARL­ grant this certificate of election and declare the capitol, in the city of Madison, this 26th said WAYNE MORSE, of Lane County, State SON, and Mr. CARROLL. day of November in the year of our Lord These Senators, escorted by Mr. of Oregon, to be duly elected to the office of 1956. United States Senator for the State of Ore­ WALTER J. KOHLER, BEALL, Mr. JENNER, Mr. ScHOEPPEL, and gon, for a term of 6 years beginning on the Governor. Mr. ALLOTT, respectively, advanced to 3d day of January, 1957. By the Governor: the Vice President's desk; the oath pre­ In testimony whereof, I have hereunto set [SEAL) Mrs. GLENN M. WISE, scribed by law was administered to them my hand and caused the seal of the State Secretary of State. by the Vi~e President, and they severally of Oregon to be hereto affixed. Done at the subscribed to the oath in the official oath Capitol at Salem, Oreg., this 4th day of De­ STATE OF NORTH DAKOTA, book. cember, A. D. 1956. DEPARTMENT OF STATE, By the Governor: Bismarck. [Applause on the floor and in the 'ELMO SMITH-, To the PRESID~NT OF THE SENATE OF THE galleries.] Governor. UNITED STATES: The legislative clerk called the names (SEAL) EARL T. NEWBRY, This ls to certify that on tl~e 6th day Qf of Mr. CASE of ·south Dakota, Mr. Secretary of State. November 1956 MILTON R. YOUNG, of Berlin, CHURCH, Mr. CLARK, and Mr. COOPER. 8 :CONGRESSIONAL RECORD-· SENATE January 3 These Senators, escorted by Mr. Mr. JOHNSTON of South Carolina, respec­ New Mexico.-Dennis Chavez and Clin• MUNDT, Mr. DWORSHAK, Mr. MARTIN of tively, advanced to the Vice President's ton P. Anderson. Pennsylvania, and Mr. BRIDGES, respec­ desk; the oath prescribed by law was New York.-Irving M. Ives and Jacob tively, advanced to the Vice President's administered to them by the Vice Presi­ K.Javits. desk; the oath prescribed by law was dent, and they severally subscribed to the North Carolina.-Sam J. Ervin, Jr., and administered to them by the Vice Presi­ oath in the official oath book. W. Kerr Scott. dent, and they severally subscribed to [Applause on the :fioor and in the gal­ North Dakota.- and the oath in the official oath book. leries.] Milton R. Young. . [Applause on the :fioor and in the gal­ The VICE PRESIDENT. The clerk Ohio.-John W. Bricker and Frank J. leries.] · will call the last two names on the list. Lausche. ·The VICE PRESIDENT. For the in­ The legislative clerk called the names Oklahoma.-Robert S. Kerr and A. S. formation of our guests in the galleries, of Mr. WILEY and Mr. YOUNG. Mike Monroney. the Chair points out that the signing of These Senators, escorted by Mr. Mc­ Oregon.-Wayne Morse and Richard L. the oath book is more than a mere ritual. CARTHY and Mr. LANGER, respectively, ad­ Neuberger. Until the Members sign the book their vanced to the Vice President's desk;. the Pennsylvania.-Edward Martin and pay does not begin. oath prescribed by law was administered Joseph S. Clark, Jr. The Clerk will call the next four names to them by the Vice President, and they Rhode Island.-Theodore F. Green and on the list. severally subscribed to the oath in the John 0. Pastore. The legislative clerk called the names official oath book. South Carolina.-Olin D. Johnston and of Mr. COTTON, Mr. DIRKSEN, Mr. ERVIN, [Applause on the :fioor and in the gal­ Strom Thurmond. and Mr. FuLBRIGHT. leries.] South Dakota.-KarI E. Mundt and These Senators, escorted by Mr. Francis Case. BRIDGES, Mr. DOUGLAS, Mr. SCOTT, and Mr. LIST OF SENATORS BY STATES Tennessee.- and Albert McCLELLAN, respectively, advanced to the Gore. Vice President's desk; the oath pre­ Alabama.-Lister Hill and John J. . Texas.-Lyndon B. Johnson and Price scribed by law was administered to them Sparkman. Daniel. by the Vice President, and they severally Arizona.-Carl Hayden · and Barry Utah.-Arthur V. Watkins and Wallace subscribed to the oath in the official oath Goldwater. F. Bennett. book. Arkansas.-John L. McClellan and Vermont.-George D. Aiken and Ralph [Applause on the :fioor and in the gal­ J. W. Fulbright. E. Flanders. leries.] California.-William F. Knowland and Virginia.-Harry Flood Byrd and A. The legislative clerk called the names Thomas H. Kuchel. Willis Robertson. of Mr. HAYDEN, Mr. HENNINGS, Mr. HICK­ Colorado.-Gordon Allott and John A. Washington.-Warren G. Magnuson ENLOOPER, and Mr. HILL. Carroll. and Henry M. Jackson. These Senators, escorted by Mr. GOLD­ Connecticut.-Prescott Bush and Wil­ West Virginia.-Matthew M. Neely and WATER, Mr. SYMINGTON, Mr. MARTIN of liam A. Purtell. Chapman Revercomb. Iowa, and Mr. SPARKMAN, respectively, .-John J. Williams and J. Wisconsin.-Alexander Wiley and ·advanced to the Vice President's desk; Allen Frear, Jr. Joseph R. McCarthy. Florida.-Spessard L. Holland and the oath prescribed by law was admin­ Wyoming.-Frank A. Barrett and istered to them by the Vice President, George A. Smathers. Joseph C. O'Mahoney. and they severally subscribed to the oath Georgia.-Richard B. Russell and Her­ in the official oath book. man E. Talmadge. Idaho.-Henry C. Dworshak arid Frank The Clerk will call the next four names CALL OF THE ROLL on the list. Church. The legislative clerk called the names Illinois.-Paul H. Douglas and Everett Mr. JOHNSON of Texas~ Mr. Presi­ of Mr. JAVITS, who was absent, Mr. JOHN­ .M. Dirksen. dent, I suggest the absence of a quorum. STON of South.Carolina, Mr. KUCHEL, Mr. _Indiana.-Homer E. Capehart a,nd Wil­ ·The VICE PRESIDENT. The Secre- _LAuscHE, and Mr. LoNG. liam E. Jenner. tary will call the roll. · These Senators, other than Mr. JAVITS, Iowa.-Bourke B. Hickenlooper and The legislative clerk called the roll, and escorted by Mr. JOHNSON of Texas, Mr. Thos. E. Martin. the following Senators answered to their KNOWLAND, Mr. BRICKER, and Mr. EL­ Kansas.-Andrew F. Schoeppel and names: LENDER, respectively, advanced to the Frank Carlson. Aiken Fulbright Monroney Vice President's desk; the oath pre­ Kentucky.-John S. Cooper and Allott Goldwater Morse Thruston B. Morton. Anderson Gore Morton scribed by law was administered to them Barrett Green Mundt by the Vice President, and they severally Louisiana.-Allen J. Ellender and Rus­ Beall Hayden Murmy subscribed to the oath in the official oath sell B. Long. Bennett Hennings Neely Maine.-Margaret Chase_ Smith and Bible Hickenlooper Neuberger book. Bricker Hill O'Mahoney [Applause on the :fioor and in the gal­ Frederick G. Payne. Bridges Holland Pastore leries.] Maryland.-John M. Butler and J. Bush Hruska Payne Butler Humphrey Potter The VICE PRESIDENT. The Clerk Glenn Beall. Byrd Ives . Purtell will call the next four names on the list. M assachusetts.- Capehart Jackson · Revercomb The legislative clerk called the names and John F. Kennedy. .Carlson Jenner Robertson of Mr. MAGNUSON, Mr. MONRONEY, Mr. Carroll Johnson, Tex. Russell Michigan.-Charles E. Potter and Pat Case, N. J. Johnston, S. C. Saltonstall MORSE, and Mr. MORTON. McNamara. Case, S. Dak. Kefauver Schoeppel These Senators ~ escorted by Mr. JACK­ Minnesota.-Edward J. Thye and Hu­ Chavez Kennedy Scott SON, Mr. KERR, Mr. NEUBERGER, and Mr. Church Kerr Smathers bert H. Humphrey. Clark Knowland Smith, Maine CooPER, respectively, advanced to the .-James O. Eastland and Cooper Kuchel Smith, N. J. Vice President's desk; the oath pre­ John Stennis. Cotton Langer Spark.man scribed by law was administered to them Curtis Lausche Stennis by the Vice President, and they severally Missouri.-Thomas C. Hennings, Jr., Daniel Long Symington and Stuart Symington. Dirksen Magnuson T almadge subscribed to the oath in the official oath Douglas Malone Thurmond book. Montana.-James E. Murray and Mike Dworshak Mansfield Th ye Mansfield. - Eastland Martin, Iowa Watkins [Applause on the :fioor and in the gal­ Ellender Martin, Pa. Wiley leries.] Nebraska.-Roman L. Hruska and Carl Ervin McCarthy Williams The VICE PRESIDENT. The clerk T.curtis. · Flanders McClellan Young will call the next four names on the list. Nevada.-George w. Malone and Alan Frear McNamara The legislative clerk called the names Bible. of Mr. REVERCOMB, Mr. SMATHERS, Mr. -New Hampshire.-Styles Bridges and TALMADGE, and Mr. THURMOND. Norris-Cotton. NOTIFICATION TO THE PRESIDENT These Senators, escorted by Mr. SAL• .-H. Alexander Smith and Mr. JOHNSON of Texas submitted the TONSTALL, Mr. HOLLAND, Mr. RUSSELL, and Cli:fford P. Case. following resolution (S. Res. 2) which 1957 · ·CONGRESSIONAL RECORD - SENATE 9 was read, considered by unanimous con­ Malone. Potter · ·Thye COUNT OF· ELECTORAL VOTE­ Martin, Iowa Purtell Watkins sent, and agreed to: Martin, Pa. Revercomb Wiley ORDER OF PROCEDURE Resolved, That a committee consisting of McCarthy Saltonstall Williams two Senators be appointed by the Vice Presi­ Morton Schoeppel Young Mr. GREEN. Mr. President, I sub­ dent to join such committee as may be ap­ Mundt Smith, Maine mit a concurrent resolution which pro­ Payne Smith,N.J. pointed by the House of Representatives to vides for the counting on January 7, wait upon the President of the United States NAY&-49 1957, of the electoral votes for President and inform him that a quorum of each House Anderson Hennings Morse and Vice President of the United States. is assembled and that the Congress is ready Bible Hill Murray I ask that the resolution be read. to receive any communication he · may be Byrd Holland Neely The resolution (S. Con. Res. 1) was pleased to make. Carroll Humphrey Neuberger Chavez Jackson O'Mahoney read, considered by unanimous consent, Under the foregoing resolution, the Church Johnson, Tex. Pastore and agreed to, as follows: Clark Johnston, S. C. Robertson Vice President appointed Mr. JOHNSON of Daniel Kefauver Russell Resolved by the Senate (the House of Rep­ Texas and Mr~ KNOWLAND the committee Douglas Kennedy Scott resentatives concurring), That the two on the part of the Senate. Eastland Kerr Smathers Houses of Congress shall meet in the Hall of Ellender Lausche Sparkman the House of Representatives on Monday, the Ervin Long Stennis 7th day of January 1957, at 1 o'clock post Frear Magnuson Symington meridian, pursuant to the requirements of NOTIFICATION TO THE HOUSE OF Fulbright Mansfield Talma~ge the Constitution and laws relating to the REPRESENTATIVES Gore McClellan Thurmond Green McNamara election of President and Vice President of Mr. KNOWLAND submitted the fol­ Hayden Monroney the United States, and the President of the lowing resolution , which was Senate shall be their presiding officer; that So Mr. KNOWLAND's amendment was two tellers shall be previously appointed by read, considered by unanimous consent, rejected. the President of the Senate on the part of and agreed to: The VICE PRESIDENT. The question ·the Senate and two by the Speaker on the ResoZVed, That the Secretary inform the now recurs on the resolution offered by part of the House of Representatives, to House _of Representatives that a quorum of the Senator from Texas. whom shall be handed, as they are opened by the Senate is assembled and that the Senate the ·President of the Senate, all the certifi­ is ready to proceed to business. The resolution was agreed to. cates and, papers purporting to be certificates of the electoral votes, which certificates shall be opened, presented, and acted upon in the HOUR OF DAILY ME.ETING ADMINISTRATION OF OATH TO alphabetical order of the States, beginning PRESIDENT PRO TEMPORE with the letter "A", and said tellers, having Mr. MANSFIELD submitted the fol­ then read the same in the presence and hear­ lowing resolution subject both pro and con; that we would tled by the vote which will begin at 6 the right to object, I should like to ask fix a definite time for voting on it; and o'clock on tomorrow, Friday, if the pro­ the Senator from Texas a question, based that we would try to set that time in ae­ posed unanimous-consent agreement is on the colloquy between the Senator cordance with the views and wishes of propounded and agreed to. from Illinois and the Senator from Texas all the Members of the Senate. I should like to ask the majority and the comment of the Chair as to the After conferring until late in the leader a question, to see whether we difference between a parliamentary in- night-until 11 · o'clock last night-and can arrive at a slight modification of quiry and a point of order. Am I to all this morning, it seems that the pro­ the proposed procedure. The majority understand that the effect of the pro- posed unanimous-consent agreement leader said he would accommodate the posed unanimous-consent agreement is more nearly represents the views of all wishes of Senators regarding the time that a Senator would not be privileged the Members of the Senate than any­ available for the debate, if the President under that agreement to raise a point thing else at which we could arrive. should wish to address a joint meeting of order as to whether or not .the pro- It is the opinion of the majority lead­ of the two Houses, and it should be nec­ posed motion of the Senator from New er that if the motion shall be agreed to, sary for the Senate to take a recess for Mexico is in order? and if the unanimous-consent proposal that purpose. Mr. JOHNSON of Texas. Yes; I think to be offered by the Senator from New Mr. JOHNSON of Texas. The ma­ so. Mexico, the minority leader, and myself, jority leader has expressed the hope that . Mr. MORSE. That means, then, that shall be agreed to, the question will be the President'.:; message will come to us again in this session of Congress the thoroughly discussed; opportunity to subsequent to the taking of the vote on Senate will not face up to the question make parliamentary inquiries will be af­ this question, and the majority leader directly as to whether or not a new ses- forded; the time required for making can assure the Senator from Minnesota sion of the Senate has the parliamentary them will be charged to the side making that that will be done. obligation of adopting new rules. The them, although the time required for the Mr. HUMPHREY. I so understand. only way this question can be de- answers to such inquiries will not be The majority leader said that the termined, and I think American history charged to either side; and the Senate time required for any statements by the is entitled to have the Senate determine will vote at 6 o'clock tomorrow, at which Presiding Officer would not be charged it, is for the Senate itself to face this time Senators will be at liberty to vote to the time available to either side. How­ issue squarely and directly. The Sen- either to lay on the table the motion of ever, there is a little conflict here. The ate should take the following parlia- the Senator from New Mexico and other Senator from Illinois [Mr. DOUGLAS] mentary steps in facing up to this prob- Senators, or not to lay it on the table, seeks to have 6 hours of debate. :Be­ lem.. First entertain · a motion such as according to the dictates of their con­ cause of these uncertainties, will not the the Senator from New Mexico · [Mr. science. majority leader consider setting the ANDERSON] proposes to make to the effect Mr. MORSE. Mr. President, will the time of meeting on tomorrow at 10 a. m., that the Senate proceed to adopt Senate Senator from Tex~s yield· at this point? so there will be no doubt that at least rules binding upon the 85th Congress. Mr. JOHNSON of Texas. I yield to 6 hours will be available for the debate, Second, the ·Senate and the Presiding my friend. and so we shall not have to be uncertain Officer should then consider· a point of Mr. MORSE. I thank the ·senator as to that situation? order raised by some Senator asking for from Texas. I wish to say that r shall Mr. JOHNSON of Texas. I am amen• a determination as to whether or not the . support the proposed unanimous-consent able to the suggestion of the Senator motion calling for the adoption of new agreement. However, I want the RECORD from Minnesota, who always is very per­ rules is in fact in order. Third, the Sen- to be perfectly clear in regard to what suasive. ate should then consider an appeal from we are doing when we support the unani­ Mr. HUMPHREY. I thank the Sen­ the decision of the Chair on the point of mous-consent agreement. Frequently ator from Texas. order. we are heard to say on the political plat- The VICE PRESIDENT. Is there ob­ If we will follow the parliamentary forms that the legislative process is a jection to agreeing to the request of the steps I have just outlined we should then, compromise process. So I think the Senator from Texas? and only then, meet the issue directly, RECORD should be made clear regarding Without objection, the request . is and not by the parliamentary diversion- this parliamentary compromise, and that agreed to. ary tactic of a motion to lay on the both the Senate and the public should Mr. JOHNSON of Texas. Mr. Presi­ table. know that when any Senator votes on the dent, I move that the motion of the Mr. JOHNSON of Texas. Mr.· Presi- motion to lay on the table, he really is Senator from New Mexico [Mr. ANDER• dent, the Senator from Oregon is a very voting on the question of whether new soNl be laid on the table. able parliamentarian; no Member of this rules for the Senate should be adopted Mr. President, I submit the proposed .body understands better than does he at the beginning of the 85th Congress. unanimous-consent agreement, which I the effects of motions. He is experi- Mr. JOHNSON of Texas. I look for- ask: to be read by the clerk, and then to enced in this respect. ward to hearing the Senator from Ore- be acted on. The proposed agreement is It is the opinion of the majority leader gon speak on that subject during the offered on behalf of the minority leader that we shall meet the issue when we act afternoon or on tomorrow. [Mr. KNOWLAND], the distinguished Sen­ on the motion to lay on the table. Mr. MORSE. Let me say that under ator from New Mexico [Mr. ANDERSON], Every Member of the Senate realizes that the proposed unanimous-consent agree­ and myself. if the motion to lay on the table shall be ment, I shall not be able to speak at my The VICE PRESIDENT. The pro­ adopted, that will end the matter. We customary length. [Laughter.] posed unanimous-consent agreement will reached a similar situation in 1953; we Mr. HUMPHREY. Mr. President--- be read. did not then have a unanimous-consent Mr. JOHNSON of Texas. I · yield to The legislative clerk read as follows: agreement, but we had a gentleman's my friend, the Senator from Minnesota. Ordered, by unanimous consent, That de­ agreement calling for substantially the Mr. HUMPHREY. Mr. President, re­ bate be in order on the motion of Mr. JOHN­ same procedure as that which we now serving the right to object, r wish to note SON of Texas to lay on the table the motion propose. first that the statement of the Senator of Mr. ANDERSON (for himself and others) to The very abie Senator from Oregon. is from Oregon has .so clarified the situa­ take up for immediate· consideration th~ adoption of rules of the Senate for the 8&th aware of the problems which confront tion that I think there is no need for Congress; that on Friday, January 4, 19.57, at the Senate and of the messages which are further discussion in regard to what this the hour of 6 o'clock p. m., the Senate pro­ to come before it. We have just at- is all about. . ceed to vote on said motion without further tempted to work out with the Senator We are assuming that under the debate; and that during the intervening pe­ from New Mexico [Mr. ANDERSON], the unanimous-consent agreement, the mo- riod the time devoted to the consideration of 12 CONGRESSIONAL RECORD - SENATE January 3 the said motion shall be equally divided be­ Mr. JOHNSON of Texas said: Mr. ident-elect and Vice-President-elect of the tween those favoring and those opposing the President, I should like to announce that United States on the 21st day of JanuaFy motion, and controlled, respectively, by the the committee to communicate with the 1957, is hereby continued and for such pur­ majority leader and Mr. ANDERSON, or -some­ President, to which the distinguished pose shall have the same power an,d authority one designated by them: Provided, however, as that conferred by such Senate Concurrent That parliamentary inquiries may be in order minority leader and the majority leader Resolution 64, of the 84th Congress. during this period. were appointed, has informed the Presi­ dent that Congress has assembled and is The PRESIDENT pro tempore. Is The VICE PRESIDENT. The ques­ ready to receive messages from him. there objection to the present consid­ tion is on agreeing to the proposed unan­ The President has told us he plans to eration of the concurrent resolution? imous-consent request. Without objec­ deliver a message personally on Satur­ There being no objectiC1n, the concur­ tion, the request is agreed to. day at 12: 30 p. m. at a joint meeting. rent resolution was considered and Mr. JOHNSON of Texas. Mr. Presi­ agreed to. dent, I thank the Senate, and I appre­ ciate the cooperation of my colleagues. MESSAGE FROM THE HOUSE RULES OF THE SENATE-PROCE­ I hope that the harmony which prevails A message from the House of Repre­ DURE UNDER UNANIMOUS-CON­ here today will extend throughout the sentatives, by Mr. Maurer, its reading SENT AGREEMENT session. clerk, announced that the House had Mr. JOHNSON of Texas. Mr. Presi­ Mr. President-- agreed to the concurrent resolution The VICE PRESIDENT. The Senator dent; earlier in the day in response to (S. Con. Res. 1) providing for the count­ an inquiry from my distinguished friend of Texas has the :floor. ing of the electoral votes for President from Minnesota [Mr. HUMPHREY], the and Vice President on January 7, 1957. majority leader said that in order to have The message also announced that the RECESS 6 hours' time for debate tomorrow on the House had agreed to the following con­ motion to lay on the table the motion of Mr. JOHNSON of Texas. I move that current resolutions, in which it requested the Senator from New Mexico, if it would the Senate now stand in recess, subject the concurrence of the Senate: be necessary for the Senate to meet at 10 to the call of the Chair. H. Con. Res. 1. Concurrent resolution es­ o'clock, the Senate would do so. Since The VICE PRESIDENT. The ques­ tablishing that the two HouEes meet in a that time it has been determined that tion is on agreeing to the motion of the joint session on Saturday, January 5, 1957; the President will address a joint meet­ Senator from Texas. and ing on Saturday, at 12: 30. So we shall The motion was agreed to; and

Congressional Senator offering Record Congress and I $6Ssion Date Subject motion Yeas Nays 1---,------i Cloture Volume Page

66th, 1st ______Nov. 15, 1919 Treaty of Versailles. ___ ------Lodge ___ ------_ 78 16 58 8555--8556 Yes. 66th, 3d ______Feb. 2, 1921 Emergency tarllI ______------Penrose ______36 35 60 2432 No. 67th, 2d ______July 7, 1922 Fordney-McCum ber tariff.------McCumber ______45 35 62 10040 No. 1st______Lenroot______69th, Jan. 25, 1926 World Court. ______------68 26 67 2678-2679 Yes. June 1, 1926 Migratory-bird refuges ______------Norbeck_------46 33 67 10392 No. 69th, 2d ______Feb. 15, 1927 Branch bankin~-- - - ______------Pepper______------65 18 68 3824 Yes. Feb. 26, 1927 Retirement of disabled emergency officers of the World War______Tyson ______------51 36 68 4901 No. _____ do ______Colorado River developmenL------Johnson ______32 59 68 4900 No. Feb. 28, 1927 Public buildings in the District of Columbia ______Lenroot_------52 31 68 4985 No. _____ do ______Creation of Bureau of Customs and Bureau of Prohibition ______Jones (of Washing- 55 27 68 4986 Yes. ton). 72d, 2d ______Jan. 19, 1933 Banking Act. _____ ------• ------Robinson ______58 30 76 2077 No. Antilynching ______--_------__ -_-- _-- _------_ Neely ______75th, 3d------Jan. 27, 1938 Wagner______37 51 83 1166 No. Feb. 16, 1938 ____ . do ______------• ------Barkley______42 46 83 2007 No. 77th, 2d ______Nov. 23, 1942 Antipoll tax. ______---• ------_____ do ______37 41 88 9065 No. 78tb, 2d ______May 15, 1944 ____ _do .. _____ ------.,_. ------36 44 90 2550-2551 No. 79th, 2d ______Feb. 9, 1946 _____ do _____ ------48 36 92 1219 No. FEPC .. ------·------.• ·------Ball ______------May 7, 1946 British loan ______.• ·------·-·------Knowland ______41 41 92 4539 No. May 25, 1946 Labor disputes .• _----__ • ------• ------• ------Barkley ______3 77 92 5714 No. July 31, 1946 Antipoll tax ______------__ ------.• ------39 33 92 10512 No. 81st, 2d ••.•••••. May 19, 1950 FE PC._ -_------Lucas _____ ------52 32 96 7300 No. 2d ______July 12, 1950 ___ . . do ______------___ . . do ..... ------55 33 96 9982 No. 83d, July 26, 1954 Atomic Energy Act.------Know land •• ------44 42 100 11942 No.

1 Many cloture petitions have also been withdrawn or held out of order since 1917 •. (From the Washington Post and Times Forever is a long time, however, and the functions without regard to the termination Herald of January 2, 1957) Senate on Thursday will consider Just how of a Congress. However, if the Constitution long it is. Here is the legal question at does not make the Senate a continuing body .ABSURDITIES AND CONFLICTS IN SENATE RULES .in both its legislative and executive func­ ARE OUTLINED issue: Is the Senate of the new 85th Congress tions it cannot be subject to the mandatory (By Irving Brant) necessarily bound by the Standing Rules of _application of past rules subordinate to those When the Senate convenes on Thursday, it the Senate of the expired 84th Congress, !unctions. will plunge at once into a fight over rule 22, without a specific adoption of them? Has When this test ls applied to the Senate's which was adopted in 1917 as an antifili­ the Senate in one Congress the power to bind chief business-legislation-the "continuing buster rule and was converted in 1949 into the Senate in a succeeding Congress, against body" theory breaks down in a multitude of a device for protecting filibusters through an the will of a majority of its Members? absurdities. eternity. Here is a nutshell history of Senate To bring this question to an· issue, it is . Rule 37 provides that in the second ·or any rules on debate: merely .necessary that as soon as the Senate .subsequent session of a Congress, treaties From 1789 to 1806, debate on a bill could convenes, a Member shall move the adoption S"ubmitted by the President shall be resumed be ended instantly by a majority of Senators of past Senate rules, with Rule 22 altered: A at the same stage in which they were left present, through adoption of an undebat­ defender of the filibuster will then make a at the close of the previous session. "But," able motion calling for the previous question. point of order that the old rules are still .the rule goes on, "all proceedings on treaties From 1806 to 1917 there was no limitation in effect. If Vice President NIXON overrules shall terminate with the Congress, and they on debate. the point of order, an appeal will be taken shall be resumed at the commencement of In 1917, to check :filibusters, a cloture rule from his decision. If the Senate, by a sim­ the next Congress as if no proceedings had was adopted. On the written motion of 16 ple majority, sustains the Vice President, the previously been had thereon." Senators, debate could be brought to a close majority can proceed to rewrite the rules and That may be construed in either of two by the affirmative votes of two-thirds of the .do what it pleases about the limitation of ways. It may be regarded as an acknowl­ Senators present and voting. debate. edgment ·that the Senate is not a continu­ In 1949, this. was changed to require the Against this course a constitutional objec­ ing body as to treaties, save for recognition affirmative votes of two-thirds of~ the entire tion is raised. The Senate, it is said, is a that the submission of a treaty by the Presi­ Senate-64 out of 96-and a clause was added continuing body. With its Members elected dent is not nullified by the transition from declaring that there should be no limitation for 6 years, one-third of them every 2 years, one Senate to the next. Or, it may be held of debate on a motion to change the rules. it can always produce a quorum of holdover to imply that the Senate has power to go on As a result of this alteration, the absence Senators. Therefore, it is contended, it does with the treaty in the new Congre::;s, but of any Senator has the same effect as a vote not-come to an end as the House of Repre­ chooses not to exercise that power. against cloture, and offsets two votes in favor sentatives does, whenever a. Congress expires. The latter would be true if, by constitu­ of it. The effect is enormously heightened On the other hand, all unfinished legislative tional mandate, the Senate actually ts a con­ by the higher majority required. For exam­ .and executive business of the Senate lapses tinuing body. But observe what this leads . ple, under the 1917 rule, with 20 Senators into nothing at the expiration of a Congress, to . absent_, an affirmative vote of 51 to 25 would and all its committees are elected anew Suppose that, in .the final session of a put a limit on debate. Under ·the 1949 rule, whenever a new Congress convenes. .Congress, the Senate adopts a rule that a vote of 63 to 13 against the filibuster would Supporting ·the continuing body theory treaties shall be resumed in a new Congress not be enough to stop it. is the fact that the Senate rules, by acquies­ at the same stage they reached in the pre­ The present rule gives the balance of power cence, have always held over from Congress vious one. It then adopts some highly con­ to sympathizers with · the filibuster who to Congress-without formal readoption. The .troversial reservations to a pending treaty, would not venture to vote openly in its de­ -present rules, except for later amendments, comp~able to those that killed the League of fense, but who can achieve the same results ware adopted on January 11, 1884, in the Nations, but adjourns without final action by avoiding the rollcall. To protect this in­ middle of a congressional term; Also, since on the treaty. November comes. The voters genious device, the 1949 amenders added 1890, the President pro tempore of the Sen· elect one-third of the whole Senate and de­ the clause which forbids limitation of debate ate ·has been elected for an indefinite period, feat every Senator who voted for the reser­ on a motion to change the rules. Thus the regardless of the 2-year life of Congress. vations. In January, the incoming Senators filibusterers were given a license to filibuster The real question is whether the Senate ls discover that they are helpless. The Senate, torever against .any attempt to get rid of constitutionally a continuing body. If it is, they are told, is a continuing body. Its new the rule protecting them. it can perform its legislative and executive Mei:µbers are bound by the decisions taken in CIII--2 18 CONGRESSIONAL RECORD - SENATE January 3 the previous Congress, with no chance to There is one rule, however, that a little band It won't help the cause any to have it tagged change the decisions because the right to of willful men has decided that a majority simply as a liberal Democratic battle. filibuster is protected by a rule constitu­ of the new Senate shall not determine for So far, four GOP Senators have publicly tionally binding on the new Senate without itself. That is rule 22, the rule that requires joined . the battle being planned by Demo­ its consent. Thus the "continuing body" a positive vote of 64 Senators to shut off crats PAUL DOUGLAS, of Illinois; HUBERT HUM­ theory would subvert the Senate's con~ti­ debate on any business before the Senate. It PHREY, of Minnescta.; JAMES E. MURRAY, of tutional function as to treaties. is also the rule that permits no closure what­ Montana; RICHARD L. NEUBERGER and WAYNE Next, what happens to the legislative func­ soever on any motion to take up a proposed MORSE, of Oregon; and PAT McNAMARA, of tion if the Senate is constitutionally a con­ change in the rules--a built-in filibuster Michigan. The Republicans openly support­ tinuing body? Senate Rule 32 says that "at machine, expressly designed for the purpose. ing the rule change are CHARLES POTTER, of the second or any subsequent session of a A week from today, when the 85th Con­ Michigan; IRVING M. IVES, of New York; Congress, the legislative business of the Sen­ gress convenes in Washington, a new effort THOMAS H. KUCHEL, of California; and CLIF­ ate which remained undetermined at the will be made to achieve a modification of rule FORD CASE, of New Jersey. close of the next preceding session of that 22. Though similar efforts have failed before It is to be hoped that the policy meeting Congress shall be resumed and proceeded this--the last occasion being in 1953-the the Republicans have scheduled before Con­ with in the same manner as if no adjourn­ interests of democratic government require gress convenes January 3 will produce at least ment of the Senate had taken place." that it be made again, and again, s.nd again, a tacit approval of the antifilibuster fight. That treats legislative business as if the until at last it succeeds as it eventually wm. The effort to change rule 22 will also need Senate was understood to die with the Con­ In this ef(ort Senators DoJJGLAS, of Illinois, the help of Vice President NrxoN in the par­ gress. If not, if the Senate is constitution­ HUMPHREY, of Minnesota, and their associa­ liamentary maneuvering. . As Presiding om­ ally a continuing body, it must have power to ted group of liberal Democrats and Republi­ cer of the Senate, he can make the ruling apply this unfinished business rule to the cans (including IVES, of New York, CASE of that will protect the antifilibuster move opening session of a Congress, as readily as to New Jersey, and CLARK, of Pennsylvania) from a filibuster. the second session. ought to have the strong support and effec­ Strongest weapon the opponents of a rule And what then? Among the undetermined tive backing of Americans concerned with change have is the illogical and constitution­ business of the Senate, at the end of a Con­ the viability of our constitutional processes. ally unsound tradition that the Senate is a. gress, is the disposition of bills originating in For, in essence, what these men will be doing continuing body, since two-thirds of its and already passed by the House of Repre­ next week when this subject comes up will membership is held over from session to ses­ sentatives. If the Senate is constitutionally be fighting to make democratic government sion. Because of this, they argue, its rules a continuing body, it has just as much power work, fighting against the power of a deter­ are held over from session to session without to. pass those . bills in the next Congress as mined group of die-hards to block legislation change. in the last one. Then come the absurdities. by means of that negation of the democratic So the antifillbuster forces will start with Can the Senate hold a conference on such process: the filibuster. a move to hold up adoption of rules until rule 22 is changed. In the absence of its a bill, with the conference committee of a It is a travesty to wrap the mantle of free House which has passed out of existence? If speech around the filibuster. That is exactly own rules, the Senate would proceed under House and Senate texts are identical, and no what the filibuster is not. On the contrary, ordinary parliamentary rules in which a sim­ conference is needed, can the Senate obtain it is a method by which a small but resolute ple majority governs. the signature of a past Speaker of the House group can physically prevent the enactment Should a point of order be raised against who may be dead or defeated? Or if he has of legislation desired by the majority-often, changing rule 22, the Vice -President could been reelected, will he sign retroactively as as Senator DOUGLAS points out, the over­ rule against it, thereby permitting the anti­ Speaker of a dead House? whelming majority. One of the great bless­ filibuster forces to beat down any appeal, The crowning absurdity is reached if such ings of our kind of government is that it using the majority which they are certain a bill is sent to the President and vetoed­ protects the minority against the rash or they can muster from both sides of the as it certainly would be-as unconstitutional. impulsive actions of a majority. But the Senate. The President would not even be able to filibuster does not contribute to such pro­ . This accomplished, they could then formu­ send it back, as the Constitution requires, tection. The filibuster is the antithesis of late a new rule 22, which will provide to the House in which it . shall have origi­ free and open debate, the considered action, that debate on ·any topic can be shut off by nated. That House would have ceased to the balanced evaluation of pros and cons, a majority vote instead of the two-thirds vote exist. It could only be conjured into being the careful evaluation of minority rights as of the full senate now required. The new by assuming -that the House of Representa­ against majority desires, that go to make up rule would also get rid of the section which tives is also a continuing body. Thus the the kind of democracy we like to think we perpetuates the filibuster by providing that chain of incongruities leads to an inescap­ have. debate on amending the rules cannot be shut able conclusion. Either each House is a con­ !!'his ls true for no matter what purpose off at all. tinuing body, or neither one is. the filibuster is employed; but it is most Leaders of the antifilibuster fight are There is in fact not a vestige of support obviously and unmistakably true when the amenable to some sort of compromise on 1n history, law, or logic either for the theory filibuster is used as a weapon against propos­ what it would take to shut off debate, if that that the Senate has the constitutional pow­ als to protect minority rights. And that is is necessary. But whatever the compromise, ers of a continuing body, or that the auto­ precisely the purpose that many of those it still would outlaw the filibuster. And matic co~tinuation of its rules has anything who defend rule 22 and the filibuster have that would be a. commendable accomplish­ mandatory about it. in mind. So long as rule 22 stands as it is ment. The very words of the Constitution con­ on the books of the Senate, civil rights leg­ It is obvious that the move will not suc­ tradict this claim. It says: islation of any sort will be virtually impos­ ceed unless there is strong bipartisan sup­ "Each House may determine the rules of sible. Even a motion to proceed to the con­ port. And conversely, as - Senator DOUGLAS 1ts proceedings." sideration of any motion to change the rules logically points out, it will succeed if there If somebody should propose a rule reading will be subject. to unlimited debate. This is is strong bipartisan support. "The rules of the Senate shall not be not free speech. It is blatant obstructionism The alternative, of course, if the Vice Pres­ changed," it would. be recognized instantly of the kind that could kill a. democracy. ident should rule that no change can be as a violation of the Constitution. But that No one wants arbitrarily to shut off debate. made, is a filibuster. The only good. thing is substantially what has been engrafted on What is needed is the opportunity to set a. about that is that it would come at the start the Senate, by a rule making changes ·in reasonable limitation on the length of de­ of the session when no legislation is at stake. rules subject to a perpetual filibuster, and bate. Yet neither the majority leader of the As far .as the southern Democratic Sena­ by denying the inherent power of the pres­ Senate nor the minority leader has seen flt tors go, it would seem much smarter for ent body to make its own rules. to recognize the manifest justice of this de­ them not to worry too much if the rule is To sustain the power of the Senate to mand. We think, however, that eventually changed. It is a seriously divisive issue, and if the filibuster could be outlawed the Dem­ free itself from the dead hand of the past, the American people will. its Members only need go to the words of ocratic Party could close ranks on other the Constitution: "Each House may deter­ issues. - mine the rules of its proceedings." [From the Daily Sun-Times of De­ Civil rights are here to stay. The Supreme Those who would have the Senate divest cember 17, 1956] Court has seen to that. So the filibuster itself of this constitutional power can best might just as well be outlawed as an un­ TIME To KILL THE FILIBUSTER democratic weapon to thwart the will of the appeal to the precedent of the ancient Chi­ The six Democratic Senators who are spear­ nese, who handed their sovereignty over to majority in any and all areas of legislation. their deceased grandfathers. heading the attack on the filibuster are ear­ nestly enlisting Republican support, and [From th.e St. Louis Post-Dispatch of that's a. wise move. December 20, 1956) [From the New York Times of December 27, It's time that Senate rule 22 was changed. 1956) It's the rule that permits the minority to CONGRESS SHACKLED THE ATTACK ON RULE 22 kill civil rights legislation and force com­ To the EDITOR OF THE POST-DISPATCH: The Constitution of the United States promises on other measures. The chances for enactment of any substan­ says, in article I, section 5, that "Each House The parliamentary maneuvering needed to tial civil-rights legislation by Congress may may determine the Rules of its Proceedings." change the rule requires bipartisan backing. well be determined by the outcome of the 1957 CONGRESSIONAL RECORD - SENATE 19 drive- for new rules which some of us will and a vote on civil rights legislation, but vote in accordance with the constitutional make in the United States Senate on Janu­ because it gives a minority power to obstruct provision that "each House may determine ary 3. the business of the Senate by essentially the rules of its proceedings." Under any From long and bitter experience, we have physical means. . other interpretation, newly elected Senators learned that Senate filibusters, prolonged talk A filibuster works, not by debate or reason would be denied a full voice in determining to prevent a vote, are the big obstacle to or parliamentary procedure or any other the rules under which they must serve. congressional action for human rights. proper democratic method, but by physically The Vice President, as President of the Over the recent years the House has passed exhausting the majority. It is a blackjack­ Senate, will therefore be called upon on Jan­ numerous civil-rights bills. All have died ing operation, by which a minority refuses to uary 3 to decide whether rule 22 is operative in the Senate. let the Senate function unless the Senate on that date. If he decides in the negative While the courts and the· Executive have agrees not to take up a certain piece of and is not overridden by the Senate itself, acted, Congress has been shackled. ·legislation. The effect is the same as if a. Senators will then be able to vote on the new Meanwhile, discriminations and coercions dictator surrounded Congress with troops . rule to be proposed by the six Democrats. If continue. They deny to many of our people until it agreed to take the action he wished he decides 1n the affirmative, Senators op­ equality of opportunity in voting, in educa­ it to take. posed to any change in the rules will be able cation, in employment, in transportation, The filibuster is built into present Senate to filibuster as long as their lungs last. Rule and in housing. They damage our Nation's rules, as Senator DOUGLAS says, and the only 22 has been kept operative until now by a position in the world struggle. practical way to attack it is to write new combination of southern Democrats and The problem is national, not sectional. rules the way the House and any other demo­ northern Republicans. But that alliance The need to free the Senate to act is obvious cratic body would write them-by majority may be dissolved in the light of current po­ and compelling. vote. This is what the antifilibuster Sen­ litical realities. The real gravedigger for such legislation ators will try to do on the opening day of It is said that it would be undesirable to and for other worthy measures is Senate the session. They can do it if they are sup­ precipitate a filibuster at this time when the Rule XXII. Under it debate can be brought ported by an understanding public and by world is in a state of crisis. A filibuster is to a close only by the vote of 64 Senators. enough Senators in both parties. undesirable at any time. But we do not be­ It has been impossible to secure 64 such The adoption of a new rule permitting lieve that the fear of one should prevent the votes to limit debate on a civil-rights bill. limitation of debate need not represent any Senate from freeing itself from the filibuster Rule XXII further provides that no limita­ real curtailment of the full and fair discus­ threat in the event of a decision that rule 22 tion of debate at all is permissible on a mo­ sion which lies at the heart of democratic is in force. Long ago this newspaper pub­ tion to bring up a rule change. procedure. All that need be done is to per­ lished a Herblock cartoon which showed a The filibuster is thus locked into the old mit debate to be closed by a reasonable num­ besotted, di&heveled :figure representing the rules, and the key is thrown away. ber of votes after full opportunity has "Qeen Senate sprawled in an armchair in a disor­ A bipartisan group of Senators of which given for debate. Thus in 1953 the foes of dered room with an empty bottle labeled I am one, therefore intends to move for the the filibuster proposed that after a certain "Old Filibuster" in his hand. The caption adoption of new Senate rules to curb the fili­ number of hours, debate could be ended by on the cartoon was, "I Got No Control Over buster at the start of the 85th Congress. a. petition signed by 49 Senators. Getting Myself." It is more than time, we think, for (Those who have publicly announced their that many Senators to agree on a cloture the Senate of the United States to get control support include Republican Senators IVES, motion would never be easy. But it would over itself. The way to do this is to establish CASE of New Jersey, KUCHEL and POTTER, and be possible--which can scarcely be said of majority rule in its proceedings. Democrats HUMPHREY, MCNAMARA, MORSE, the present requirement of 64 Senators. NEUBERGER, MURRAY, CLARK, and CHAVEZ.) Although the Republican floor leader, Sen­ Under the constitutional provision that ator KNOWLAND, has regrettably declared [From the New York Herald Tribune of each House may determine the rules of its against a rules change, four important Re­ November 24, 1956] proceedings, we are convinced that the new publican Senators have joined the fight on SHALL FILmusTERS Go? Senate may adopt new rules, just as in each the other side. Senator CASE of New Jersey Six Democratic Senators have asked their new Congress the House adopts its rules was one of the first to declare himself. Then colleagues to support a move on January 3, anew, and the Senate starts fresh on all bills, IVES, of New York, KUCHEL, of California, when the 85th Congress convenes, to enact a resolutions, treaties, and nominations. and POTTER, of Michigan-all significantly substitute for Senate Rule 22, which requires Indeed, this is the only time, before rule representing the larger States-came out the votes of 64 Senators to apply cloture and XXII's handcuffs are again effective, when against the filibuster rule. halt debate on a measure; in other words, to we can hope to- escape from the filibuster. In 1953, only five Republicans joined the end a filibuster. Instead of the require­ Senator Walsh in 1917 and a number of us liberal Democrats on the final vote against ment for a two-thirds vote of the Senate in 1953 fully outlined the legal basis for filibusters. In 1957, many more GOP votes membership, they would substitute a rule making this drive at the opening of Congress. will be needed, and many more could be necessitating only a majority. The success of this effort largely depends obtained if President Eisenhower in his role If this Senat~ rule cannot be changed at upon public understanding that behind the of party leader would unequivocally support the opening session of the new Congress, it complex confiict over Senate procedures lies the cause of democratic procedure. Can­ will stand for another 2 years. It has often the fate of vt•a1 civil rights. not Senators CASE of New Jersey, KucHEL, been called the bulwark of southern Senators A new rule to permit a limitation of debate IvEs, and POTTER find a way to convince him in their efforts to block civil-rights bills, after a reasonable opportunity for full dis- that he should do so? either by filibuster or by the threat of one. cussion is essential. · But individual Senators have adopted the Only by thus restoring majority rule and (From the Washington Post and Times Her• tactie in the past when they were vehemently removing the filibuster roadblock- can the ald of November 24, 1956} opposed to certain proposals, using up hour civil-rights promises of both parties be re­ CLOTURE IN THE SENATE after hour by reading books, giving recipes deemed. Six Democratic Senators have announced for shrimp creole and sazarac cocktails, or With strong bipartisan ba.cking, we can talking on other subjects which had no con­ succeed. that they will move on the opening day of Congress, January 3, to change the rules of ceivable relation to the bill under discussion. PAUL H. DoUGLAS, An individual Senator usually can delay United States Senator from Illinois. the Senate so that debate on any question may be limited by a simple majority vote. passage of a bill just so long by filibustering The motion will revive an old and bitter if he does not have support of his colleagues. FLIMFLAM IN THE SENATE controversy. The Senate has a tradition of There is certainly no reason why Members of When the Senate meets next January 3, unlimited debate which has been used on the Senate should not be allowed time to it will start considering bills, resolutions, many an occasion by small minorities to de­ state in full their reasons for opposing or nominations, and other business with a clee.n lay or to frustrate Senate action through the supporting any particular measure. But to slate, on the assumption that the Senate is technique of the filibuster. Limitation of talk on endlessly on unrelated subjects in an not a continuous body. Then it will turn debate has been governed since 1917 by rule effort to wear down the opposition, to per- around and adopt the rules of the last session 22 which provides that cloture may be ap­ • mit a bloc of Senators to use an t.ntiquated on the asumption that the Senate is a con­ plied only by a vote of 64 Senators and that rule to circumvent the democratic principle tinuing body. it may not be applied at all in connection of the rule of the majority, is an entirely dif­ This flimflam, part of the intricate parlia­ with a motion to change any of the standing ferent question. Rule 22 should certainly be mentary machinery that keeps the power of rules of the Senate. revised so as to permit each Senator to have filibuster alive, has been challenged by a bi­ The first question which the Senate will his full say on the issue up for a vote but to partisan group of Senators, one of whom­ have to decide in regard to the proposed mo­ prevent the use of filibustering tactics to Senator PAUL H. DouGLAS, of Illinois--dis­ tion of the six Democrats is whether rule 22 thwart the will of the majority. cusses the question in our letters column is in force when the Senate of the 85th Con­ today. gress convenes. It has been persuasively ar­ (From the St. Louis Post-Dispatch of Senator DoUGLAS and his colleagues deserve gued that even if the Senate be ·considered a. December 17, 1956) every bit of bipartisan help they cB.n get. continuing body, the rules which it adopted For they are attacking a basic weakness in in one Congress cannot be carried over to PROTECTION BY FILmUSTER our democrat1c·processes wnich is wrong, not another and that the Senate in each new The filibuster is the South's "only protec­ only because it prevents fair consideration Congress is free to adopt rules by majority tion against unwanted legislation repugnant 20 CONGRESSIONAL RECORD - SENATE January '3 to its traditions. And besides, even those HUMPHREY, for a group of Democrats, and tomatically inherits moss-covered Senate Senators who now seek to curb the power Senators CLIFFORD CASE, IRVING IVES, . and rules, including rule No. 22, adopted in 1917, of unlimited debate never have hesitated to THOMAS KUCHEL, for a number of Republi­ which requires the vote of 64 Senators to use filibustering tactics when it served their cans, seem agreed on this proposal: That after put an end to a filibuster. · purposes to do so. 2 days of debate, a vote of two-thirds of the Never in Senate history has it been pos·­ So runs the familiar argument of the Fort Senate, present and voting (that is, two­ sible to get 64 votes to end a filibuster on Worth Star-Telegram against any change in thirds of any quorum), can end debate, and civil rights legislation and if rule No. 22 re­ the Senate filibuster rule. It is of course that after 15 days of debate, a majority vote mains in effect the chances for the passage true that the tactics of extended debate have can end debate. of any new civil rights legislation in 1957 been used by northerners and westerners as The present Senate rule, which requires an will be exactly nil. well as by southerners. But the objective almost impossible 64 Senators to bring legis­ That is why foes and advocates of civil sought by such tactics varies widely in dif­ lation to vote against a filibuster, has been rights are looking forward to January 3 as ferent cases. in force for the past 40 years. A change in the fateful day when the Senate itself will

In some cases, as with fairly recent fili­ the rule can be achieved only under two cir­ be asked to decide whether it is a continuintJ'0 busters by Senators MORSE, of Oregon, and cumstances: body or a new body. DouGLAs, of Illinois, the purpose has been If there is strong bipartisan backing for the Everyone admits the House of Representa­ not to prevent discussion or action on a par­ Douglas-Case proposal and a willingness to tives is not a continuing body. All Members ticular bill, but to attract public attention let a filibuster run its course at the very of the House are elected for 2 years. A new to the issue and stall for time, in the hope opening of the Senate. (A filibuster has the House convenes every time there is a new that public opinion would rally to their side. least pr ospects of success when time is not Congress. Each new House adopts the rules Almost always, in the case of an organized pressing.) which will govern its proceedings. southern filibuster against civil-rights legis­ If Vice President NIXON, as Presiding Officer However, only one-third of the Senators lation, the purpose is quite different-actu­ of the Senate, were to determine that rules are electe-d every 2 years. When a n ew Con­ ally to prevent the Senate from even con­ of the preceding Senate were not binding gress convenes, two-thirds of the Senators sidering the l~gislatlon in question, to talk so on the new session, this would mean that are holdovers. Tradition is on the side of long and so irrelevantly that eventually the rule XXII would not be binding and that those who contend that the Senate is a con­ Senate, out of sheer physical exhaustion, will under parliamentary procedure the Senate tinuing body. Rules of the Senate have car­ give up the effort to bring a civil-rights bill would be free to adopt new rules by a ried over from one Congress to another, to a vote. straight majority vote. usually without challenge. Only twiee in There have been cases in history when a It seems to me that it would be highly recent years, in 1917 and again in 1953, has northerner or westerner used the filibuster unconventional and highly reasonable for the continuing body theory been questioned in its true sense just as southerners have Mr. NIXON to rule that the Senate has the on the opening day of a new Congress. used it. The late Senator Norris, of Ne­ right to adopt new rules at the beginning Those who oppose the theory of continua­ braska, did so in an effort to prevent the of a new session-the same as the House of tion point out that every 2 years the Senate arming of merchant ships in the First World Representatives. starts its deliberations with a clean slate. War. But the fact t}J.at Senators from all There is a difference, of course, between Bills, resolutions, nominations, treaties, and sections have taken advantage of a bad rule the two Houses. The Senate puts a great other matters which were hanging fire when does not make the rule any better. premium on the fact that since two-thirds the last Congress adjourned, have to be in­ Whoever uses the privilege of unlimited of the Senate always holds over from the troduced anew if they are to be· considered. debate for the purpose of imposing a physi­ previous session, the Senate is a "continuing They have another argument which is cal barrier to the consideration of or voting body" and therefore its rules are continuing, most compelling. It rests on that part of the on a piece of legislation is abusing parlia­ not expired. Other presiding officers of the Constitution which says, "Each House may mentary forms. Whoever uses debate not to Senate have ruled this way and this is why determine the rules of its proceedings." If newly elected Senators find themselves discuss but to prevent the discussion of an it would be unconventional for Mr. NIXON issue is perverting the democratic process. bound by filibuster rules which were adopted to upset the setup. 40 years ago, the authority given each House This is why we think the Senate should This doesn't mean it wouldn't be logical adopt a rule permitting a reasonable limita­ to determine its own rules becomes mean­ and just to do so. The late Senator Walsh ingless. tion of deba,te. That does not mean gagging of Montana put it this way when he was Meaningless, also, is the authority given anybody. It means permitting a fair major­ advocating such a ruling in 1917: "A major­ Congress in the Constitution to pass legisla­ ity of Senators, after a certain period of de­ ity may adopt the rules in the first place. tion by majority vote in both Houses. bating time has elapsed, and after due notice It is preposterous to assert that they may Senator DOUGLAS, Democrat, of Illinois, to vote for an orderly termination of debate deny to future majorities the right to change says the "dignity of the Senate and its abil­ so that a vote can be had. Southerners, them." ity to function as a democratic legislative northerners, easterners, and westerners alike I can't escape the feeling that there is a body" is at stake in the issue over Senate need the protection of such a rule-for what way for the Vice President to help the Senate rules-particularly rule No. 22. Viewed in it protects is the democratic principle itself. break through the ice jam which has that light, the Senate tussle scheduled for blocked even a moderate change of the rules. January 3, its opening day, becomes a matter [From the New York Herald Tribune of Obviously the Senators could not abide a. of major concern for every American. December 24, 1956] rule which premised that the Senate is not a "continuing body." But couldn't Mr. How Wn.L MR. NIXON RULE? NrxoN rationally and fairly rule that despite (From the St. Louis Post-Dispatch of (By Roscoe Drummond) the fact that the Senate is a continuing body, December 2, 1956] When the Senate convenes on January 3 its rules expire at the end of each session­ SENATE VERSUS SENATE RULES the first order of business will be for the as does all legislation-and ml.1st be re­ Vice President NIXON may get a chance, Senate to decide how it is going to conduct its adopted, with or without change, so that the when the next Congress opens, to show business-whether by majority rule or by re­ ne:wly elected one-third of the Senators has whether he is as friendly to a curb on Senate curring minority veto by filibuster. the same right to vote on rules governing filibusters as was his predecessor, the late The right of filibuster is deeply imbedded them as the Senators previously elected? Alben W. Barkley. in the traditions and rules of the United Northern and western Democrats are plan­ States Senate.· It is not going to be uprooted [From the Denver Post of December 19, 1956) ning another effort to change the filibuster or even mildly circumscribed without sharp rule, on the day the Senate convenes. controversy and confiict. We are now headed SENATE SHACKLES They will argue that the Senate has no for just this kind of controversy on the open­ Is the Senate of the United States a con­ rules until it adopts them, and that the ing day of the new Congress-which is a good tinuing body or does a new Senate come into adoption of rules is therefore subject to gen­ time to have it. existence every 2 years when a new Congress eral parliamentary law, which permits closing What is the contro111ng rule of filibuster? convenes? of debate by a simple majority vote. Thus It is this: There can be unlimited, unstop­ This sounds like an exercise in semantics they hope to gain consideration of a new fili­ pable debate on every piece of legislation and which can be of concern only to those per­ buster rule without first being required to on any amendment to any piece of legislation sons who like to argue legal and grammati­ break a filibuster, as the Senate rules them­ except under one condition: If 64 Senators cal technicalities. But it is more important selves provide. are physically present in the Senate and vote than that. Whether this strategy will work or not de­ to end debate. That provision is designed to If the Senate meeting on January 3 is a pends upon the attitude of a majority of be read in the fine print, rarely used. new Senate, it can adopt parliamentary Senators toward the question of whether the Furthermore, there is one issue on. which rules under which a filibuster would be im­ Senate is a continuing body. If it is, then debate ls completely unlimltable. So long as possible, thereby clearing the way for the one can argue that its rules automatically one Senator wants to talk on and on, it is adoption in 1957 of civil rights legislation carry over from one session to the next in not within the power of even 95 Senators to as advocated by President Eisenhower and the absence of action to the contrary. And bring to a vote any proposed change in the others. under those rules, action to the contrary can­ rules. But if the Senate which meets January 3 not be taken so long as any Senator chooses What kind of change in the rules is being is merely a continuation of the Senate which to exercise his right of unlimited debate­ sought? Senators PAUL D()UGLAS and HUBERT has been meeting regularly since 1789, it au- that is, his right of filibuster. · 1957 CONGRESSIONAL RECORD - SENATE 21 The likeliest way in which the issue could rule 22, nor why northern and western ship-64 votes-to limit debate. Any at­ come to a head is through a ruling by the Democratic Senators should not join them. tempt to ease this requirement during the Vice President, as presiding officer, on rt is true that such an alliance would split session is itself subject to unlimited debate. whether or not the Senate is a continuing the Democratic Party, spur the 2-party Changing the filibuster rule at the start body. His judgment would then be subject system in the South, and eventually elimi­ of the session is clearly the only practical to ratification or reversal by the Senate. nate the advantage Dixie derives from a 1- method of curbing filibusters. There is a Vice President Barkley faced a similar situ­ party dictatorship, and for this very reason sticky technical argument, however, over its ation in 1949 when called upon to decide nonsotithern Senators may not go along. propriety. The House adopts new rules at whether a motion to consider a change in the If they will not vote to end filibustering, the start of each Congress because all terms rules was subject to a limitation of debate. we believe that a combined Negro-liberal­ expire every 2 years, so the House clearly is He held that it was, thus casting his lot with labor vote will divorce them from political not a continuing body. Can the same be Senators who seek a reasonable curb on fili­ life in 1958. said of the Senate, which holds over two­ busters, but the Senate overruled him. By a The time has passed when politicians can thirds of its Members at each election? deal with the Republicans, the southern talk liberal and vote reactionary, and expect The question was debated 3 days at the Democrats then put through what they con­ the voters to forget it. start of the 1953 session and was resolved by sider an iron-clad protection of the filibuster a 70 to 21 vote in favor of tabling motion by power. This is the rule now in force, which [From the St. Louis Post-Dispatch of Novem­ Majority Leader Robert Taft. Forty-one provides for unlimited debate unless 64 Sen­ ber 25, 1956] Republicans and 29 Democrats, mostly from ators agree to a limitation-and also provides the South , voted to table, against 15 Demo­ that no limitation at all can be invoked in To BEAT THE FILIBUSTER crats, 5 Republicans, and 1 Independent. the case of a move to change the rules. The six Democratic Senators who promise a If the liberal Democratic group expects to If this seems like an absurd and legalistic fight to revise the Senate filibuster rule when win the argument this time, it obviously will way for a great parliamentary body to tie Congress opens may seem to be embracing a have to make inroads on the Republican side itself in procedural knots, it is. But can the lost cause. Win or lose, the fight ought, of of the aisle. The two G. 0. P. Senators lined Senate unravel the tangle? That will de­ course, to be made. But this time there is up thus far indicate the Democrats have a. pend, in large measure, upon how much co­ every prospect that the Democrats can en­ long way to go to achieve a bipartisan an­ operation the Republicans give the northern large their last vote against the filibuster. swer to the filibuster. and western Democrats who are trying to do They could even win the battle if President The Eisenhower administration has an ex­ something about it. Eisenhower would give them a hand. cellent record on civil rights, and this paid Four years ago President Eisenhower left off in the 1956 election among Negroes, both [From the Minneapolis Tribune of December the whole question of Republican policy on in the South and northern cities. Attorney 17, 1956] the issue to Senator Taft, the majority lead­ General Brownell has announced vigorous er. And Senator Taft entered into a bold efforts to enforce the civil-rights laws. It BOTH THYE AND HUMPHREY combination wit h the southern Democrats to would be consistent with this attitude of Minnesotans should be pleased that both sustain the filibuster rule, the result being the Republican administration for Repub­ their Senators have alined themselves against that 41 Republicans voted for it and only 5 lican Senators to support the move toward the Senate rule which has long blocked civil­ against. Democrats voted for it 29 to 15. ending the throttlehold on civil-rights leg­ rights legislation. This is rule 22 requiring This time there is less excuse for the islation of the southern minority in the a two-thirds vote to limit debate. It is at the President to stand aloof from the battle. He Senate. very heart of the power to filibuster. is no longer a political novice and he should Both Senator THYE and Senator HUMPHREY be well aware that, if Congress is ever to con­ want to see this power curbed. Both are con­ [From the Christian Century o! sider fairly any moderate civil rights legisla­ December 26, 1956] vinced that the effort to curb it cannot suc­ tion, the power of extremists to talk such bills ceed without bipartisan support. to death must be curtailed. If the President MOVE GROWS TO END SENATE FILIBUSTER Such support is already t aking shape. A would make it administration policy to op­ For a short time at the opening of each group of 10 Senators (6 Democrats and 4 Re­ pose the unlimited right of filibuster in the new Congress the opportunity exists to publicans) is expected to move against rule Senate, and stand firm on this line, the abolish t h e filibuster and so end domination 22 on the opening day of Congress. These victory could be won. of the Senate by a southern Democratic Senators will contend that the Upper-House But whether that happens or not, the six minority. The Senate is not a continuing is not a continuing body and that the adop­ Democrats who have resolved to take the body, but must adopt a new set of rules at tion of new rules is therefore in order. They initiative deserve a vote of thanks. They are the start of each new Congress. A bipartisan will argue that the new Senate is at liberty to Senators HUMPHREY of Minnesota, DOUGLAS group of liberal Senators have announced adopt its own rules by a majority vote, un­ of Illinois, MORSE and NEUBERGER of Oregon, that they intend to use the time before adop­ hampered by rule 22. It will be up to Vice MURRAY of Montana, and McNAMARA of tion of rules for the 85th Congress to argue President NIXON to make a decision here. Michigan. against inclusion of the famous rule 22. Senator HUMPHREY is a member of this This provision says that cloture, or limita­ group of 10. Senator THYE is not. But THYE, (From the Des Moines Register of November tion of debate, may be applied to a bill only like HUMPHREY, favors an all-out attack on 28, 1956] when 64 Senators vote for it. Once rule 22 rule 22. If the continuing body concept of is incorporated in the rules of the Senate, a the Senate prevails, success will not be easy. MOVE To LIMIT FILIBUSTERS minority can block any action by endless Yet if there is a strong coalition of Repub­ The fate of the Federal civil rights legis­ talk. In practice, the filibuster is employed licans and Democrats determined to curb the lation for the next 2 years could be· decided mainly against civil-rights legislation, and filibuster, success might follow a long and as early as January 3, when the Senate meets mainly by southerners. This year six Demo­ stubborn fight. for the opening session of the 85th Congress. crats started the move to drop rule 22. They We are glad that THYE and HUMPHREY are This is the date a group of Democrats, have been joined by four Republicans-Sen­ prepared to stand against the filibuster. headed by Senators PAUL DOUGLAS, of Illi­ ators CHARLES E. POTTER, of Michigan; IRVING Until rule 22 is changed, the outlook for civil­ nois, and HUBERT HUMPHREY, of Minnesota, M. IvEs, of New York; CLIFFORD P. CASE, of rights legislation will be utterly forlorn. hope to push through a revision of Senate New Je.rsey; and THOMAS H. KUCHEL, of Cali­ rules on filibustering. The move is taking fornia-all from States where the Negro vote (From the Pittsburgh Courier of December on a bipartisan complexion with avowals of makes a difference. The originators of the 29, 1956] support so far from two Republicans-Sen­ current move, which deserves to succeed, and ator IRVING IVES, of New York, and CLIFFORD will succeed if it receives sufficient public THE WAR ON RULE 22 CASE, of New Jersey. support, are Democrats HUBERT HUMPHREY, Eleven United States Senators have de­ The plan is to revive the attempt first of Minnesota; PAUL H. DOUGLAS, Of Illinois; clared war on Senate Rule 22 which requires made in 1953 to get the Senate to agree that WAYNE MORSE and RICHARD L. NEUBERGER, of an affirmative vote of 64 Senators before de­ it is not a continuing body. If it does agree, Oregon; JAMES MURRAY, of Montana; and bate can be brought to a close and which, it then would proceed to adopt rules for the PAT McNAMARA, of Michigan. With the ex­ moreover, permits no limitation of debate at session, rather than follow past practice of ceptions of DOUGLAS and MCNAMARA, these all on a motion to bring up a rule change. carrying over rules from Congress to Con­ Senators are not immediately and personally This is based on the hoary fiction that the gress. concerned about Negro votes in their States. Senate is a continuing body, even though The great advantage in adopting new rules, But they are concerned about the failure of each session is numbered as if it were, the !rom the point of view of antifilibustering the Senate to produce adequate laws to pro­ coming Senate being the 85th. Senators, is that debate on these new rules tect the civil rights of citizens of minority Since it is most difficult to get 64 out of 96 would not be subject to filibuster. It could races. They see in this failure a. threat to Senators to agree on anything, let alone civil be shut off by simple majority vote. The the Democratic Party and, more important, rights, the prospects for change are ad­ key rules change they hope to put through to American democracy. Senators of both mittedly not bright, especially since all is one to make it easier to close o1I filibus­ parties rightly seek to return to rule by the southern Senators and a few northern ones ters during regular session. majority. If this move succeeds, they will are openly against it. As the rules stand now it ts virtually im­ discover that most Americans seek the same We can se·e no sound reason why the 47 possible to curb a filibuster. It takes a two­ thing and are prepared to abide by the Republican Senators should not vote a~ainst thirds vote of the entire Senate member- majority's decisions. 22 CONGRESSIONAL RECORD .- S:ENAT£ January 3 LIBERATING THE SENATE on the opening day of Congress that as of Six Northern and liberal Democrats are [From the New Republic of December 31, that moment the Senate has no rules. That taking the lead in attempting to change 1956] is what he will insist on January 3. It was rule 22. Unless it is done the Nation will tried before, in 1953, when Senator CLINTON continue to see democratic procedure re­ On the day, February 3, 1917, that Presi­ ANDERSON (Democrat, New Mexico) moved for duced to a travesty and ·the Democratic dent Wilson asked Congress to authorize the the adoption of the rules, but his motion was Party tainted with the stigma of extreme arming of merchant ships, the House of Rep­ tabled, 70-21. Its opponents then, and now, reaction. resentatives approved his request, 403 to 14. claim that the Senate is a continuing body, A month later, the Senate was still debating and that its rules carry over from one ses­ [From the Denver Post of November 30, 1956] the matter. An 11-Senator filibuster, led by sion to another. SIX MEN AGAINST A LONG TRADITION "Fighting Bob" La Follette, had the floor. This argu~ent seems to us fatuous, for the "'The Senate of the United States,'' Wilson Constitution itself provides that "each House Rules of the United States Senate can be angrily charged, "is the only legislative body may determine the rules of its proceedings,'' changed at any time by majority vote. Seem­ in the world which cannot act when its ma­ and in fact, the Senate does not act as a con­ ingly, the six "liberal" Democratic Senators jority is ready for action. A little group of tinuing body where legislation is concerned; who have announced they will try to change willful men, representing no opinion but action on bills, resolutions, treaties, and the rule which requires a two-thirds vote their own, have rendered the great Govern­ nominations dies at the end of each Con­ to stop a filibuster should not have too much ment of the United States helpless and gress. trouble putting their plan across. contemptible. • • • The only remedy is that Whether Senator DOUGLAS' opening-day Don't be deceived. The filibuster as an the rules of the Senate shall be so altered tactic works this time depends entirely on institution is protected by a set of parlia­ that it can act." the Republicans, and they will be torn by mentary gimmicks as well as more than 100 The imperative of public opinion was on conflicting impulses. Some who favor civil years of Senate tradition. the President's side, and suddenly, after only rights legislation honestly share the late Sen­ Some pretty influential men, including the 3 short days of argument, the Senate took ator Robert Taft's conviction that the Sen­ late Woodrow Wilson, have tried to put limits itself in hand and adopted a rule permit­ ate is a continuing body, and that the on interminable debates. None has suc­ ting two-thirds of those present and voting Douglas motion would be out of order. On ceeded so far. to limit debate by invoking cloture. It had the other hand, the Republican Party since The filibuster, as a device to enable a mi­ taken 20 years for the Senate to discipline it­ then has made substantial gains among nority to keep a majority from passing legis­ self even that much. Yet although "the Negro voters, and for many civil rights advo­ lation, first came into general use during alacrity of the Senate in adopting cloture cates the Douglas motion will be viewed as a the 1840's when Democrats used "it against shows what results are possible under the test of Republican sincerity. the Whigs. In those days there was no way pressure of a militant public opinion,'' ob­ It is predicted that some of the Republi­ to impose a gag rule to end debate-by a served the New Republic in its March 17, cans will decide that their political self­ two-thirds vote or any other vote. 1917, issue, "it should be the aim of progres­ interest lies in defeating the Douglas mo­ In 1917 certain Senators used the :filibuster sives not to let that militancy die after ex­ tion, so as to increase the probability of a in an effort to defeat President Wilson's pro­ pending itself for a crumpet." filibuster on civil rights later in the year. posal to arm merchant ships. Wilson re­ In 1917 the rule on cloture was no crumpet. From their point of view, nothing could be ferred to them as a "little group of willful It was a loaf of stone that has now lain on more satisfactory than the spectacle of a men" and declared, "The Senate of the the stomach of the Senate for 40 years. Clo­ nasty, knockdown, dragout fight between ture has been invoked 22 "times, unsuccess­ United States is the only legislative body tn Northern and Southern Democrats-with Re­ the world which cannot act when its ma­ fully except on 4 OCC5'tSiOnS, and none Of these publicans on the sidelines and no action on 4 involved civil rights. The mere threat of a jority is ready for action." civil rights. As a result of Wilson's fuming, the Senate talkathon has usually been enough to pre­ We do not know how Vice President NIXON vent civil rights legislation from coming to a adopted rule XXII, which is still in force and will rule on the admissibility of a motion for permits cloture, or a gag on debate, to be im~ vote. the adoption of the rules, or whether a ma­ But even the children of Israel (who had posed by two-thirds vote. jority of the Senate will approve or reject How difficult it is to obtain a two-thirds provoked the displeasure of One mightier the basic Douglas thesis that the Senate is than all the Southern Democrats who ever vote to end debate is indicated by the fact not a continuing body. But we are reason­ that efforts to impose cloture have failed were) were granted a reprieve after 40 years. ably confident of one thing: a majority of Is the Senate to suffer forever from a rule of many times and have been successful only Americans approve of further Federal action four times in nearly 40 years. The last time its own making? We shall have a partial in defense of civil rights; they support the answer on January 3 when a Senator rises to cloture was used successfully was in 1927. Supreme Court's desegregation decisions; Filibusters were used by southern Senators move the adoption of the Senate rules. Hid­ they oppose racial restriqtions on voting and den in that simple motion is the heart of the in 1922 and 1938 against antilynching bills. employll!ent. These aims are not partisan In 1942, 1944 and 1946, filibusters were used civil rights fight, and the future of the fili­ as far as the country is concerned. But will buster. To understand the complicated, to prevent anti-poll-tax bills from passing. the Senate too accept them as national im­ In 1946 an attempt to use the gag to pass a parliamentary maneuvering that will take peratives? If so, a new. coalition may come place once that motion is made on the open­ fair employment practices act was defeated. into being, a coalition of constructive pur­ The last serious attack on the filibuster ing day of the 85th Congress, we must begin pose and not, as in the past, simply an alli­ at the beginning. came in 1948 and 1949. A motion to take up ance of convenience between Southern Demo­ an anti-poll-tax bill in the Senate ran into The 1917 rule permitted two-thirds of the crats and the more reactionary Republicans. Senators voting to limit debate not merely a filibuster in the summer of 1948. An effort on a final, substantive motion, but on a mo­ was made to impose the gag by the two­ (From the Sacramento Bee of November 26, thirds rule. tion ·to proceed with the debate on a sub­ 1956] stantive motion. But in 1948, the acting The late Senator Vand~nberg, Republican, chairman of the Senate, Arthur Vandenberg, DICTATOR FILIBUSTER of Michigan, who was presiding as President ruled that cloture could not be invoked on Still another attempt will be made to of the Senate pro tempore, held that under procedural matters; debate on those was un­ abolish rule 22 of the United States Senat~ rule 22 cloture could be used to end de­ limited. The following year, this ruling was procedural system and for the good of the bate upon a pending measure but not to end reversed by Vice President Barkley; but Mr. country success should crown the efforts. debate on a motion to take up and con­ Barkley's decision was challenged, and he This rule makes it necessary to obtain a sider a measure. was overriden by a vote of 46 to 41. two-thirds majority to shut off senatorial Early 1n· 1949, Vice. President Barkley, in Twenty-three Republicans and 23 Southern debate and there is no chance short of una­ an effort to clear the way for President Tru­ Democrats united in support of no limitation nimity to halt talkathons when the issue man's civil-rights program, ruled that Van­ on procedural debate. is a change in the Senate rules. denberg's interpretation was wrong and that At this point, Senator Kenneth Wherry Rule 22 is the means by which Southern cloture could be used to stop any debate-:-­ (Republican, Nebraska) offered a compro­ Senators have throttled and talked to death whether on a pending measure or not. mise amendment to rule 22, one which civil-rights legislation. Its defenders hold The Senate, by a vote of 46 to 41, promptly Southern Democrats might have written it aloft as supremely democratic since it per­ upheld Vandenberg's interpretation and themselves. For the Wherry compromise mits unlimited debate. overthrew Barkley's. As a result, there is (which passed) provided that two-thirds of Actually it is supremely undemocratic. It now no way to stop debate on motions :rre­ those sworn in (rather than present and vot­ establishes the dictatorship of the filibuster. liminary to the actual consideration of a ing) were required for cloture-that is, 64 Democracy never was conceived as a stale­ proposal. votes. Even more pleasing to the South, the mate. It never was meant to permit the If the "liberal" six make a motion to compromise provided that cloture could not dominance of the minority but merely to change rule 22 to permit a majority to impose be invoked on a motion to change the rules. provide reasonable safeguards for it. cloture, protectors of the present rule can From that time on, an anticivil rights mi­ If unanimity generally were required ~or filibuster as long as they like-or as long as nority has enjoyed absolute security against action in democracy it would be a system their strength hold_s out. If that filibuster the will of the majority. in which one man could be supreme. That is should come to an end, a two-thirds vote In the opinion of those like Senator PAUL dictatorship. Yet usually at least once every would be necessary to approve the motion to DouGLAS (Democrat, Illinois) there is only session of Congress the American people are take up the proposed rule change. one easy way to free the Senate from the ·mistreated to the spectacle of majority rule If · there should be another filibuster on stranglehold of rule 22, and that is to insist being ta.lked in to a farce. the rule change it~elf, a two-thirds vote 1957 CONGRESSIONAL RECORD - SENATE 23 would be required to stop that debate. If southerners have habitually used the old fili­ tues. We are reminded that other men and the advocates of the rule change should sur­ buster technique on such occasion to en­ other groups may someday find it indispen­ vive two filibusters and should succeed in force their minority opinions upon the Con:. sable to their protection, as they have before; mustering two votes of two-thirds each for gress and upon those American people the that the Dixiecrat cause today may be the their side, then and only then could rule 22 Democr~ts wooed in August. liberal's salvation tomorrow. be changed 'by a simple majority vote. Filibuster _is_the antithesis of reasonable We say again that those who earnestly take Incidentally, a good number of conserva­ debate. It blackmails constitutional law and this view reject the democratic idea. That tive Republicans are just as opposed as democratic government. Its elimination as idea is premised on the calculated risk that southern Democrats are to any abolition of a congressional practice should indeed be legislative bodies can and will make errors. the two-thirds rule. They take pride in undertaken, as the Democrats at Chicago The danger is real. But the risk is the es­ calling the Senate the greatest deliberative urged, at the beginning of the new Congress. sence of democracy. body in the world. They believe in unlim­ Failure to act on this would be the first ited debate, even though it may be crippling and most noticeable Democratic default to at times. the people on the party's platform promises. [From the Christian Science Monitor of That's why we say, don't be deluded about Fulfillment of this promise would be as much December 31, 1956] the task which the "liberal" six have set for in the interest of harmony within the Demo­ SENATE'S FROZEN RULES themselves. We wish them luck. They will cratic Party as it would be in the national The United States Senate is facing a real need it. interest. showdown on the old question of filibuster­ Having gone through all the stress and ing. When Congress opens this week a bi­ [From the Pittsburgh Courier of December strain of producing that enormous state­ partisan group led by Senators DouGLAS, 15, 1956) ment of principles in the heat of Chicago last August, the Democrats represented there HUMPHREY, IVES, and CLARK will make a bold Quo VADIS REPUBLICANS? will certainly expect the Congress they elect­ bid to change the Senate rules. They are Whether the Republican Party will be in ed to bear its aims at least subconsciously aiming especially at an interpretation of the the saddle after 1958 depends upon what Re­ in mind. And "at the beginning" will be rules which in effect requires unanimous publican Senators do when the 85th Congress consent to change them. But their ultimate interpreted to mean January or February­ objective is to curb filibusters and clear a convenes on January 3, 1957. not at some indefinite point of the 85th con­ path for civil-rights legislation. If the 47 GOP Senators vote as a solid bloc gressional future. against filibustering rule 22, they can pick Six Democratic Senators (HUMPHREY, It would be well if the civil-rights con­ up enough nonsouthern Democrat votes to DOUGLAS, MORSE, MURRAY, MCNAMARA, and troversy were not allowed to confuse the issue reorganize the Senate as a non-continuing NEUBERGER) Thursday signed a 16-point dec­ over filibusters. For this issue concerns the body and to enforce closure of debate on civil laration of a liberal legislative program that larger and continuing question as to whether rights legislation. commits them to move on January 3, 1957, a small minority should be able to veto in­ If the GOP follows its previous course of toward a cloture rule permitting a majority definitely congressional action on any sub­ splitting between those who represent large of Senators to close debate after an opportu­ ject. Opinions may differ as to the purposes Negro constituencies going for civil rights nity for full and thorough discussion. But for which filibusters have been used; many and those from areas where there are few or it is still questionable whether such liberal who have opposed their use at one time have no Negro votes allying themselves with the Senators are in a majority, even among the favored it at another. Eastland-Talmadge axis, then the Republi­ Democrats. They may merely be setting off The best arguments for it are that it pro­ cans will lose both in 1958 and 1960. a bitter civil-rights fight. vides a last-ditch safeguard of the rights of Because of its more forthright attitude a minority and that on some questions the intensity of minority feeling should be given toward civil rights, the Republican Party won [From the New York Post of January 2, 1957) the November election with most of the extra weight. There may be wisdom in such southern Negro vote and a significant shift THE BATTLE OF THE SENATE reasoning. But the civil-rights issue raises a of nonsouthern Negro voters to the GOP Once again a fateful battle for democracy further question, for here the filibuster has column. ls about to be fought on the floor of the been used to deny the rights of a minority This striking gain in Negro support indi­ United States Senate. within a minority. cated not only approval but expectation that Technically the conflict centers on the ef­ Theoretically and historically the filibuster the good times would continue to roll in the fort of a group of liberals in both parties. to looks like a poor adjunct of effective repre­ direction of civil rights. revise the rule of the Senate which safe­ sentative government. It is not really a Negroes will be watching very closely the guards the filibuster. safeguard of free speech, but rather an abuse events following the opening of the Senate on Fundamentally the issue ls whether a of speech. Often it is a doling of words January 3, 1957, and if the Republican bloc small band of willful southern diehards will which makes speech meaningless and frus­ is found to be up to its old divisive tricks, be forever allowed to strangle the democratic trates democratic action. History attributes then it can kiss the Negro vote goodbye. process. most of the weakness which permitted the The blunt· truth is that the Republicans There is no question of suppressing rea­ repeated partitioning of Poland to rules that from now on will not be able to stay in power sonable debate. Every proposal for curbing blocked action by its Parliament. The Sen­ unless they dramatically and wholeheartedly the filibuster protects full debate. What is ate's cloture rule-requiring 64 affirmative back civil rights without evasion or equivo­ solely at stake ls the right of a few men to votes-is not so stringent, but the provision cation; so the choice before them in January permanently paralyze the Senate by resort to barring any closing of debate on a change is success or suicide. unlimited oratory long after the will of the or rules does permit a veto by 1 Member. majority is plain. If the filibuster were generally used, it [From the Denver Post of November 25, 1956) The test is a clear challenge to both parties. would not be tolerated. If it were frequently Both are pledged to civil-rights legislation; used against those who favor it most, they WILL THEY De IT? yet it has long been evident that no effective would lose their taste for it. We do not More than a month before the new Con­ legislation in this realm will pass as long as recommend a resort to such extreme meas­ gress convenes with its majority of Demo­ the southern extremists retain the filibuster ures. But those who defend the filibuster crats, it may seem rude to rub Democratic power. should think twice about the extremes to noses in the 1956 Democratic platform and On the eve of this historic clash it is decep­ which they may be tempted. At the very remind them of promises made in Chicago tive and dishonorable irrelevancy for the least they ought to concede that the Senate convention days. The Democrats had suc1;l President and his congressional deputies to rules should not be frozen until unanimous a struggle with certain portions of their plat­ talk grandiosely of their civil-rights program consent is obtained to amend them. form that more than ever they would prob­ without taking a stand on the filibuster. The Senators proposing a change will make ably choose to forget the thing, as usual, now The southern battalions have heard such their move in the first minutes of the 85th that the election is over. It was one or the gaudy announcements before; they know it is Congress. They contend that at that mo­ longest ever written-nearly 10,000 words­ empty rhetoric as long as they retain the ment the Senate, like the House, can adopt but there is one short paragraph it would be sanction to talk democracy to death. a new set of rules by a simple majority vote. for their own good to remember: The majority leaders of both parties-LYN• Their opponents argue that the Senate is a "Improving congressional procedures: In DON JOHNSON and Wn.LIAM KNOWLAND-ap­ "continuing body" because two-thirds of its order that the will of the .Alne'rican people pear alined in support of the filibuster. Members carry over. may be expressed upon all legislative pro­ Probably a clear word from the President The advocates of change declare the legis­ posals, we urge that action be taken at the could alter KNoWLAND'S stand; at the very lation and appointments before the Senate beginning of the 85th Congress to improve least it could insure enough Republican votes expire with each congressional session and congressional procedures so that majority to swing the result. Will the word come? have to be renewed. They point out also rule prevails and decisions can be made Where will Vice President NIXON stand? after reasonable debate without being Surely it is absurd for the White House to use that new Members should have some effec­ blocked by a minority in either House." the pretext that it cannot interfere in a tive voice in the rules that govern them. In the 85th Congress where the Democrats procedural matter when the procedure goes Inc;leed, they contend that even 1! the Sen­ so happily establish thei:µselves as a majority, to the very heart of the business of democ­ ate be considered a continuing body, that there are bound to be hot disagreements racy. does not deprive it of the right granted by within their own party between northern As the showdown nears we are again told the Constitution to "determine the rules of liberals and southern segregationists. The the filibuster has intrinsic democratic vir- its proceedings." 24 CONGRESSIONAL RECORD ~- SENATE January 3 Let us recognize that checks- on impulsive facilitate the· business of the Senate and ·President in· reaching his lifstoric decision. majority action may be wise and useful. But the implementation of the mandate of the He must therefore be guided by the letter nothing in the American constitutional sys­ ·electorate? and spirit of the Constitution and by the tem favors a perpetual frustration of the (The question ls not whether the Senate precedents on related issues; so guided he established purpose of the people. Sooner or is a continuing or continuous body. As we can only reach the decision which accords later procedures which permit such frustra­ shall show in this brief; the terms "continu­ with the fundamental principle that the liv­ tions must be modified. ing" and "continuous" are simply adjectives ing shall determine the destinies of the liv­ used to convey the fact that two-thirds of the ing and that a - democracy rests upon the majority will of the governed. [From the Milwaukee Journal of December Members of the Senate carry over from Con­ 30, 1956] gress to Congress. They are adjectives re:. STATEl\!IENT OF FACTS suiting from this one aspect of the Senate; OUTLAW THE Fn.mUSTER they are not a cause of anything. The ques- The Senate of the 85th Congress will con­ . tion is not whether the words "continuing" vene at 12 o'clock meridian on January 3, The question before the Senate when it 1957. Immediately after the prayer, the for­ reconvenes Thursday will be this: "Is ma­ and "continuous" are appropriate adjectives to describe the Senate of the United States, malities of ·administering the oath to new jority rule to prevail?" members, and the election of officers, the fol­ Senate rule 22 allows a minority to para­ but whether the majority of Senators meet­ lowing motion will be made: . lyze majority action by use of the filibuster ing for the first time in the new Congress (unlimited debate). A group of Democrats have the power to adopt their own rules "In accordance with article I, section 5 of and Republicans led by PAUL DOUGLAS, Dem­ fr·ee from obstructions laid down m·any years the Constitution which declares that •• • • ocrat of Illinois, will move to change rule earlier. While we are confident that this Each House may determine the rules of its 22 and end the power to paralyze. brief successfully disproves the general ap­ proceedings • • • ,' I now move that this Two hurdles face the DouGLAS forces. They plicability of these adjectives to the Senate,1 body take up for immediate consideration must first beat down the argument that the ·our case does not depend upon proving, as the adoption of rules for the Senate of the Senate is a continuous body and therefore an academic exercise, that those who take 85th Congress." cannot adopt new rules at the opening of a comfort in references to the Senate as a Consideration has been given to presenting session. Next they must win a change in rule continuing or continuous body have used the the motion to take up rules before the elec­ · 22 so that cloture (closing of debate) can be wrong adjectives. In sum, the question is ti~n .of officers. Indeed, strict logic might ap­ voted by something less than 64 votes, a prac­ not whether the Senate is a continuing or pear to demand such action since officers are tically impossible margin. continuous body, but whether the majority customarily elected under rules which have Logic and justice are on the DOUGLAS side. of the Senate of the 85th Congress may adopt already been adopted. We have, nevertheless, The filibuster violates Democratic concepts its own rules free of the fetters of earlier deemed it appropriate to withhold the mo­ by thwarting the will of the Senate majority senatorial actions and rules.) tion to take up the rules until the officers ·and, frequently, of a majority of the Ameri­ have been elected. This order of proceeding can people. No issue of freedom of speech SIGNIFICANCE OF RULING would appear to be in the interest of the or debate is involved. The issue is the set­ · The decision of the Vice President upon organization and expeditious operation of ting of a reasonable limitation on the length the motion to take up the rules of the Senate the Senate. It has been the order of pro­ ·of debate so that a Senate majority can act of the 85th Congress may well prove to be ceeding generally in the House of Repre­ and the Senate machinery can operate. the most significant ruling ever made by a sentatives. It is also the procedure that was There's no predicting how the DouGLAs Presiding Officer of the Senate. For the followed in 1953. Furthermore, at that time motion will make out. The Senate is ever Vice President's . ruling may determine Vice Presid_ent Barkley, after the election of reluctant to change. Four years ago a Re­ whether the Senate of the United States officers had been completed, answered a publican-southern Democrat coalition tabled will, in the critical years ahead, be in a posi­ query as to the rules governing the election a like motion by a 70 to 21 vote. tion to reflect the views of the majority of with the statement that "the organization However, no such lopsided result is ex­ its members and of the people who elected of the Senate is an. inherent right of. the peded this time. The liberal Democrats them, or will be chained to inaction by the Senate, as it is of any sovereign body, and all have been strengthened by a plank against veto power of an unyielding minority rep­ that has taken place up to date has been the filibuster in the party platform. Liberal resenting special and sectional interests. Under that inherent right" (99 CONGRES­ Republicans have increased in number since What is at stake is far more than civil rights SIONAL RECORD 10). In the same vein, Sena­ 1953. Members of both ·parties outside of legislation, important as that -is; what is tor -Taft ·stated that "it is . ~air to say that the South are anxious to pass some civil at stake is the ability of the Senate to func­ none of the matters that have been acted on rights legislation after canvassing results of tion as a democratic legislative body in the today have been taken up under the provi­ the recent election. And there will be no interests of justice and peace. sions of any particular rules" ( 99 CoNGREs­ significant civil rights legislation out of the The question that will be placed before SION AL RECORD 10). In light of th.ese consid­ 85th Congress if rule 22 remains as is. the Vice President by the motion to take erations, we do not believe that proceeding Senators WILEY and McCARTHY of Wiscon­ up rules has never been placed sql,larely be­ to the election of officers by unanimous con­ sin voted to table the rule changes proposals fore the presiding officer of the Senate. No .sent could possibly constitute a.n acquies­ of 4 years ago. There seems some hope that doubt it was because Vice President Barkley cence in the rules of the Senate of the 84th one or both will vote the other way this time. was prepared to rule the Anderson motion Congress or a waiver of the right to move to Such a reversal, we believe, would meet with in order in 1953 (see e.g. Newsweek, January :take up the rules of the Senate of the 85th approval by a majority of their constituents, 19, 1953) 2 that no point of order was made Congress. If the Vice President should not who certainly support the fundamental against the motion and no opportunity was agree with this analysis and the proposed American principle of majority rule. given him to . make the ruling in question timing of the motion to take up rules, it is here. However that may be, no direct prece­ requested that he indicate such disagree­ DECEMBER 31, 1956. dent is presently available to guide the Vice ment before January 3. Otherwise the mo­ BEFORE THE VICE PRESIDENT .OF THE UNITED tion will be made a~ set forth above. STATES (ACTING AS .PRESIDENT OF THE SENATE 1 Upon request the Legislative Reference Once the motion to take up rule& has been OF THE UNITED STATES )-IN THE MATTER Service of the Library of Congress has pre­ made, those supporting the filibuster and OF THE VICE PRESIDENT'S DECISION ON MO­ pared two briefs · (one on each side) on the opposing new rules may .either: TION TO TAKE UP RULES-BRIEF IN SUPPORT question "Is the Senate a Continuing Body?" (a) raise a point of order against the mo• OF PROPOSITION THAT MOTION To TAKE UP While the briefs are helpful on this academic tion; or RULES OF SENATE OF 85TH CONGRESS Is IN issue, they are not directed at the real ques­ (b) move to table it, first allowing reason­ ORDER AND IN ACCORDANCE WITH THE CON• tions before the Vice President. able debate as Senator Taft did in 1953.a STITUTION OF THE UNITED STATES 2 Vice President Barkley was undoubtedly If those opposing the motion raise a point QUESTIONS PRESENTED influenced by ·the brief of the Leadership Of order against the motion on the ground Conference on Civil Rights which was made 1. Whether the motion to be presented by available to him prior to the opening of Con­ that the Senate of the 85th Congress already certain Senators on January 3, 1957, to take gress in 1953. This brief is the most com­ has rules (carried over ~rom the_Senate of up for immediate consideration the adoption plete study ever made of the power of the of rules for the Senate of the 85th Congress, Senate of a new Congress to adopt its own, •Senator Taft made his motion to table is in order? rules unfettered by the actions or· rules of after .substantial debate on the motion to 2. Whether the Constitution, and particu­ the Senate of any preceding Congress. We ta~e up rules had been permitted. Presum­ larly article I, section 5 thereof, authorizes urge the Vice President to give careful con­ ably this sQllle courtesy would be shown this .the Senate of each new Congress to deter­ sideration to this brief and to ·facilitate his time despite reports circulating in the press mine its own rules? J"eview of the brief we are appending the full to the contrary. . Certainly those.who.defend 3. Whether action by the Senate of an debates in 1953 which include the leader­ ,the principle .of unlimited debate would earlier Congress can prevent the Senate of ship conference brief · (see 99 CONGRESSIONAL hardly want to be in the position of prevent­ the 85th Congress from adopting the rules RECORD 181-201). We have also. borrowed ing titelr opponents.from even making a full which the majority of the duly-elected Sen­ liberally. f}"OJ:l! th~t. docume];l.t in the prepara· statement of their position on the .fioor of ators of the 85th Congress believe will best tion of this brief. the Senate. 1957 . CONGRESSIONAL RECORD- SENATE 25

the previous Congress), the Vice President ARGUMENT . best means shall not be used, but those alone will be called upon to make a ruling upon I. The majority of the Senate in each Con­ without which the power given would be the question whether the old rules carry gress has a constitutional right to adopt nugatory, would have been to de ~rive the over to the Senate of the 85th Congress.' rules of proceedings for the Senate of that Legislature of the capacity to avail itse:I of Actually, such a point of order rather than Congress unfettered by action or rules of experience, to exercise its reason, and to ac­ a motion to table would appear to be the the Senate of any preceding Congress commodate its legislation to circumstances." appropriate method of determining whether The suggestion that rules enacted by men the old rules carry over to the Senate of the Article l, section 5 of the Constitution of the United States declares that "each House long since dead or retired from public life 85th Congress. For, if the old rules do not may determine the rules of its proceedings." should prevent the majority of the Senate carry over and the motion to take up rules Although there are no directly relevant Ju­ of the 85th Congress from adopting its own is in order, as we believe it to be, the motion dicial or legislative precedents interpreting rules is contrary to the very i:pirit of democ­ ought not be tabled as tabling would leave this provision. of the Constitution, it seems racy upon which the Constitution is predi­ the Senate without permanent rules for the quite clear from the language and context cated. There is no more basic principle of 85th Congress and would actually not even that "each House" means not only the sepa­ democracy than that the living shall deter­ settle the question whether the rules carry rate branches of the Congress-that is, the mine their own destinies unhampered by the over.5 House and the Senate-but also the separate dead hand of the past. It becomes an ab­ If the motion to take up rules is held in branches of each succeeding Congress. No surdity to argue that rules adopted years or order and is then adopted by the Senate, a reason has been or can be adduced to inter­ even generations earlier can bind new Sen­ motion will be made to adopt, as the rules of pret this constitutional provision as a grant ators who are elected on pledges to par­ of rulemaking authority to the Members of ticular programs which the old rules make the Senate of the 85th Congress, the old rules impossible. with a revised rule XXII. The new rule the House and Senate meeting for the first time in 1789 and a withholding of this same We cannot state this proposition as well XXII might provide for a limitation on de- as Thomas Jefferson did many years ago: . bate if, after 2 days' notice, two-thirds of the authority from the Members of the House and the Senate of later Congresses. Both "Can one generation bind another, and all Senators present and voting supported clo­ language and logic lead to the conclusion others, in succession forever? I think not. ture or if, after 15 days' notice, a majority of that the constitutional authority to make The Creator has made the earth for the liv· the Senators present and voting supported rules is granted to each House of each Con­ ing, not the dead. • • • A generation may cloture. This proposal would permit prompt gress. bin~ itself as long as its majority continues action on emergency measures supported by It is significant that article I, section 5, is in hfe; when that has disappeared, another two-thirds of the Senators present and vot­ an identical grant of rulemaking authority majority is in place, holds all the rights and ing, while, at the same time, it would assure to each House of Congress. It is not dis­ powers their predecessors once held, and may no less than 2 weeks of debate on legislation puted that the House of Representatives of change their laws and institutions to suit before a majority of Senators present and each new Congress has the power to, and themselves. Nothing, then, is unchangeable voting could obtain cloture. An alternative does, adopt new rules at the opening of each but the inherent unalienable rights of man." (The Jefferson Cyclopedia, vol. VII pp. 377 would be to allow cloture after 15 days only Congress (see point V). The identical con­ 378.) ' • upon a majority vote of the entire member­ stitutional provision cannot reasonably be ship of the Senate (that is, 49 Senators). given a different interpretation as applied to As one generation cannot bind another, so the Senate, a coordinate branch of the "Con­ one legislature cannot bind its successor. . Other alternatives the Senate wlll likely have This fundamental principle of the inde­ presented to it are to allow cloture only by gress of the United States" (art. I, sec. 1). For, not only do the two bodies act as a team pendence and full authority of each new two-thirds of the Senators present and voting legislature, recognized by all authorities, has or to retain the existing rule XXII or even in the Congress, but the rulemaking author­ ity of the House can be rendered meaningless been well stated by Judge Cooley (Constitu­ to do away with cloture entirely (1. e., recog­ if the Senate is not also in a position to tional Limitations, 6th ed., 1890 pp. 146- nize the practicalities of the existing situa­ _ adopt rules that will make possible the ex­ 147): • tion). All the proposals for a new rule xxri pression of the majority will of the Senate "To say that the legislature may pass irre­ that have been made allow full debate before and thus of the Congrei:s. pealable laws is to say that it may alter the cloture can be applied and all Senators sup­ Every principle of constitutional construc­ very Constitution from which it derives its porting the motion to take up rules for the tion supports the interpretation of article I authority, since, insofar as one legislature Senate of the 85th Congress are strongly com­ section 5, which gives the majority of th~ could bind a subsequent one by its enact­ mitted to the proposition that cloture should Senate present on January 3, 1957, the right ments, it could in the same degree reduce only be applied after full debate. to "determine the rules of itc proceedings" the legislative power of its successors; and But the question as to which cloture rule unfettered by action or rules of the Senate the process might be repeated until, one by will ultimately be adopted is irrelevant to the · of any preceding Congress. The Constitu· one, the subjects of legislation would be ex­ · tion of the United States should be inter­ cluded altogether from their control, and the question whether the motion to take up rules constitutional provision that the legislative ts in order. What is at issue here is the power preted in the light of the intention of its framers to build a democratic government power shall be vested in two Houses would of a majority of the Senators of the 85th · be to a greater or less degree rendered Congress to make the decision on the rules reflecting the will of the ·governed not only · for the day but for an enduring future. ineffectual." that will bind them in their work in that The inherent right of legislative bodies to Congress. The existence of that power is What Chief Justice Marshall said in McCul­ loch v. Maryland (4 Wheat. 316, 415) of the be unfettered by previous assemblies has clear. It resides in the Constitution itself. · congressional power to pass necessary and been forcefully recognized by the Supreme - proper legislation, is equally applicable to its Court of the United States in cases dating "Although it would be technically pos­ power to make its own rules without the im­ back over a long period. This right, as sible for the Vice President to avoid a rul­ pediments of the past: analyzed by the Supreme Court, does not ing by placing the point of order before the arise from any particular phraseology in "The subject is the execution of those Federal and State constitutions; it arises Senate for a vote without rendering a deci­ great powers on which the welfare of a na­ sion upon the point of order himself, it is from the very nature of successive legisla­ tion essentially depends. It must have been tures in a democratic society. not believed that the Vice President, acting the intention of. those who gave these powers, in his constitutional role as President of the In one of the leading cases dealing with to insure, as far as human prudence could this problem, the Supreme Court stated: Senate, would deprive the body of guidance . insure, their beneficial execution. This from its presiding officer on so vital and sig­ . could not be done by confiding the choice of "Every succeeding legislature possesses the nift.cant an issue. means to such narrow limits as not to leave same jurisdiction and power with respect to 6 If the motion to take up rules for the it in the power of Congress to adopt any them as its predecessors. The latter have Senate of the 85th Congress is tabled, it will which might be appropriate, and which were the same power of repeal and modification still be open to Senators to raise the ques­ . conducive to the end. This provision is which the former had of enactment, neither tion whether the rules of the ·earlier Con­ made in a Constitution intended to endure more nor less. All occupy, in this respect, a gresses carry over to the Senate of the 85th . for ages to come, and, consequently, to be footing of perfect equality. This must nec­ Congress. After tabling, a Senator might . adapted to the various crises of human af­ essarily be so in the nature of things. It is arise and ask the Vice President to state . fairs. To have prescribed the means by vital to the public welfare that each one under what rules the Senate was proceed­ which Government should, in all future time, should be able at all times to do whatever ing; one side or the other could then appeal execute its powers, would have been to the varying circumstances and present exi­ from the Vice President's rulin{;. Another gencies touching the subject involved may method of accomplishing the same result change, entirely, the character of the instru­ would be for a Senator to make ·a point- of ment, and give it the properties of a legal require. A different result would be fraught order against a particular action of the code. It would have been an unwise attempt with evil." (Newton v. Board of County Senate under the old rules on the ground to provide, by immutable rules, for exigen­ Commissioners of Mahoning County, Ohio that they did not carry over and then either cies which, if foreseen at all, must have been (100 u. s. 548, 559) .) side could appeal from a ruling on that point . seen dimly, and which can be best provided Again, in response to the argument that of order. _· . for as they occur. To have declared that the Congress could not change the use of certain 26 CONGRESSIONAL RECORD - SENATE January 3 public lands, Mr. Justice (later Chief Justice) the Senators meeting on January 3, 1957, be dismissed as pr-inter to the Senate (9 Cong. Stone said: would be bound by any such rule and yet Globe, p. 236). The resolution was heatedly .. By dedicating the lands thus acquired to this is exactly the purpose and· effect of opposed, largely on the authority of the a particular public use, Congress declared a clause 3 of rule XXII. As long as there is established usage under the joint resolu­ public policy, but did not purport to deprive one Senator on his feet and ready to talk, tion of 1819. The opponents argued that a itself of the power to change that policy by there can be no change in the rules of the printer had been elected 10 times under the devoting the lands to other uses. The dedi­ Senate. authority of the resolution and that now, on cation expressed no more than the will of a Or let us take a second case. Suppose the the occasion of the 11th election, the un­ particular Congress which does not impose Senate in 1949 instead of enacting clause 3 constitutionality of the authorizing resolu­ itself upon those to follow in succeeding of rule XXII had adopted a rule that no tion was claimed too late. Senator Allen of years. (See Newton v. Mahoning County civil rights legislation could be considered Ohio, in a statement quoted several times Commissioners (100 U. S. 548, 559); Con­ for 25 years or some other term of years. during the 1953 Senate debates, summed necticut Mutual Life Insurance Co. v. Sprat­ Again no one would dream of arguing that up the position of those contending for the ley (172 U. S. 602, 621) .) " (Reichelderfer v. this rule would pind a majority of the Sen­ binding effect of the action of the previous Quinn (287 U.S. 315, 318) .) ate of the incoming 85th Congress. Yet, Senate in these words: This principle, that no legislature can act again as a practical matter, that is exactly "And, as to the assertion that this was a so as to fetter its successors in expressing the purpose and effect of the action of the new Senate, he denied the fact. • • • public policy and public will, has been re­ Senate of 1949. There was no such thing as a new Senate peatedly expressed. See Town of East Hart­ The Senate of 1949, by clause 3 of rule known to the· Constitution of this Republic. ford v. Hartford Bridge Co. ( 10 How. 511, XXII, tried to bind the future just as much They might as well speak of a new Supreme 533); Ohio Life Insurance and Trust Co. v. as if it had required unanimous consent to Court as of a new Senate." Debolt (16 How 416, 431); Connecticut Mu­ any change in the rules or had provided that Senator Buchanan and others supported tual Life Jn$. Co. v. Spratley (172 U. S. 602, the Senate of no future Congress could take Senator Allen, arguing for the theory of the 621); Toomer v. Witsell (334 U. S. 385, 393 up civil rights legislation. Its efforts to pre-· Senate as a permanent and continuous body (n. 19)). vent the Senate from responding to the will bound by the actions of the Senate of an Article I, section 5 of the Constitution, of the people cannot succeed under the au­ earlier Congress. empowering each House to determine the thorities cited and principles outlined above. Rejecting the appeals of Senators Allen, rules of its proceedings, must be interpreted Rule XXII is substance masquerading as Buchanan and the other Democrats, those in the light of these fundamental democratic procedure. Rules are generally intended to in favor of the dismissal of the printer desig­ principles upon which the Constitution is make business possible, not to prevent its nated the resolution of 1819 as a nullity be­ based; so interpreted, it can only be read to consummation. The purpose of rules ls to fa­ cause it attempted to bind the actions of give each branch of each succeeding Con­ cilitate and provide, by orderly procedures, future Houses of Congress. The argu­ gress the same power of making its own rules what a legislative body desires to do; a rule ment that the Senate of one Congress could that the branches of the first Congress had which defeats the purpose for which rules not bind its successors prevailed; the reso­ when they met in 1789. Any other interpre­ are established is hostile to democratic lution to dismiss the printer was adopted 26 tation would lead to the antidemocratic for­ processes. to 18. mulation that one legislature, whose mem­ Rule XXII ls not a procedural means of In a word, the Senate of 1841 rejected the bers were long since dead and gone, could getting business done; it is a substantive theory that the action of the Senate of one prevent action by the duly-elected and exist­ means of preventing business from being Congress could bind the Senate of a later ing representatives of the people. This, as done. Congress. The Senate rejected this theory in we have seen, cannot be done. It ls a means of the Senate of one Congress the face of the same arguments of perma­ What we have here ls a clear illustration seeking to bind its successors to its own rules nence and continuity that are now being of the evils inherent in the members of a and its own inaction. made by the supporters of rule XXII. In­ legislative body seeking to bind their suc­ It ls a means of keeping the majority of deed, it is significant that Senator Taft, lead­ cessors. What we have here is not simply the Senate and of the people from deter­ ing the battle against the Anderson motion a rule of the past whose incidental effect is mining vital substantive issues . . in 1953, relied heavily upon the quotation to bind the present and the future; what we The answer to this attempt to bind the from Senator Allen in the 1841 debate, de­ have here is a purposeful effort to restrict future lies in article I, section 5, which gives spite the fact that Senator Allen's statement the authority of future Congresses by pre­ the majority of the Senate of the 85th Con­ and his theory had been repudiated by a ma­ venting changes in the rules. Clause 3 of gress, meeting for the first time on January jority of the Senate when it voted to dismiss the Hayden-Wherry resolution of 1949, 3, 1957, the power and the duty to make its the printer. In other words, those who relied which amended rule XXII, provides that own rules, unfettered by efforts of the Senate upon the statements - of Senators Allen, there shall be no cloture whatever on any of an earlier Congress to deprive this ma­ Buchanan, and their colleagues were relying proposal to change the rules of the Senate. jority of its constitutional power and respon­ upon the arguments of the defeated side; it The Senate of the 8lst Congress thus at­ sibility. Manmade rules cannot prejudice was as though, in arguing to a court, a lawyer tempted to fasten its will on the Senate of the explicit constitutional authority in had relied upon a decision that had been all future Congresses; it attempted to per­ article I, section 5. overruled. petuate the present rule XXII for all time. II. The three closest precedents in the his­ B. Precedent 2-Abrogatlon of the Joint This was not a simple effort by the Senate tory of the Senate all support the proposi­ of the 8lst Congress to provide rules for its Rules in 1876 tion that a majority of the Senate of a new The story of the abrogation of the joint own governance, but was rather a deliberate Congress can act to adopt its own rules attempt to foist· those rules upon the Senate rules and their relevance to the present without the obstruction of actions and issue was well stated in the Leadership Con­ of all future Congresses. As Senator RussELL rules of the Senate of an earlier Congress so aptly said of clause 3, "the rules of the ference Brief (99 CONGRESSIONAL RECORD 187). Senate hereafter are not subject to cloture A. Precedent 1-The Dismissal of the Senate and we quote that statement in full: on a motion to proceed to the consideration Printer in 1841 "In the First Congress the Senate and of a change in the standing rules • • • it A joint resolution of 1819 authorized each House adopted joint rules to govern the rela­ [clause 3] permits Senators who have the House of Congress to choose the printer for tionship and necessary business between courage to do so to protect the parliamentary the next succeeding House; it provided the them. Annals of Congress, 57-58, 987. integrity of this body from assault_s that method, rights of pay, and other matters of Thereafter these joint rules of the two Houses will come in the days that lie ahead." . 95 detail. Pursuant to this joint resolution, the were treated as in force and revised and CONGRESSIONAL RECORD 2722. See also 95 CON­ Democratic Senate in 1840 chose as printer amended, although the Senate and House did GRESSIONAL RECORD 2230, 2415, 2582-2584, for the Senate of the following Congress (the not adopt them at the beginning of each 2673-2675. Clause 3 was, in a word, a de­ 27th Cong.) the firm of Blair & Rives. Mr. Congress. liberate effort boldly stated to flout the basic Blair was editor of the Washington Globe, an "In 1865 rule XXII of the joint rules was principle that the members of one Congress intensely partisan newspaper which support­ adopted in an attempt to settle the long­ cannot bind their successors. It cannot be ed the Democratic administration. The standing controversy on the method of that such a strategem has effectively given a Whigs had given notice during the last days counting electoral votes. In 1869 there was a minority of Se'nators a perpetual veto power of the second session of the 26th Congress violent quarrel between the two Houses of over the national legislative process. that they did not consider that the Demo­ Congress over the effect of this particular It might be helpful and clarifying to con­ crats had any constitutional or moral right joint rule. ThiD led to a determination by a sider some other possible courses that the to choose a printer for the next Congress. portion of the Senate to rescind that rule in Senate of the Blst Congress might have fol­ Despite these warnings, the Democratic Sen­ anticipation of any problems over the count­ lowed to perpetuate rule _XXII. Suppose ate awarded the contract for the printing for ing of electoral votes which might arise from that, instead of adopting clause 3 of rule the next Senate to Blair & Rives. the 1876 Presidential election. Haynes, op. XXII, the Hayden-Wherry resolution had Immediately upon the opening of a special cit. supra, page 245 et seq. . The desire of provided that rules of the Senate "may be session of the Whig-controlled 27th Con­ the Senate to eliminate joint rule XXII led amended hereafter only by unanimous con­ gress, Senator Mangum of North Carolina in­ to the end of acquiescence of each new Senate sent." Certainly no one would contend that troduced a resolution that Blair . and Rives in the continuation of the joint rules and the 1957 CONGRESSIONAL RECORD - SENATE 27 Senate in the lst session of the 41st Congress, tion of new rules and not by amendment of cently that he voted to table because he did after 87 years of ·unbroken historical usage, the old ones." not want anything to interfere with the demonstrated its right to adopt new joint c. Precedent ·3-Senator Walsh's Resolution organization of the new administration and rules at the beginning of each new Congress: and Arguments in 1917 the confirmation of the new cabinet. New "0n December 15 Senator Edmunds, of Ver­ York Times, December 12, 1956, page 31. No mont, introduced a resolution to adopt the At the opening of the 65th Congress in such issue is presently before the Senate. joint rules in force at the close of the last March 1917, Senators-OWen of Oklahoma and The effect of the motion to table was well session of Congress. Senator Bayard, of Del­ Walsh of Montana raised the question stated by Senator Lehman at the conclusion aware, asked whether this was necessary" and whether the rules of the preceding Senate of the debate in 1953: Senator Edmunds answered: · - were binding upon the new body. "The adoption of the motion to table the "'That, as a celebrated Englishman said, 18' Senator Owen, on the first business day resolution of the Senator from New Mexico past finding out. The object of this resolu­ of the Senate of the new Congress, March 6, is implicit recognition of the fact that our tion is to ascertain from the proper Commit­ 1917, refused to permit a bill to.be referred main contention that each Senate has- the tee on Rules (which had jurisdiction over the to committee on the ground that committees constitutional right to adopt its own rules were not in existence at the beginning of 7 joint rules as well as the Standing Rules of is sound. No point of order was raised this new Congress, and Senator Walsh sup­ against the Anderson motion. A majority the Senate) whether the joint rules that were ported Sen,ator Owen's contention. in force at the last session of Congress are in of the Senate has laid that motion on the force now without any vote; and if so, upon On March 7, Senator Walsh presented a table. I believe the opposition did not dare what principle of law or joint proceeding; resolution squarely raising the issue whether to raise a point of order because of the fear and if not, of course, to take some steps to the rules carried over from Senate to Sen­ that such a point against the Anderson mo­ ate and presented his now famous argu­ tion would have been overruled. • • • I have some joint rules between the two ment against the old rules being applied to Houses.' (4 CONGRESSIONAL RECORD 220.) believe it to be an incontrovertible fact that the Senate of the new Congress. Said the the Senate has the constitutional right­ "The resolution was referred to the Com­ Senator: "A majority may adopt the rules mittee on Rules, which reported it back even the obligation-to adopt its own rules in the first place. It is preposterous to as­ at the beginning of a new Congress. It is favorably with a technical amendment mak­ sert that they may deny to future majorities ing it a concurrent resolution. · Senator incontrovertible because the right to do so the right to change them." is expressly set forth in the Constitution. It Hamlin argued that the joint rules operated On the evening of March 7, after Senator only by acquiescence ( 4 CONGRESSIONAL REC­ is, moreover, basically inherent in the nature Walsh's resolution and speech, caucuses of of a democratic parliamentary body." (99 ORD, p. 309). Considerable heated discussion both parties voted to approve a change in CONGRESSIONAL RECORD 232.) ensued, in which widely different theories rule xxn to provide for cloture by a two­ as to the effect and validity of the joint thirds vote. The resolution was debated by 111. The Senate of each new Congress makes rules were stated. The one point receiving unanimous consent without ever being re­ a fresh start on all activities; it has a right constant reiteration was that the joint rules ferred to committee and was adoptd on to make a fresh start on its rules had operated acquiescence and must be sub­ March 8, 1917 (76 yeas, 3 nays). Senator In every major activity the Senate recog­ ject to change. Senator Hamlin, as he gave Walsh, who had accomplished his purpose of nizes a constitutional right of the Senate of the committee report, stated it as follows: obtaining the cloture rule he sought, dropped each new Congress to determine both legislil.­ " 'It is only by acquiescence in long years his resolution. tive and executive business anew. All con­ that they have been treated and regarded as sideration of bills,8 resolutions, treaties, and rules, and not ' by an affirmative vote either • • • • • nominations starts at the beginning of each of the House or of the Senate.' ( 4 CoNGRES· Thus, in the three closest precedents, the Congress without reference to or continua­ SIONAL RECORD 309.) Senate, while some of its Members talked continuous body and others talked in a con­ tion of what has taken place in the past; new "Recognition that common consent or trary vein, each time decided against being officers and committee members are elected acquiescence could give validity to that which bound by the dead hand of the past. The in the Senate of each new Congress; when was otherwise doubtful only so long as the printer was dismissed despite the argument acquiescence continued was voiced by Sen­ that this could not be done in the face of zation of the Senate is an inherent right of ator Merriman, who said in the course of this the action of the Senate of the earlier Con­ the Senate, as it is of any sovereign body, and debate (4 CONGRESSIONAL RECORD 431-432): gress; new joint rules were adopted despite all that has taken place up to date has been ii 'It seems, as the venerable Senator from the action and acquiescence of the Senate under that inherent right." 99 CONGRES­ Maine (Mr. Hamlin] stated on a former occa­ of the earlier Congresses; and a new cloture SIONAL RECORD 10. Had the rules actually si~:m, that this matter has passed uniformly rule was adopted by overwhelming agree­ carried over from the previous Congress, the from the beginning of the Government down ment once the argument was made that the election of officers would have taken place to this time without question. The question old rules did not carry over. under these rules, not under inherent right. is now raised, and if today some action . of The action of the Senate in 1953, while 1 Senator Lehman's interpretation of the Congress should be required under the joint admittedly not free from ambiguity, would action of the Senate in 1953 appears to be rules, and a Senator should rise and say "I also -appear to be a favorable precedent. On more accurate than that contained in the object," there would be the end of it. It is January 3, 1953, Senator ANDERSON on be­ Watkins committee report in 1954. Further­ only by common consent that the practice to half of himself and 18 other Senators moved more, the entire discussion of the question of which I have referred has prevailed.' that the Senate take up for immediate con­ continuing body in the Watkins report was "Despite the appeals to history-, long-stand­ sideration the adoption of rules for the Sen­ irrelevant to its conclusion that a Senator ing practice, and the venerability of the joint ate of the 83d Congress. If, in fact, the can properly be censured for actions occur­ rules, the Senate voted to reject a substitute r~les of the Senate of the earlier, Congress ring during a prior term as Senator. The resolution which would have treated the rules had automatically carried over, this motion Senate's power to censure arises from the as in force and provi(led for an amendment was out of order. Yet not a single member necessity of maintaining the dignity and of those rules, and accepted the initial rea­ of the majority opposing the motion to take good repute of the Senate and, therefore, olution which was framed on the theory up the rules raised a point of order against the authority to censure exists as long as that no joint rules existed at the opening of the motion despite the fact that this would a. Senator is a Member of the Senate and the new Congress. ( 4 CONGRESSIONAL REC­ have been the proper parliamentary pro­ exists by virtue of his presence in the Sen­ ORD 519.) cedure if the group had cared to test out the ate. Indeed, the same rule that past con­ "Thus, the Senate passed a concurrent question whether the old rules carried over. duct may be considered for censure and ex­ resolution adopting the joint rules anew for Instead of a point of order, the then major­ pulsion purposes applies in the House (2 the 44th Congress. The House never passed ity leader, Senator Taft, moved to lay the Hinds, Precedents, sec. 1286; House Report this resolution. The Senate, at various times motion on the table, an implicit recognition No. 570, 63d Cong., 2d sess., 1914), whose since then has made an effort to have joint of the fact that the motion had been in rules do not carry over from Congress to rules passed but they never have succeeded. order. Many Senators undoubtedly voted Congress. (Gilfrey, Precedents, 1914, p. P-441; Hinds, for the tabling motion because they sought s As was well said in the brief of the Legis­ secs. 6782-6787.) In most respects the to avoid any direct issue on the rules at that lative Reference Service of the. Library of House and Senate now operate in the same time, even though they would have sup­ Congress, in referring to the fact that no manner as they did under the joint rules on ported a ruling by the Vice President that action in connection with bills carries over some theory of usage. 8 from the Senate of one Congress to the the resolution was in order. Indeed, one Senate of the next Congress: "This necessary "The decision, by vote of the Senate, that such Senator, Senator POTTER, has stated re- practice is not grounded upon a rule only the joint rules were not in effect demon­ but upon article I, section 1, of the Con­ strated that the Joint. rules had existed only 8 It is generally believed that such a rul­ stitution of the United States which vests by acquiescence and that the acquiescence ing would have been forthcoming had a point all legislative power in the Congress. As 'the of even 87 years was i.n no way binding when of order been raised and the Vice President legislative business of one Congress cannot a. majority manifested its will to the con­ given the opportunity to rule. Actually Vice carry over to a. subsequent Congress, a trary. It also showed conclusively that the President Barkley made a partial ruling to fortiori, the legislative business of one part method by which the majority in such a this effect when he stated, in connection of the Congress cannot carry over to that situation manifests its will is by the adop- with the election of officers, that "the organi- part of a subsequent Congress." 28 CONGRESSIONAL RECORD-SENATE January 3 the Senate adjourns, it adjourns sine die. For convenience,_we present the following gress and who have failed in their efforts.11 The slate is wiped clean, the proceedings analysts of the, operations of the United Success has crowned the efforts of those who begin again. States Senate in tabular form: argued against the. use ·of the academic term "continuous body." Analysis of the operations of the United States Senate The essence of the matter. of course, is that the term "continuous" is an adjective resulting from the two-thirds carryover of Senate Senate carries Senators, not a cause of anything. Also, Activity acts anew over from Comment being an adjective, it can be appropriate in each Senate of when considering one aspect of the Senate Congress preceding and inappropriate when considering another. Congress The adjective may, for example, be well used when it is simply meant to convey the fact 1. Introduction of bills______X See Senate Rule XXXIL that two-thirds of the Members of the Senate 2. Committee consideration of X Do. carry over to the succeeding Congress, but, bills. 3. Debate on bills______X Do. equally clear, the adjective "continuing" 4. Voting on bills______X Do. is inappropriate when it is intended to con­ 5. Election of officers ______~ · X While the old officers carry over until new ones are vey the idea of a body which wipes the slate ~~;;~ditt~~ r;;rr~~;;r c~~~e~i~~g:.o v~ ;~~es i~arg~ clean in regard to bills, treaties, nomina­ House, the Clerk carries over until the new one tions, etc. (See point III.) But whether is elected. Obviously this does not prove that or not the term "continuing" is a good or House rules carry over; they do not.I a bad adjective,12 it has not been a success­ 6. Consideration of validity of X Although credentials of a Senator-elect are often senatorial elections. presented to the Senate prior to the beginning of ful adjective when utilized against concrete his term, the validity of the credentials can only proposed action. It cannot prevail over arti­ be considered by the Senate to which he was cle I, section 5 of the Constitution empow­ elected and not before. ering each House "to determine the rules of 7. Consideration of treaties______X See Senate Rule XXXVII (2). 8. Submission and consideration X See Senate Rule XXXVIII (6). its proceedings" nor sanction a device by of nominations. which the Senate of a previous Congress at­ 9. Election of committee members. X See Rule XXV. While old committees carry over tempted to fasten its will upon the future. until new ones are elected, the carryover does not Whether the Senate be continuous or not prove rules carry over. It is a mere convenience. Even in the House, the Clerk carries over until for other purposes, its bylaws (rules) are the new one is elected. Obviously this does not void where they conflict with its charter prove that H ouse rules carry over; they do not. (Constitution). If, by saying that the Sen­ 10. Adjournment______X Adjourns sine die. When Congress ends at noon ate is a continuous body, it is intended to of a particular day, and a special session of the Senate of the new Congress is called, the Senate assert that the rules of yesterday can bind adjourns at noon, and 1 minute afterwards opens the Senate of the Congress of today, the the new session. simple answer is that the first obligation of 11. Rules------· ------x Practice of Senate on rules can be explained as acqui­ escence, which can be ended at the opening of each the Senate is not to its rules but to the Congress by vote of the majority. In order to give people and the Constitution from whence some logic and rationale to the procedw-es oI the its power derives. There cannot be a con­ greatest deliberative assembly in the world, prac­ stitutional obligation of this House to ob­ tice on rules should be explained as acquiescence serve rules whose purpose and effect is to which can be refused ~t opening of the Senate of any new Congress by the adoption of new rules. deprive it of its constitutional right to make its own rules. Actually, parliamentary bodies generally 1 Similarly the fact that the President pro tempore carries over until there is a change of party control of the Senate is no' evidence of rules carryover. On the contrary, t he fac t that an election of a president pro tempore have both continuous and discontinuous as­ automatically follo ws a shift in party control (see 99 Congressional Record 9, Jan. 3, l!J53) is evidence that the pects. The House of Representatives, as we Senate of each new Congress responds to the will of the majority of t ~e Senate.of that Congress. shall show in point V, has continuous as­ The thing that stands out in the above The acquiescence will be ruptured and will pects and yet no one refers to it as a con­ :analysis is that everything . starts afresh end by the motion to take up new rules on tinuous body and no one disputes its right to adopt new rules at the beginning of each except the rules.9 And these, too, can start J anuary 3, 1957. afresh the moment a majority of the Sen­ Congress. By the same token, the Senate has IV. The talk about the Senate 'being a con­ both continuous and discontinuous aspects; ators at the opening of the Senate of a new t inuing body is both m i sleading and irrele­ Congress so wills it and so votes. All that it s limited continuous aspect s do not sup­ vant; whether or not the Senate is properly port the proposition that its rules carry over has happened over the past years is that termed a continuous 'body as an academic there has been acquiescence in the carry­ to the Senate of a new Congress if a ma­ matter does not determine whether a . ma­ jority of the Senators desire to adopt new over of rules of the Senate from Congress jority of the Senate of the 85th Congress 1 rules. to Congress. 0 Carryover of the rules based may adopt its own rules unobstructed by on acquiescence is certainly no precedent the actions and rules of the Senate of for carryover in the absence of acquiescence. ear lier Congresses 11 We have already seen (point II, A) how Absent acquiescence, the rules do not carry Senator Taft and others quoted Senator Allen over anc1 the Senate of the new Congress As we have seen in points II and III, the and his colleagues who were on the losing Senate has not in the past acted as a con­ must adopt new rules or readopt the old. side in the 1841 debate over the dismissal of tinuous body. the printer. It did not act as a continuous body in 1841 12 The passing reference to the Senate as 9 It has been suggested that the very fact when it dismissed the printer chosen by the a continuing body in McGrai n v. Daugherty that the Senate rules referred to in the above Senate of the earlier Congress; it did not act (273 U. S. 135) is much discussed and little analysis provide that Senate bills, resolu­ as a continuous body in 1876 when it adopted analyzed. That case involved an investiga­ tions, treaties, nominations, etc., start afresh new joint rules; and it did not act as a con­ tion into the malfeasance of Attorney Gen­ is evidence that, in the absence of these tinuous body in 1917 when it yielded to the eral Daugherty, which was begun in the 68th rules, Senate activities and business would contrary arguments of Senator Walsh and Congress, and the validity of a subpena to not start afresh. There are several answers adopted the cloture rule be demanded the Lttorney General's brother which had to this suggestion: (i) The rules codified (point II). been issued during the life of that Con­ rather than reversed existing practice. (ii) It does not today act as a continuous body; gress. Before the Supreme Court handed At least with respect to legislative business, it wipes the slate clean on bills, resolutions, down its decision, the 68th Congress had starting afresh is a constitutional necessity. treaties, and nominations at the beginning expired. In considering whether the case See note 8, supra. (111) Senate rule XXXII of each new Congress (point III). had become moot as a ·result of this fact, provides for the continuation of legislative It would be circular reasoning indeed to the Supreme Court pointed out that the business from session to session of the same argue that, despite these actions, the Senate Senate could now revive the committee "by Congress; the existence of this rule hardly is a continuous body because it has acqui­ a motion to that effect" and therefore there proves that the opposite would be true in esced.in the carryover of rules in the past and was a potential need for the information the absence of rule XXXII. No more does is now bound to continue to acquiesce in the sought from Daugherty. All the Court held the existence of the various rules providing carryover of rules because it is a continuous was that the Senate had power to revive a that Senate business and activities start body. committee started in one Congress by action afresh in a new Congress prove that the No one would deny that many Senators t aken by the Senate in the next Congress. opposite would be true in the absence of have talked in terms of a continuous body This decision did not involve the deter­ these rules. and that textbook writers have accepted this mination that the Senate was a continuing 1° Except, of course, in 1917, when Sen­ talk in their academic works. But the talk body, since a truly continuing body would ators Walsh and Owen refused to acquiesce has been largely by those who tried to use not require a new motion to continue the until the Senate adopted the cloture rule the phrase to prevent Senate action depart­ work of the committee. In a word, the Court they sought. ing from that of the Senate of an earlier Con- disproved its own dictum. 1957 CONGRESSIONAL .RECORD-_ SENATE 29 The relevant difference between the House Vice President should not lend his great out in full (see vol. 99, CONGRESSIONAL REC­ and the Senate, which causes the latter to office to that myth, harmless enough as an ORD, pp. 15-24). Unless a major change is be described in the textbooks as a continu­ abstraction, but stultifying and destructive proposed, debate is nonexistent or perfunc­ ous body, is the fact that two-thirds of the of the power of the Senate and of the entire tory and the rules are adopted within a few Senators carry over from Congress to Con­ Congress when used to trap the present in minutes. Even when a controversial change gress. But the fact that two-thirds of the the parliamentary deadfall dug by the Sen­ has been proposed, the debate does not run Senators carry over to the new Congress is ate of a dead Congress. on unduly (see adoption of new rules for the not relevant to the question whether the V. The practice of the House of Representa­ 81st and 82d Congresses at vol. 95, CONGRES­ rules of the Senate of one Congress bind the tives in readopting its rules in each new SIONAL RECORD, p. 10; vol. 97, CONGRESSIONAL Senate of the next Congress. What is rele:. Congress is a relevant precedent for the RECORD, p. 9). During the period prelim­ vant is the fact that one-third of the Sena­ Senate inary to the adoption of the rules, the House tors do not carry over and that, in the course operates under general parliamentary pro­ of a very few years, a majority of the Sena­ As we have noted many times ln this brief, cedure (vol. 21, CONGRESSIONAL RECORD, pp. tors do not carry over; and in the course of article I, section 5 of the Constitution pro­ 740-749; vol. 99, CONGRESSIONAL RECORD, p. a little more than a -generation, no Senator vides that "each House may determine the 24) and under general parliamentary pro­ carries over. rules of its proceedings." Article I, section 1 cedure, debate on the rules can always be provides that "all legislative powers herein The argument for the carryover of the effectively closed by a call for the previous rules seems to come down to this: Because granted shall be vested in a Congress of the question (vol. 99, CONGRESSIONAL RECORD, p. two-thirds of the Senators carry over, the United States, which shall consist of a Sen­ 24) . The experience of the House within the Senate is a continuous body; because the ate and House of Representatives." The last 50 years in adopting rules has proved Senate is a continuous body, the rules carry Constitution contains reference after ref­ conclusively that the necessity for periodic over. Striking the words "contin_uous body" erence to the Congress of which the Senate is a coordinate part. Where any differences adoption every 2 years at the opening of each out of this formula,13 the argument comes new Congress does not delay either the or­ down to this: Since two-thirds of the Sena­ in the conduct or authority of the two ganization of the legislative body or the tors carry over, the rules carry over. But this Houses are intended, they are set forth in prompt consideration of legislative business. is a patent nonsequitur. It assumes that express terms in the Constitution and no the carryover of two-thirds of the Senate difference is expressed in relation to the C. Carryover of House Clerk always carries over a majority in favor of determination of rules. We believe, there­ Perhaps the most striking example of a the rules. The infusion of one-third newly fore, that the Vice President, in arriving at House procedure which at first glance is in­ elected Senators may very well change the his decision, can properly consider the his­ consistent wit h the House's views of itself majority view on rules and it is this majority tory and practice of the House of Representa­ as a discontinuous body is the carryover of view that is determinative under our con­ tives in the adoption of its rules. the Clerk of the old House for the purpose stitutional democracy, not who carries over. A. Brief History of House Practice on Adop­ of opening the new session of Congress in That the new one-third may change the ma­ tion of the Rules the new House. This procedure is described jority on any matter is well illustrated. by The House in .r,he first Congress, as one of at volume 100, CONGRESSIONAL RECORD, No. 188 the shifting of the Senate from party to its first acts, adopted rules of procedure, (see also Cannon's Procedure in House of party over the years. The argument that Representatives, sec. 175). It is now author­ based on those used in the Continental Con­ ized by statute, although, of course, that the two-thirds carryover prevents the new gress (Galloway, Congress at the Crossroads majority from acting on the rules disen­ statute, like the provisions of the Legislative (1946), p. 13; Annals of Congress, p. 121). Reorganization Act, is subject to change by franchises not only the newly elected one­ The House of the second Congress instituted third, but the new majority who are pre­ the House in the exercise of its constitu­ the system, now in use, of adopting the rules tional right to make its own rules. That vented from exercising their powers and of the prior House at the beginning of the duties to make the rules for their own work statute, moreover, merely codifies a long­ session (vol. 3, Annals of Congress, p. 143). standing custom and House rule under which and laws for the people. This practice apparently continued until the House operated prior to the statute. The Furthermore, the initial two-thirds which 1860. However, for the 30-year period from carryover procedure is not limit ed solely to carry over to the next succeeding Congress 1860 to 1890, the House operated •mder a the Clerk, for in case the Clerk is absent will be dissipated in later Congresses until system of acquiescence in past rules, without the duty falls upon the Sergeant at Arms the initial two-thirds is less than a majority necessarily formally adopting new rules at and next on the Doorkeeper (Hinds' Prece­ and finally is gone entirely. The chain does the beginning of each Congress. During this dents, sec. 15) . This well-known and un­ not last forever. To say that the Senate of period the House operated under a resolution questioned procedure offers a further con­ the 85th Congress in 1957 is the same as providing that the 1860 rules of the House vincing demonstration that" necessary pro­ the Senate of the 1st Congress in 1789 be­ should be the rules "of the present and sub­ cedural carryovers, acquiesced in over a long cause 'two-thirds of its members carried over sequent Congresses unless otherwise or­ period of time, do not change the nature of to the Senate of the 2d Congress is to pre­ dered." This rule remained in existence a legislative body and cannot obliterate nor fer romantic form to rational substance and until 1890 and operated as the source of au­ diminish the constitutional and moral right dubious academic theory to practical reality. thority for the rules of the House. of a majority of an American legislative body Some Senators genuinely believe the Sen­ In 1890, there occurred perhaps the most to make its own rules. ate is a continuous body. Others genuinely famous example of a change in basic legisla­ The House also carries over certain other believe that it is not, that it acts as a discon­ tive procedure in our country. Speaker functions. These are listed in sections 6748- tinuous body. Both have the right to their Reed ruled that at the ~eginning of each new 6754 of Hinds• Precedents. Hinds, in sum­ opinions. But when a descriptive term re­ Congress the House operates under gene.-al marizing these carryover procedures, points sulting from nothing more than the carry­ parliamentary law until new rules are out that, although the House becomes over of two-thirds of the Senators is used as adopted. By so ruling, he made it possible "functus officio" at the end of its term, in a reason for preventing the majority of the for the majority of the House to adopt new practice certain rules extend into the new body from determining the Senate's actions, rules which were designed to promote effec­ Congress. But the carryover of the Clerk then they are confusing an adjective with a tive majority exercise of legislative functions and of other items by acquiescence does not reason and an effect with a cause. They are, and to prevent minority obstructionism (vol. deprive the House of its right to make new 21, CONGRESSIONAL RECORD, p. 1347; vol. 99, rules at the opening of a new Congress; no in a word, allowing a myth to conquer and CONGRESSIONAL RECORD, pp. 188, 189). Since rule the Senate of the United States.u The more does past acquiescence of the Senate 1890, House rules have been adopted anew in rules carryover deprive it of the right to by each incoming Congress. The 1890 epi­ make new rules at the opening of a new 13 Here is the argument for the carryover sode demonstrates that acquiescence in the Congress when a majority of the Senators stated as a mathematical equation: Two­ carryover of rules does not prevent the ma­ then elected and present so decide. thirds carryover equals continuous body, jority from acting when they no i.onger deem continuous body equals rules carryover, two­ such acquiescence in the public interest. • • • • thirds carryover equals rules carryover. These practices and procedures of the u Senator O':MAHONEY summed up the ar­ B. Current House Practice on Adoption of House of Representatives are relevant to the gument well on December 2, 1956: "I think the Rules debate concerning the adoption of new rules that the present rule which makes it impos­ Very early in the first sesion of each new by the Senate. Because the House and the sible to apply. cloture to a debate upon a rule Congress, on the first or second day, the Senate operate as a team in a 2-year Con­ is just absurd. The Wherry amendment, ranking Member of the (old) Committee on gress, the Senate in each Congress starts which requires a two-thirds vote of all the Rules offers a resolution adopting rules for anew with respect to legislative business. Members of the Senate was passed long be­ the new Congress (Galloway, Legislative So does the House. (The Senate also starts fore any Member of the Senate had the op­ Procedure in Congress ( 1955) , p. 15) . The anew in each new Congress the business re­ lating to its special functions in connection portunity last to ~o before the people. Sena­ resolution often is phrased in terms of ref­ tor HAYDEN, now the dean of the Senate, was erence to the rules of the preceding Con­ with nominations. and treatymaking.) Both elected in 1956 and the Wherry amendment gress, although the rules are sometimes set organize their activities on a 2-year basis. was adopted, as I recall, in 1949. So there is The sole significant difference between the not a sitting Member of the Senate who has Senate ls bound by the rule-it's not the law two legislative bodies in our Congress is the not been before the people for election since of the Medes and the Persians-it can be duration of the individual Senators' terms the rule was passed, and I don!t believe the changed." and the rotation of one-third of the number 30 CONGRESSIONAL RECORD-_ SENATE January 3 of Senators every 2 years. The historical This detailed specification of the two­ action (point II). We have seen how the materials demonstrate that the longer term thirds requirement in connection with par­ Senate wipes the slate clean at the opening for Senators was established in order to pro­ ticular powers demonstrates that, when Con­ of each new Congress (point III). We have vide a moderating force in Congress, a body gress was to operate other than by majority seen how the Senate has talked continuity which would have stability and the opportu­ rule, it was so instructed by definite language and acted discontinuously (point IV). We nity via its longer term to acquire special­ ln the Constitution. When a document, as hav~ seen 'that the history and practice of ized knowledge in the field of foreign affairs carefully drafted and considered as was the the House of Representatives is a relevant and some independence from the pressures Constitution, enumerates particular excep­ precedent in favor of a ruling that the mo­ of politics. See Prescott, Drafting the Fed­ tions to a general rule, it must be concluded tion to take up rules ·of · the Senate of the eral Constitution, pages 247-260. It is that no other exceptions were intended to 85th Congress is in order (point V.) Finally, equally clear from the debates in the Con­ be made. As the Supreme Court said in we have seen that this is the only method stitutional Convention that there was a firm Addison v. Holly Hill Co. (322 U. S. 607 at to restore the constitutional principle of desire to avoid the establishment of a per­ 617) : "Exemptions made in such detail pre­ majority rule to the Senate of the United manent upper House similar to the House clude their enlargement by implication." States (point VI). of Lords. Thus, the Convention dismissed The framers of the Constitution gave fur­ For all these reasons we urge the Vice without even a vote a suggestion made that ther evidence of their intent that the major­ President, acting as President of the Senate, tenure might be for life. It rejected the ity rule should govern in all except the five to hold the motion to take up rules in order proposal of a 9-year term in favor of the specified instances by the great care with and thus to make possible a return to the shorter 6-year term. The fact that the which they limited the two-thirds require­ constitutional principle of majority rule. Founding Fathers desired to give a measure ment. At least two separate instances are Respectfully submitted by Senators join­ of stability to one branch of the Congress recorded in which the Conventlon rejected ing in motion to take up rules. cannot support any artificial theories abro­ efforts to impose a two-thirds requirement on gating the right of new Sena.tors in each new Iegisla tion: Mr. KNOWLAND. Mr. President-­ Congress to have an equal voice in establish­ 1. On August 29, a motion to limit the na­ Mr. JOHNSON of Texas. I yield to ing the rules of its proceedings. If the tional power over interstate and foreign com­ my friend, the minority leader. rules cannot as a matter of actual fact be merce by a two-thirds provision was made changed at the will of the majority, as in the and rejected. Mr. Sherman, in arguing Mr. KNOWLAND. Mr. President, I House, the Senate will have been converted against the motion, stated that, "To require ask unanimous consent to have printed into that permanent, undemocratic, and more than a majority to decide a question in the body of the RECORD the informa­ irresponsive body which it was the particular was always · embarrassing, as had been ex­ tion contained in Senate Document No. intention of the drafters of the Constitution perienced in cases requiring the votes of nine 4, under the heading "Senate Rules and to prevent. States in Congress" (referring to the Con­ the Senate as a Continuing Body." VI. Majority rule is the basic principle of gress under the Articles of Confederation}. The PRESIDENT pro tempore. Is legislative action prescribed by the Con­ 2. On September 15 another attempt to there objection? stitution of the United States: The ruling fetter Congress' control over navigation by a of the Vice President should be made in two-thirds limitation was unsuccessful. There being no objection, the matter the light of the fact that his decision may (Farrand, Records of the Federal Convention referred to was ordered to be printed in well determine whether constitutiona; ma..­ of 1787.) the RECORD, as follows: jority rule is to be regained in the Senate In addition to the rejected attempts that SENATE RULES AND THE SENATE AS A of the United States were made to limit the majority principle in CONTINUING BODY connection with substantive powers, th(. mo­ Majority rule has not existed in the Senate I of the United States for many years. The tion in the Constitutional Convention to filibuster and the threat of filibuster have raise the quorum provision (art. I, sec. 5) .The right or privilege of extended debate prevented the majority from carrying out its from a majority to two-thirds was over.. in the United States Senate has been a sub-. will in the Senate and thus in the Congress. whelmingly · put down. Some members of ject of recurring controversy. Almost from This is in direct opposition to the letter and the Convention even feared that a majority the Senate's beginnings the numerous efforts spirit of the Constitution which established was too large a number. George Morria to impose limitations have not been to ef­ majority rule as the basio principle of our pointed out that "the secession of a small fective.1 The most. recent positive action to number" might "in the national coun­ curb debate which was taken in 1949 per­ Government, and the basis of the enacting 2 power of the Houses of Congress. The Su­ cils • • • be fatal," and this fear of his was mitted, for the first time, the invocation of preme Court has aptly described the principle concurred in by a number of others who cloture in all cases except that of a motion spoke on the subject (Prescott, Drafting the to take up a change in the Senate rules·.8 • of majority rule as one "sanctioned by our Federal Constitution, p. 425 et seq.). Ac­ Critics of this 1949 amendment attack it governmental practices, by business pro­ cordingly, the Congress was given power to on the grounds that ( 1) it may be invoked cedure, and by the whole philosophy of dem­ compel the attendance of absent members so only by affirmative vote of not less than 64 ocratic institutions." (N. L. R. B. v. A. J. that a majority could be gathered together Senators; and (2) that the rules themselves Tower Co., 329 U. S. 324, 331.) and the business of the congress dispatched. remain subject to amendment by simple ma­ The pervasive need for majority rule was Majority rule is the constitutional measure jority vote of those present and voting, while recognized at the Constitutional Convention. for legislative action. As Senator Thomas, a motion to take up an amendment to· the Alexander Hamilton, writing in the Federal­ of Colorado, pointed out in debating the rules can be· filibustered indefinitely.~ ist, No. XXII, strongly emphasized this need cloture rule in 1917, "majority rUle is an Many supporters of civil-rights measures, as follows: .. To give a minority a negative essential principle in American Government" such as FEPC, antilynch bills, anti-poll-tax upon a majority (wl_lich is always the caf?e (55 CONGRESSIONAL RECORD, 33) . . Yet this bills, claim that such measures never can be where more than a majority is requisite to fundamental constitutional principle can a decision) is, in its tendency, to subject only be reestablished in the United States i For a detailed study of the subject, see the sense of the greater number to that of Senate through the route of a motion to the lesser. • • • If a pertinacious minority Limitation of Debate in the United States take up rules at the opening of the Senate Senate, by Dr. George B. Galloway, Public Af­ can control the opinion of a majority, re­ of a new Congress. If this route is blocked specting the best mode of conducting it, the fairs Bulletin No. 64, Library of Congress. by a ruling of the Vice President or other­ This was incorporated in the Hearings on majority, in order that something may be wise, there will be no way to carry out th~s done, must conform to the vie,,rs of the Limitation of Debate in the Senate, Commit­ basic principle of the Constitution and to tee on Rules and Administration, October minority; and thus the sense of the smaller implement the Supreme Court's statement number will overrule that of the greater, and 1951, pp. 46-54; see also, Haynes, The Senate that a House of Congress "may not by its of the United States, pp. 394 et seq. give a tone to national proceedings." rules ignore constitutional restraints" 2 The 1917 amendment to rule XXII pro­ The authors of the Constitution prescribed (United States v. Ballin, 144 U. S. 1, 5). majority rule as the rule for congressional vided for cloture in the case of any pending action by expressly enumerating all the in­ VII. Conclusion measure. There nas been much support for stances in which more than a majority vote Article I, section 5, of the Constitution the claim that this was intended to be un­ was to be required. These specia1 cases were gives the Senate of each succeeding Con­ limited in scope and to include, for example, limited to five. There are two-thirds require­ gress, just as it gives the House of each suc­ a motion to take up a matter. But this con­ ceeding Congress, the power to make its own tention has not had majority support in the ments in connection with (1) the power Senate since it first was challenged in the of Congress to override the veto, (2) sena­ rules and this power exists without regard to anything that the Senate of an earlier Senate in 1919. See debates in the Senate, torial ratification of treaties, (3) the initia­ Congress may have done (point I). We have March 1949 ,_ preceding the overruling by the tion by Congress of proposals to amend the seen how the fundamental principles cf Senate of Vice President Barkley on this is­ Constitution, ( 4) the impeachment power, democratic government require that the ma­ sue; also Haynes, The Senate of the United and (5) the expulsion of Members of Con­ jority of the Senators of each new Congress States, pp. 409-415. · gress. In these rare instances, where it was have the right to act unfetter~d by an earlier a This amendment has been referred to as felt necessary to make exceptions to majority majority (point I). We have seen how the the Wherry-Hayden amendment. For the rule, the Constitution expressly said so (art. Senate has refused to be bound by the a6- complete text of rule XXII in its present I, sec. 7; art. II, sec. 2; art. V; art. I, sec. 3; tion of the Senate of earlier Congresses form see appendix I, annexed hereto. art. I, sec. 5) • whenever its own majority desired to take 'See sec. 3, rule XXII. 1957 CONGRESSIONAL RECORD-- SENATE 31 passed in the Senate so long as rule XXII re­ order since, it will be contended, there are excuse for the gag rule which subsection 3 mains in its present form, because of the op..: existing rules which can only be amended imposes. portunities the rule still affords for filibuster as provided through the present rules. "Many compelling arguments were present­ by a minority.5 There have also be--n many "(3) The President of the Senate must rule ed to the committee in support of majority other measures which have been successfully on this point of order. cloture at any and all times. The hearings blocked, by extended debate of a minority, "(4) His ruling, if he rejects the point of have been printed and we recommend their during the course of the Senate's history .0 order,1 is subject to an appeal. Under general study to our colleagues in the Senate." During the hearings in O<:tober 1951 before parliamentary rules, which would be in effect Various newspaper stories and articles have a subcommittee of the Senate Committee on during the period prior to the adoption of appeared in recent weeks stating the possi­ Rules and Administration, various proposals specific rules, the appeal can be debated, bility that when the 83d Congress assembles were considered relative to limitation of de­ although most parliamentary authorities in January 1953, some Senator will rise on bate in the Senate beyond that now pro­ limit the debate to one speech by each the Senate :floor "almost as soon as the vided in Senate Rule XXII. These included person. Chamber is convened and move adoption of proposals to achieve cloture by vote of a con­ all the rules that governed the Senate of the stitutional majority of the Senate (S: Res. 52, ••1 If the Vice President should support the preceding Congress except rule XXII." 14 by Ives and Lodge) ; by vote of two-thirds point of order, thereby declaring rule XXII This discussion deals with a consideration of the Senators present and voting (S. Res. adopted by the 81st Senate binding upon the of the possibilities suggested from the fore­ 203, by Wherry); by majority vote of those 83d Senate, there would be the possibility going that may thus be presented shortly present and voting (S. Res. 41, by MORSE and of unlimited debate on the appeal, as Senator after the Senate convenes in January. Could HUMPHREY); by vote of two-thirds of the MoNRoNEY pointed out in the hearings O<:to­ it mean, for example, an end to filibustering Senators present and voting to limit debate ber 3. Such a ruling, together with a fili­ in the Senate by a simple majority vote, by in 48 hours in case of "grave national emer­ buster, could prevent the majority from ex­ vote of 25 Senators present and voting? 15 gency,'' and in 15 days "on any question pressing its will. For practical purposes, the The issue of whether the Senate is a con­ whatsoever," by vote of a majority of the 83d Sanate would be deprived of the rule­ tinuing body, or whether its rules are con­ Senators present and voting (S. Res. 105, by making power assigned to it by art. I, sec. 5 tinuing, obviously is subject to being strongly Lehman, Murray, Magnuson, Neely, Douglas, of the Constitution. (See pp. 19-20 of our colored by the issues involved in any con­ Humphrey, Green, Benton, Pastore, McMa­ brief.) sideration of the pros and cons of extended hon, and Kilgore) .1 "Should the minority group attempt to debate and efforts to curb it--the civil rights A novel angle on changing Senate rules turn the debate on the appeal from the ruling issue, the individual prerogatives of Senators, of the Chair into a filibuster, the debate can and the like. So far as practicable, however, At these hearings where many witnesses, this discussion will be limited to the con­ including a number of Senators, testified, be cut off either by a motion to lay on the table or by moving the previous question. A stitutional and policy questions directed to an interesting and somewhat different ap­ the continuity of the Senate and of its rules, proach was suggested by Walter Reuther. majority vote in favor of the motion to table would operate to afilrm the Chair's ruling. A from Congress t-0 Congress. These questions "It is our contention," he told the com­ wlll be considered within the framework of mittee, "that the Senate is not a continuing majority vote in favor of the call for the pre­ vious question would permit an immediate the following issues: body and therefore the 82d, the Senate that I. Was the Senate established as or in­ sits as part of the 82d Congress cannot adopt vote on the appeal. " ( 5) If the ruling of the Chair is sustained tended to be a continuing body? What does a set of rules which binds future Senate the Constitution provide? What did the bodies, because if the 82d session of the Sen­ by a majority vote, the Senate will be able·to adopt rules for the Senate of the 83d Con­ Founding Fathers say? ate can adopt a set of rules that go on in II. Even if issue I is answered in the af­ perpetuity, it means that they are exercising gress by regular parliamentary procedure of majority vote. If a filibuster should be at­ firmative can the Senate, notwithstanding, an authority which they deny to a future determine it is not to have continuing rules? 8 tempted at this point, it can again be dealt Senate; and they can't dot.hat." He further III. Should the Senate so determine? stated: "Now, when the Senate meets in with by the parliamentary device of moving January 1953, a Senator can stand up and the previous question outlined in step 4 Preliminarily, this much can be stated: say, 'Mr. Chairman, I would like to submit above. It is significant that the Speaker of That precedent overwhelmingly is against the the following set of rules for adoption to the House, at the time of an attempt to pre­ propositions (a) that the Senate is not a govern the work and the proceedings of this vent the adoption of rules by repeated dila­ continuing. body and (b) that its rules are not continuing.16 body.'" I tory motions, ruled that he would refuse to In a supplemental written statement,10 Mr. recognize Members attempting these delaying n. WAS THE SENATE ESTABLISHED AS OR INTENDED Reuther spelled out his suggestion in detail, tactics. as they were interfering with the con­ TO BE A CONTINUING BODY? as follows: stitutional right of the House to determine its rules" (Cannon, Precedents, vol. 5, secs. (a) Constitutional provisions "Proposal No. 1: When the new Senate of 5706, 5707). Article I, section 3, provides for rotation the 83d Congress convenes January 3, 1953, Mr. Reuther also submitted a brief in sup­ of one-third of the Senate every 2 years.17 the following procedure can be adopted: port of his claims that the Senate is not a "(l) After the credentials have been sub­ continuing body; that its rules are not con­ u Quoted from an article entitled "Battle mitted and accepted, a Senator can rise and tinuing, and therefore new rules may be of Filibuster: New Round Opens," New York move the adoption of the Rules of the Senate adopted (or old rules amended, rule XXII to Times magazine, September 14, 1952; see also of the 83d Congress which he will then sub­ the contrary notwithstanding) by a simple New York Times news stories and articles mit to the body. These rules may include a majority vote of the Senate.11 dated July 16, August 12, August 14, Septem­ new rule XXII providing for limitation of Statements made by Senators Benton, Leh­ ber 3, 1952, on the same subject matter. debate by majority vote. He may state, in man, and Humphrey during the course of the 1G Under art. I, sec. 5 of the Constitution, making his submission, that there are no hearings appear to be in agreement with a majority of the Senate constitutes a quo­ existing rules of the Senate because the rules these claims.12 In the Senate report to Senate rum to do business. of one Senate cannot bind a succeeding Sen­ Resolution 203 13 are found the views of Sen­ 1e Mr. Reuther expressly conceded the ate. Also, he may point out that, until ator Benton and Senator GREEN, as follows: precedent, which is more fully discussed adoption of rules, there is no committee to "Subsection 3 of rule XXII should not be hereinafter, when he stated in the hearings, which his motion can be referred. allowed to bind this Senate and all future op. cit. supra, note 1, at p. 131: "Now you "(2) It can be expected that a point of Senates by perpetuating the right to filibus­ may choose to follow precedent, but there order will be made that the motion is out of ter against any motion to change any rule of ·ts a fundamental difference between your the Senate. Such a right, written into the willingness to follow preceC.ent and the con­ Ii Webster defines one who filibusters as rules only in 1949 and in spite of the warning stitutional compulsion. We are not raising follows: "A member of a legislative or delib­ and protest of Vice President Barkley, violates your right to choose to follow precedent. erative body who, in opposition to the pro­ the great tradition which the Senate has al­ We are raising the question of constitution­ posed action of the majority, obstructs or ways followed. We deny the right of any past ality. Are you compelled? According to our prevents action by the extreme use of dila­ Senate so to tie the hands of this or any research, you are not." 17 The pertinent language is as follows: tory tactics, such as speaking merely to con­ future Senate. The Senate by acquiescence sume time." "The Senate of the United States shall be ° For an incomplete list of these measures, accepts the rules of each previous Senate as composed of 2 Senators from each State see hearings, op. cit. supra, note l, at p. 60. the rules of the current Senate, but nowhere [chosen by the legislature] thereof, for 6 7 Both the Morse and the Lehman pro­ in such a procedure can there be found any years; and each Senator shall have 1 vote.• posals provided also for repeal of the present "Immediately after they shall be assem­ sec. 3, rule XXII, which would thereby make 11 Hearings, pp. 147-160. bled in consequence of the first election, they the rule itself subject to cloture. 12 Hearings, pp. 15, 19, 29, 264, 269. ·shall be divided as equally as may be into s Hearings, p. 130. ia S. Rept. No. 1256, 82d Cong., p. 13. The three classes. The seats of the Senators of •Hearings, p. 138. Wherry resolution, S. Res. 203; providing foie. the first class shall be vacated at the expira­ 10 Hearings, pp. 282-285. This was entitled, cloture by vote of two-thirds of the Senate tion of the second year, of the second class "Supplemental Written Statement Setting Members present and voting, was reported at' the expiration of the :fourth year, and of Forth Two Proposals for Breaking Filibusters from committee on March 5, 1952, but died on the third class at the expiration of the sixth by a Simple Majority Vote.'' the Senate Calendar. year, so that one-third may be chosen every 32 CONGRESSIONAL RECORD - SENATE January 3 This provision has been_ compared with the (B) The intent of -the· Founding Fathers "I add, as a sixth defect, the :want in some requirement in the Constitution for biennial The Constitutional Convention of 1787 important cases of a. due responsibility in election of all House Members. Unlike the had before it various ·alternatives with re­ the Government to the people, arising from case of the House of Representatives, the spect to the powers,.. duties,. and _composition that frequency of elections, which in other plan of rotation every 2 years has resulted, of the Senate, as well as the>manner of selec~ cases produces this responsibility. The re-. ever since the Senate organized for the first tion and tenure· of -office of its Members. mark will, perhaps, appear not only new, time in 1789, in there always being more The agreements which were finally reached but paradoxical. It must nevertheless be ac­ than a majority of sitting Senators. The on these alternatives appear in. varying de­ knowledged, when explained, to be as un­ Senate has thus always teen able "to do grees to have a general bearing on the sub., deniable as it is important. business," since it always has had a quorum ject of this discussion. , These de_tails were .. Responsibility, in order to be. reasonable, as required by the Constitution.18 expanded up01;1 at length by the, authors of must be limited to objects within the power Other provisions of the Constitution cited The Federalist, Messrs: Hamilton, Madison, of the responsible party; and in order t o to establish that the Senate is an always or­ and Jay. Typical of their comments are the be effectual, must relate to operations of that ganized body include (a) those dealing with following: power, of which a ready and proper judgment t he office of the Vice President and the Presi­ In The Federalist, No. 62, James Madison can be formed by the constituents. The ob­ dent pro tempore; 19 (b) those establishing (or Alexander Hamilton) wrote: jects of government may be divided into two the Senate's executive fur.i.ctions, as distin­ "The necessity of a Senate is not less indi~ general, classes.: the one depending on meas­ guished from its legislative functions; 20 (c) cated by the propensity of all single and ures which have singly an immediate ~nd the power of the President "on extraordinary numerous assemblies, to yield to the impulse sensible operation; the other depending on occasions, (to] convene both Houses, or of sudden and violent passions, and to be se .. a succession of well-chosen and well-con-, either of them * ~ *";21 (d) the limiting duced by factions leaders into intemperate nected ine.asures, which have a gradual and proviso in article V (which deals with amend­ and pernicious resolutions. Examples on this perhaps unobserved operation. The impor­ ing the Constitution), as follows: " * • * no subject might be cited without number; and tance of the latter description to the collec­ State, without its consent, shall be deprived from proceedings within the United States, as tive and permanent welfare of every country, of its equal suffrage in the Senate." 22 well as from the history of other nations. needs no explanation. And yet it is evident, But a position that will not be contradicted, that an assembly elected for so short a term second year; [and if vacancies happen by need not be proved. All that need be re­ as to be unable to provide more than one or resignation, or otherwise, during ·the recess marked, is, that a body which is to correct two links in a chain of measures, on which of the legislature of any State, the executive :this infirmity, ought itself to be free fr.om it, the general welfare may essentially depend, thereof may make temporary appointments and consequently ought to be less numerous. ought not to be answerable for the final re­ until the next meeting of the legislature, It ought, moreover, to possess great firmness, sult any more than a steward or tenant, en­ which shall then fill such vacancies].**" and consequently ought to hold its authority gaged for one year, could be justly made to *The part included in heavy brackets was by a tenure of considerable duration. * • * answer for plans or improvements which changed by clause 1 of the 17th amendment "The mutability in the public councils, could not be accomplished in less than half to the Constitution, providing for popular arising from a rapid succession of new mem­ a dozen yea::-s. Nor is it possible for the peo­ election of Senators. bers, however qualified they may be, points ple to estimate the share of influence which **The part included in heavy brackets was out, in the strongest manner, the necessity of their annual assemblies may respectively changed by clause 2 of the 17th amendment some stable institution in the Government. have on events resulting from the mixed to the Constitution. Every new election in the States, is found to 'transactions of several years. It is suf­ 18 Art. I, sec. 5, provides, "* * * a majority change one-half of the Representatives. ·ficiently difficult, to preserve a personal re­ of each (House]' shall-constitute a-quorum to From this change of men must proceed a sponsibility in the members of a numerous do business." See Cushing, Law and Prac­ change of opinions; and from a change of body, for such a:cts of the body as have an tice of Legislative Assemblies, p. 272. opinions, a. change of measures. But a con­ immediate, detached, and palpable operation on its consti tuen ts. 10 The fourth and fifth clauses of art. I, tinual change even of good measures is in­ sec. 3, are as follows: consistent with every rule of prudence, and "The proper remedy for this defect must "The Vice President of the United States every prospect of success. The remark is veri­ be an additional body in the legislative de­ shall be President of the Senate, * * *. fied in private life, and becomes more just, as partment, which having sufficient perma­ "The Senate shall chuse their other Offi­ well as more important in national transac­ nency to provide for such objects as require cers, and also a President pro tempore, in the tions. * * * a continued attention, and a train of meas­ absence of the Vice President, or when he "To trace the mischievous effects of a mu­ ures, may be justly and effectually answer­ shall exercise the omce of the President of table government, would fill a volume. I will able for the attainment of those objects. the United States." See appendix III, at­ hint a few only, each of which will be per­ The Federalist, No. 64, by John Jay, con­ tached hereto, pp. 5-10. ceived to be a source _of innumerable others. cerns itself with the Senate and treaty­ 20 These provisions are to be found in art. "In the first place, it forfeits the respect making. The following, on the permanency II, sec. 2, clause 2, which reads as follows: and confidence of other nations, and all the of the Senate. is quoted from that paper: "He shall have Power, by and with the Ad­ advantages connected with national char­ "Although the absolute necessity of sys­ vice and CoDBent of the Senate, to make acter. * • • The internal effects of a muta­ tem, in the conduct of' any business, is Treaties, provided two-thirds of the Senators ble policy are still more calamitous.. It poi­ universally known and acknowledged, yet present concur; and he shall nominate, and sons the blessings of liberty itself." the high importance of it in national affairs, by and with the Advice and Consent of the Also in the Federalist, No. 63, Madison or has not yet become sufficiently impressed on Senate, shall appoint Ambassadors. other Hamilton wrote as follows: the public mind. They who wish to commit public Ministers and Consuls, Judges of the the power under consideration to a popular "Yet however requisite a sense of national assembly, composed of members constantly supreme Court, and all other Officers of the character may be, it is evident that it can coming and going in quick succession, seem United States, whose Appointments are not never be sufficiently possessed by a numerous herein otherwise provided for, and which not to recollect, that such a body must e.nd changeable body. It can only be found necessarily be inadequate to the attainment shall be established by Law; but the Con­ in a number so small that a sensible degree gress may by Law vest the Appointment of of those great objects, which require to be of the praise and blame of public measures steadily contemplated in all their relations such inferior Officers, as they think proper, may be the portion of each individual; or in in the President alone, in the Courts of Law, and circumstances and which can only be an assembly so durably invested with public approached and achieved by measures, which or in the Heads of Departments." trust, that the pride and consequence of its M Art. II, sec. 3. The Congressional Direc­ not only talents, but also exact information, tory for January 1952, p. 270, lists 46 special members may be sensibly incorporated with and often much time, are necessary to con­ sessions of the Senate, between 1791 and the· reputation and prosperity of the com­ cert and to execute. It was wise therefore, . 1933. See Haynes, II, 1021-1022, op. cit. munity. The half-yearly Representatives of in convention to provide, not only that the .supra, note 1, for his comments, "What the Rhode Island, would probably have been little _power of making treaties should be com· Senate Can Do Alone." affected in their deliberations on the iniqui­ mitted to able and honest men, but also that 22 "The most conspicuous, and what was tous measures of that State, by arguments they should continue in place a. sufficient at one time deemed the most important drawn from the light in which such meas­ time to become perfectly acquainted with feature of the Senate, is that it represents ures would be viewed by foreign nations, or our national concerns, and to form and in­ the several States of the Union as separate even by the· sister States; whilst it can troduce. a. system for the management of scarcely be doubted that if the concurrence commonwealths, and is thus an essential them~ The duration prescribed is such a.s part of the Federal scheme. Every State, be of a selected and stable body had been neces­ will give them an opportunity of greatly it as great as New York or as small as Dela­ sary, a regard to national character alone extending their political information, and of ware, sends two Senators, no more and no would have prevented the calamities under rendering their accumulating experience less. This arrangement was long resisted by which that misguided people is now laboring. more and more beneficial to their country. the delegates of the larger States in the Con­ Nor has the convention discovered less pru­ vention of 1787, and ultimately adopted be­ State 'can be deprived of it.s equal suffrage dence, in providing for the frequent elec­ cause nothing less would reassure the small­ in the Senate without its consent,' a consent tions 0:1' Senators in such a way, as to obviate er States, who feared to.. be overborne by the ;most unlikely ta ·be ·gi~en." · Bryce, The : the inconvenience of . periodically trans- larger. It is now the provision of the Con­ American Commonwealth, 2d edition (1891), ferring those great affairs entirely to new stitution most diffi.cult to change, for no pp. 93-94. men: for by leaving a considerable residue 1957 CONGRESSIONAL RECORD - SENATE 33 of the old · ones ·in place; uniformity and ing on t'he new· ·House, ·inasmuch as such the passions of the day in the-elaborate -pro· order, as well as a constant succession of restraint would impair the con-stitu..tional visions for calling to order any Senator who offic.ial information, will be preserved." right of this .House to 'determine the rules in speaking or otherwise should transgress In The Federalist, No. 59, Alexander Ham..' of its. proceedings.' Hence at the opening the rules of 'the-Senate. ·The last of the rules 1lton commented on the regulation of elec,.. of each. Congress the House faces the task set forth·- the formalities attending the sus­ tions of both Senators and Representatives. of adopting the rules by which it is to be pension, modification, or amendment of the He stated: · governed. This may_ be disposed of-as it rules. - The revision of 1884 has met the "It may be easily discerned also, that the usually is-by -the perfunctory adoption of Senate's wishes so well that in more than National Government would run a much the rules effective during the preceding Con­ twoscore years no general revision of the greater risk, from a power in the State leg· gress. On the other hand, t.his biennially rules has been found necessary (pp. 340- 2 lslatures over the elections of ·its house of rep~ recurring task may start a long and bitter 342) .'' ' resentatives, than from their power of ap· struggle. Thus, at the opening of the 68th pointing the members of its senate: The Congress (December 1923), a group of in· (a) The proposal to "adopt" Senate rules for Senators are to be chosen for the period of surgents blocked the organization of the the Eighty-third Congress 6 years; there is to be a rotation, by· which House until they had extorted a pledge that The Reuther proposal contemplates that the sea ts of a third part of them are to be the question of radical change of certain after acceptance of credentials of new Sena­ vacated, and replenished every 2 years; and rules should promptly be brought to open tors on January 3, 1953, a motion will be no State is to be entitled to more than 2 debate and decisive vote; and several changes made to adopt Senate rules for the 83d Senators; a quorum of the body is to con­ of moment were their temporary gain from Congress, such rules to "include a new rule sist of 16 Members. The joint result of these this contest." XXII providing for limitation of debate by circumstances would be, that a temporary "The Senate, on the other hand, ls a con­ majority vote." combination of a few States, to intermit the tinuing body. 1 It first effected its organi­ A point of order could be anticipated, on a ppointment of Senators, could neither an­ zation April 6, 1789, and there never since the ground that the motion is out of order. nul the existence, nor impair the activity of h as been a time ·when the Senate as an or· since there are existing rules governing pro­ the body; and it is not from a general and ganized body has not been available, at the cedure in the Senate. The Vice President permanent combination of the States, that President's summons or in accordance with must then rule on the point of order. we can have anything to fear. The first the terms of its own adjournment, for the If he overrules the point of order. an ap· ;might proceed from sinister designs in the transaction of public business. The first peal from that ruling, it is contended, would leading members of a few of the State legis­ rules, adopted only 10 days aft,er the Senate be under general parliamentary rules. These latures; the last would suppose a fixed and ·came into being, have continued in force "would be in effect during the period prior rooted disaffection in the great body of the without reaffirmation until amended or to the adoption of specific rules." Moreover, people; which will either never exist at all abolished by the Senate. In contrast with while the appeal "can be debated • • • or will, in all probability, proceed from an notable revisions of the House rules,2 the most parliamentary authorities limit the de· experience of the inaptitude of the General few Senate revisions have been significant of bate to one speech by each person.'' The Government to the advancement of their no urgent spirit of revolt or reform; they have "parliamentary authorities" are not cited, happiness in which event no good citizen been authorized when the accumulation of -however.25 could desire its continuance. ·changes through a long series of years made If the Vice President sustains the point . "But with regard to 'the Federal House of a new codification desirable.3 Thus, by the of order, an appeal could be taken by pro­ ,Representatives, there is intended to be a revision of March 26, 1806, the list grew fro::n ponents of the Reuther proposal. Whether general election of Members once in 2 years. the 20 of 1789 to 40, the more impor· under present Senate rules or under general parliamentary rules, such an appeal would If the State legislatures were to be invested tant additions dealing with the regulation of with an exclusive power of regulating these Senate action upon nominations and treaties. ·be debatable. elections, every period of making them would The 1820 revision brought the number up to It is possible that a secondary issue might be a delicate crisis in the national situation', 45, but most of the new rules were of be raised at this point, viz, the issue over which might issue in a dissolution of the trifling importance, the changes being mostly whether the appeal itself is debatable under Union, if the leaders of a few of the most for the purpose of more systematic arrange­ general parliamentary rules or under the Sen· important States should have entered into a :ment and combination of the substance of ate rules. If the Vice President sustains previous conspiracy to prevent an election." the old rules. The most significant addition .the point of order on the main question, he was rule XXX, formally bringing into the can be expected to rule on the secondary Attention is also directed to a compilation ·code of rules the provisions as to the choice of issue that the Senate rules apply while the of early source material related to the divi· standing committees which had been adopted main question is being debated. Under both sion of Senators into classes. This compi· 4 years earlier. In 1868, the revision not only Senate rule XX 26 and general parliamentary lation, which is annexed hereto as appendix ·gathered up the modifications in the rules ·rules,27 his ruling on the secondary issue II, was prepared by the Library. of Congress _that had been accumulating for nearly half and contains extracts from Elliot's Debates a century, but it embodied some provisions 4 and other contemporaneous sources. : The Legislative Reorganization Act of that evidenced the strain of the war and of .1946 made no change in parliamentary as III. CAN THE SENATE DETERMINE IT IS NOT TO the Reconstruction problems. The number -distinguished from organizational, rules of HAVE CONTINUING RULES? ·of rules increased to 53, the maximum either the House or the Senate, due to lack (a) 1:he rules of the Senate ·reached in any general revision. Among the ·of authority of the joint committee which -more important changes were those intended ·considered the general subject to make rec· Article I, section 5 of the Constitution pro­ to prevent general legislation under the guise .ommendations for such rule changes. vides: "Each House may determine the rules of amendments to general appropriation bills Although there have been six impeach· of its proceedings. • • *" ·'I'hus, the Senate (XXX}; to regulate special orders (XXXI); ment trials (for a. complete list see Con· is the sole judge o~ its own rules,2:1 and a ma­ and to ·provide for more careful handling of gressional Directory) since that of President ·jority at any time can change its rules or nominations (XLIII). There is an echo of adopt new ones, whether at the beginning of -Andrew Johnson in 1868, the Senate rules a session of Congress or· at any other time on impeachment have undergone no change "1 Walsh (Montana) has argued that the since that trial. See Haynes, II, 847, op. cit., when it is sitting. But what about the mi­ Senate rules are equally evanescent with -nority's power to block a vote on this issue? supra, note 1. With respect to joint Senate· ·those of the House. See resolution and House rules, see appendix III, document en· In P,is book, the ~enate _of :the United .speech of March 7, .1917. Root strongly set .titled, "The Senate as a Continuing Body," States, Haynes commented on the rules of the forth the Senate 'as a . continuing body' pp. 10-12. House and the Senate, as follows: · February 15, 1915, CONGRESSIONAL RECORD, p. '3793. - . . - .25 Hearings, p. 283. "Since in each Congress the House is 26 Senate rule XX reads as follows: "1. A newly elected, it has been held that the rules " 2 De Alva S. Alexander, History and Pro· . questiop. of order may be raised at any stage of the House in the. precedin'g Congress can·­ ~ cedure of the House of Representatives, chs. . of the proceedings, except when the Senate . not without specific adoption be held bind· IX, X, and XI. is dividing, and, unless submitted to the " 3 .Codificatfon of Senate rules: . Senate, shall be decided by the Presiding 23 There is no known judicial·precedent in. ·------­ Officer without debate, subject to an appeal validating a rule :of either Senate or House. Num- Senate to _the Senate. When an appeal is taken, In at least one' case which reached the Su· 'n ate Reference ber of mem- . any subsequent question of order which may preme Court the validity of a House rule rules bersbip arise before the de~ision of such appeal shall (concerning quorums) was challenged, but , be decided by the, Presiding Officer without the rule was upheld (U.. S. v. Ballin, 144 U.S. Apr. 16-18, 1789.. ••• Senate JourhaL 20 20 debate; and every appeal 1;herefrom shall be 1 ( 1892) ) . Th:e 'following dictum in that · Mar. 26, 1806 ______Ibid:, pp. 65-66.- 40 34 _decid .ed at once, and without debate; and any case, by Mr. .Justice Brewer, may be of some Jan. 3, 1820------'--- Ibid., pp. 61-69 __ 45 46 . appeal may be laid on the table without I Mar. 25, 1868 _____. __ . interest, however: "[Neither House may]· by Ibid., pp. 34o-47. 53 68 , prejud~ce to the pending proposition, and . its rules ignore constitutional restraints cir Jan. 11, .1884- -~ ----- Ibid., pp. ~ 145-6()_ 40 76 thereupon shall be held as affirming the de· . violate. fundamental · rights and there must . cision of th·e Preslding Officer. 2. The Pre­ . be a reasonable. relation bet.ween ~e JnOde or _To_ the origi_nal list o:t; i\pril_16, _1 ,7&Q, 2 days - si_ding qfficer. m,ay submit any question of method of proceeding established by the rule later by vote there was 'subjoined to the order for the decision of the Senate." and the result which is sought to be at. standing orders of the Senate' a twentieth 27 Robert's Rules of ·Order, Revised (1951), tained." · rule. Senate Journal 16.'• sec. 21, p. 78. CIII-3 34 CONGRESSIONAL RECORD - SENATE January 3 would not be debatable and an appeal there• therefore, that such a m·otion would be re~ ginning. Tliey are the same now to au from could be voted upon and decided imrile· sorted to, despite the suggestion in the sup­ intents and purposes as when they were first diately by majority vote. plemental written statement of Mr. Reuther, adopted more than a hundred years ago. If the Vice President is sustained by the above referred to, of its possible use. There never has been in the Senate any rule Senate as to the secondary issue, the main oh the question of limitation of debate which enabled the majority to close debate question would be subject to limitation of under general parliamentary rules, authori­ or compel a vote. The previous question, debate under Senate rule XXII . only. If ties seem to agree that a two-thirds, rather which existed in the earliest years, and was the Senate does not sustain the Vice Presi· than a majority vote is required. Thus, abandoned in 1806, was the previous ques­ dent's ruling on the secondary issue, debate Sturgis, in Standard Code of Parliamentary tion of England and not that with which on the main question would proceed under Procedure (1950), pages 47-48, says: everyone is familiar today in our House of general parliamentary rules. "It is unwise to make a practice of cutting Representatives. It was not in practice a It should be pointed out that the same off or preventing debat e and deliberation on form 9f clot ure and it is therefore correct secondary issue could be raised, if the Vice debatable questions. This is true whether to say that the power of closing debate in President overrules a point of order directed debate is cut off by recognized motions or by the modern sense has never existed in the to the main question. This is true, not­ arbitrarily bringing questions to vote without Senate." 84. wit hstanding the claim that parliamentary adequate opportunity for discussion. • • • IV. SHOULD THE SENATE DETERMINE ITS RULES rules would automatically govern in such Since full discussion of all proposals is a ARE NOT CONTINUING FROM ONE CONGRESS TO an event. It is doubtful that the secondary fundamental r ight of Members, a motion ANOTHER? issue would be raised by opponents of the which restricts or sets aside this right by (a) Arguments pro Reuther proposal for they may be expected closing or limiting debate requires a two­ thirds vote." Any decision the Senate might make on to avoid such a showdown vote, especially this question will also contemplate its effect since that vote would be reached without Additional parliamentary authorities stat­ ing that a two-thirds vote is needed in order on rule XXII and a possible end to unlim­ debate. ited debate in the Senate by a majority With respect to the main question, it is to limit debate are the following: claimed that if debate thereon is under (1) ·P almer, A New Parliamentary Manual cloture rule. This would follow from the general parliamentary rules a :filibuster "can ( 1901), section 241: fact that if the Senate in each new Con­ be cut off either by a motion to lay on the "The general principles of parliamentary gress could determine its own rules by ma­ jority vote, rule XXII would no longer be table or by moving the previous question ~ law require that the assembly should reach A majority in favor of the motion to table its decisions on matters that come before it a bar, either in its requirement of a mini­ would operate to affirm the Chair's ruling. (1) in the order prescribed for their intro­ mum of 64 affirmative votes to end debate A majority in favor of the call for the pre­ duction, (2) after full debate, (3) in accord­ on all matters save a change in the rules vious question would permit an immediate ance with its established rules. And these themselves, or in its application to prevent requirement s are of such importance that a cloture of any kind on an attempted rule vote on the appeal." 28 • change. The conclusion is then reached that the bare majority should not be permitted to adoption of rules "for the Senate of the 83d disregard or alter them. They should be ob­ Another collateral but equally important Congress" would then be in order, under served unless the reasons for proceeding con­ consideration in the thinking of many will "regular parliamentary procedure by ma­ trary to them are so obvious that a two­ be th9 effect of the Senate's decision upon jority vote." thirds majority desire to so proceed." the civil-rights issue. · Under the rules of the Senate a motion to The author then cites six instances, includ­ The pros and cons of these two issues will lay on the table has the effect of shutting ing limitation or closing debate, as requiring not be detailed here, except as they are re• off debate and reaching a vote by a simple "a two-thirds vote because they are in oppo­ lated directly to the main question.35 majority,211 but under gep.eral parliamentary sition to one or another of these three re­ Whet her or not the Senate rejects all rules this motion does not have the same quirements.'' precedent in this instance, an examination effect. On the contrary, such a motion wili, (2) Rice's Rules of Order (1921), section 41, of that precedent is indicated. 1f adopted, result only in postponing a mat­ footnote 17, page 146: Of equal or · even greater significance are ter temporarily.3o Obviously, an appeal from "The two-thirds vote • • • is the rule for the remoter consequences either assured or a ruling of the Chair that is adverse to the ordinary societies, while in the United States conjectural, of a determination that its rules Reuther proposal would not be made the sub­ House of Representatives it requires only a are not continuing. ject of a motion to lay on the table, since majority vote, and in the Senate the motion The brief in· support of Walter Reuther's the effect of that ruling would be to make is not allowed at all. But there is a growing claim asserts that majority rule is the basic the Senate rules (including rule XXII) con­ sentiment throughout the country that the principle of our Constitution; and that rule tinuing rules. Senate should adopt a cloture rule." X:X:II is violative of that principle, not only If, as a result of a ruling of the Chair (3) Plummer, Practical Lessons in Parlia­ in that it fastens a requirement of a con­ that is favorable to the Reuther proposal, mentary Procedure (1921), p age 50. stitutional two-thirds vote to invoke cloture the Senate rules are held not to apply, a mo­ (4) Robert's Rules of Order, Revised but also in that "in its efforts to bind future tion to lay on the table an appeal from (1951), section 29, page 112. Congresses to its own standards of inaction, that ruling would not have the effect of kill­ With respect to the "previous question" the Senate of the 81st Congress compounded ing debate, since it would be made under rule, there are some who refer to rule VIII of the unconstitutionality of the rule it was general parliamentary rules. It would re­ the original Senate rules, adopted in 1789. adopting." 30 That rule was invoked some four times be­ sult not only in postponing the appeal, but The result has been "a constitutional crisis the main question as well.31 It is not likely, tween 1789 and 1806, when the Senate rules were revised and mention of "th·e previous of senatorial inaction in time of national question" was dropped from rule VIII. It has emergency * • • . .Talk has been substituted 28 Attention is directed to the Manual of never since been in the Senate rules. There for action; the duty to legislate has been Rules of the House of Representatives, in is some question whether this rule provided frustrated • * *. It was just such a crisis of which is found the following statement: for cloture, however, in the way the previous inaction tliat the Founding Fathers had seen "The power of each House of Representatives question rule now operates in the House of in the Articles of Confederation and had to make its own rules may not be impaired Representat-ives.32 Indeed, the House rule or controlled by the rules of a preceding "was not turned into an instrument for clos­ 3f Quotation as cited in 52 CONGRESSIONAL House. • • • Before the adopt ion of rules ing debate until 1811, although it, also, the House is governed by general parliamen­ RECORD, pt. IV, p. 3736 (Feb. 13, 1915). The adopted a rule for the previous question in conclusion that the early Senate rule con­ tary law, but the Speakers have been inclined. 1789." 33 to give weight to the precedents of the House cerning the "previous question," did not Senator Henry Cabot Lodge, in an article provide cloture was repeatedly asserted with­ in modifying the usual constructions of that appearing in the North American Review of law" (H. Doc. No. 739, 8lst Cong., pp. 22-23). out challenge on the Senate floor during November 1893, entitled, "Obstruction in the the 1949 debates which preceded adoption If similar weight were to be given to prece­ Senate," wrote: . dents of the Senate, it would by no means of the _Wherry-Hayden .amendment to Sen­ be certain, therefore, even if general parlia­ "The rules of the Senate are practically ate rule XXII. See, e. g., statement of mentary rules were held controlling, that unchanged from what they were at the be- Senator HOLLAND, 95 CONGRESSIONAL RECORD, the Senate rules, especially Senate rule pt. II, pp. 1784-1785; also, colloquy between XXII, would be disregarded, in the circum­ 32 Rule XVII of the House provides: "There Senator George and Senator MORSE, p. 2144. stances under discussion. shall be a motion for the previous question, 35 Many of these pros and cons are com­ 211 See Senate rule XXII, sec. 1 (appendix I, which, being ordered by a majority of the prehensively set forth, generally, in the hear­ attached hereto). members voting, if a quorum be present, ings, op. cit., supra, note 1. Some of the ao See Sturgis, Standard Code of Parlia­ shall have the effect to cut off all debate and arguments favoring such a _determination mentary Procedure (1950), pp. 202-204; Rob­ bring the House to a direct vote upon the have already been stated in pt. l, supra. ert's Rules of Order, Revised (1951), sec. 28, immediate question or questions on which ae Hearings, pp. 147-157. Note that Mr. pp. 104-111. it has been asked and ordered • • •." Reuther testified, "Unfortunately, you can't 31 See Sturgis, Standard Code of Parlia­ 83 See Manual of Rules of House of Repre­ get this kind of thing. to the Supreme Court. mentary Procedure (1950), p. 204; Robert's sentatives, footnote concerning House rule Otherwise, there would have been a test" Rules of Order, p . 110. · XVII. (p. 146). 1957 CONGRESSIO~ RECORD - SENATE 35 sought to prevent in the Constitution of the Congress (rule X.XXVII, clause 3) • The gathered cobwebs and dust that have come United States • • • .37 - Senate adjourns sine die at the end of each down through the centuries-. It is to say that "But rule XXII has a second fatal flaw Congress. it must be done 'by some new change and that which would demonstrate its unconstitu-:­ "The reintroduction of bills into the Sen­ we cannot by ourselves submit to the ma­ tionality even if one were to close his eyes ate of each new Congress is made necessary, jority the right to transact business.'' to the clearly expressed intent of the Con­ of course, because a majority in favor or This was challenged by Senator Root (New stitutional Convention in favor of majority against a given bill may be changed by the York) ,.. who asked: "Does anybody dispute rule and the other constitutional history set election of new Senators to some or all of that the Senate is a continuous body?" To forth in this brief. the one-third of the seats whose terms expire. which the following reply was made by Sen­ "Clause 3 of rule X.XII pz:ovides that clo­ A bill passed by an earlier Senate could not, ator Thomas (Colorado) : ture cannot apply to any motion to consider therefore, be considered the will of the later "I dispute it, and [that it will be tested out a change in any of the Standing Rules of the Senate unless a new vote were taken. But at the beginning of the next Congress) .3ll Senate. The Senate of the 8lst Congress has certainly the new Senate must· be able to The Senate is a continuous body in the sense attempted to fasten its will on all future express its will on the rules of the Senate that two-thirds of it hold over with every Senates; it has attempted to perpetuate the as well as concerning legislation proposed for Congress. We appoint new committees and present rule X.XII for all time. adoption. And this is particularly true of assign the new Members; but there is no more "By clause 3, a future Senate no longer can rule X.XII, which, because it determines the reason why the rules of the Senate should 'determine the rules of its proceedings.' The course of all legislation in the Senate, is far continue from Congress to Congress than rule adopted by the 1949 Senate sought to more important than any single piece of sub­ that our committees should continue from determine them once and for all. A virtually stantive legislation that the Senate might Congress to Congress. I do not know what unanamious vote is now required for any consider. others may think, but one of the efforts I succeeding Senate to adopt its own rules, for "It will be argued that the uniform prac­ shall make will be to secure a change of the clause 3 makes it possible for any one or two tice from the time of the organization of the rules when the new Senate shall organize." 40 stubborn Senators to prevent a change in the Second Senate until the present time has On Tuesday, March 6, 1917-the day after rules. Rule X.XII thus clearly deprives each been to treat the rules of the Senate as con­ the convening of the 65th Congress in special succeeding Senate of the constitutional right tinuing in force from Congress to Congress. session-Senator Owen obtained recognition to make its own procedural rules. But this practice would be more persuasive on the Senate floor and the following col~ "The principle is well established that one if it had been challenged and voted upon. loquy ensued: Congress cannot bind future Congresses. Until Senator Walsh, of Montana, on March "Mr. OWEN. Mr. President, I wish, before This principle finds expression, for example, 7, 1917, argued that the rules were not in any action is taken that will recognize the in Cooley's Constitutional Limitations, 6th force as the Senate was not and could not Senate as being bound by the rules of the edition, 1890, pages 146-147: legally be a continuing body, the question preceding Congress, to make the observation "•• • • To say that the Legislature may does not seem ever to have been directly that while the Sanate is a continuing body pass irrepealable laws is to say that it may raised ( 55 CONGRESSIONAL RECORD, 9). Sena­ as an executive body it is not a continui,ng alter the very Constitution from which it tor Walsh urged that, since there were no body as a legislative body. All the bills on derives its authority; since, insofar as one Senate rules in effect at the beginning of the the calendar died with the 64th Congress. Legislature could bind a subsequent one by session of Congress which was then starting, We have no calendar. We have no legislative its enactments, it could in the same degree it should be possible to adopt a cloture rule committees. I wish to make the point that reduce the legislative power of its successors; directly rather than by the process of amend­ those rules are not binding on the new Mem­ and the process might be repeated until, ing the rules. The Senate did not vote on bers who come into this body, who have had one by one, the subjects of legislation would Senator Walsh's proposal.1' Certainly, gen­ no opportunity to participate in the making be excluded altogether from their control, eral acquiescence in the practice of continu­ of the rules by which they are to be bound, and the constitutional provision that the ing rules from Congress to Congress is no and that they are not bound in the legislative legislative power shall be vested in two binding precedent upon a Senate no longer functions of the Senate by the rules of any Houses would be to a greater or less degree prepared to acquiesce in that practice. preceding Congres·s. rendered ineffectual.' - "The VICE PRESIDENT. Is that a point of 14 "This quotation almost seems to have been ·~ However, the cloture resolution which order? addressed to rule X.XII. That rule, by al­ was adopted was phrased in terms of an "Mr. OWEN. I make that observation for lowing a small minority to prevent changes amendment of rule XXII. Recently the Sen­ the RECORD so that any proceedings we take in the rule and to prevent action by the ate has recognized that it could not bind here shall be by.unanimous consent. Senate under the rule, actually operates to future Congresses. In section 101 (b) of the "Mr. LODGE. I wish to call attention to the exclude subjects of legislation from the con­ Legislative Reorganization Act (Public Law fact that the committees of the Senate were trol of the Senate. Civil-rights legislation, 601, 79th Cong., 2d sess.) it was provided continued by resolution, as usual, and those desired by the overwhelming majority of the that certain rules set out were to be the committees can only exist under the rules. Senate, cannot be acted upon by the present Standing Rules o! the Senate and House, The question whether the rules continue or Senate, not because of anything the present respectively, "with full recognition of the not is a rather large one, which I have no Senate did or can do, but because of rule constitutional right of either House . to desire to discuss at this time. I call atten­ XXII passed by the Senate of a-nearlier Con­ change such rules.' .. tion to the action of the last session of Congress.'' 41 gress. The dead hand of the .Senate of the "The generally admitted principle that one 81st Congress excludes vital subjects of legis­ Congress cannot bind · its successors is On Wednesday, March 7, 1917, Senator lation from the control of all future Senates. especially applicable to rule X.XII. The sug­ Walsh, of Montana, submitted Senate Reso­ "Strangely enough, although the. principle gestion that the Senate is a continuing body lution 5, as follows: that one Congress cannot bind a subsequent has neither the logical nor historical force "Resolved, That until further ordered the Congress is generally accepted, the statement to prevent a new Senate from exercising its rules of the Senate in force at the close of the that the Senate is a continuing body is used constitutional right to 'determine the rules 64th Congress be adopted as the rules of the Senate, with the exception of rule XXII to defend the perpetuation of its rules. This of its proceedings.'" 38 thereof. continuing body theory seems to be predi­ (Q) Precedents on the continuity question cated upon the fact that two-thirds of the "Resoivea, That a committee of seven Mem­ Members of the Senate continue their terms (1) Senate Precedents bers be appointed by the Vice President, four at the expiration of each Congress; it cer­ No direct precedent has been found in the of whom shall be members of the majority tainly has no other or constitutional basis. form of a Senate ruling either on the ques­ and three members of the minority, to draft "Yet the Senate itself recognizes that it is tion (1) whether the Senate is a continuing a substitute for rule XXII.'' 42 not truly continuing. Bills must be rein­ body, or (2) whether its rules are continu­ On Thursday, March 8, 1917, Senator Mar­ troduced and repassed in the Senate of each ing. It is evident, however, that the over.; tin, of Virginia, submitted a resolution new Congress. The Senate, even when act­ whelming body of opinion and comment; (thereafter identified as S. Res. 5) and askeq ing in executive capacity. does not treat itself both in the Senate and elsewhere, -negatives for its immedfate consideration. It passed as continuing; consideration of the ratifica­ the Reuther thesis. In the portion of the the Senate, 76-3, and became rule XXII in tion of treaties begins de novo in each new brief which he submitted and which is quoted the form in which it remained until the above, the challenge to Senate continuity is Wherry-Hayden amendment thereto was shown not to be a new one. adopted.43 37 While the quoted language-refers both to The continuity of the Senate as a body the Constitution and to the Founding Fath­ 30 Matter in brackets added. ers, it is believed that the arguments here was questioned on the Senate floor by Sen­ 4o 52 CONGRESSIONAL RECORD, pt. 4, p. 3792. ator James, of Kentucky, on February 15, used have a more direct bearing on the issue il 55 CONGRESSIONAL RECORD, pt. 1, p. 3. whether the Senate should alter the prece­ 1915, during a filibuster on a shipping bill. 42 55 CONGRESSIONAL RECORD, pt. 1, p. 9. He stated: -· dent of the continuity_of its rules than on 43 Senator Walsh did not vote, being "neces- whether the Constitution and the Founding -"These rules have not been adopted by the 1!iarily absent from the city," when the Martin Fathers intended to provide for such continu..: Senate. These [sic) are merely the inheri­ resolution was passed on the same day that it ity. Hence, the inclusion of the ma:terial at tance of a hundred years behind us, with the was submitted. Moreover, there is no record this point rather than in an earlier part of of any subsequent action on S. Res. 5 by Sen­ this discussion. _as Hearings, pp. 156-157. ator Walsh. · 36 CONGRESSIONAL RECORD-. SENATE January 3 During the following year Senator Thomas and, after quoting the above statement from without reference to the ending of one Con­ stated to the Senate: Jefferson's Manual, he says: 'Tl:_le Senate, gress or the beginning of another. This "I recall that in one instance I was re­ however, being a continuing body, gives au­ procedure ls not affected even where there is ferred • • • for information regarding the thority to its committees during the recess some change in the composition of the com­ 2 continuous character of the Senate. I availed after the expiration of a Congress.' ' So mittee membership. myself of that suggestion to investigate the far as we are advised the select committee Under Senate rule XXV, all standing com­ subject, and found the references were having this investigation in charge has mittees continue until their successors are correct."" neither made a final report nor been dis­ appointed.60 The duration of select com­ It is altogether probable that the source charged; nor has it been continued by an mittees in th_e Senate depends on the terms m aterial to which Senator Thomas thus re­ affirmative order. Apprently · its activities of the resolutions under which their power is ferred was contained in a 1917 document have been suspended pending the decision of derived. "printed for the use of the Secretary of the this case. But, be this as it may, it is cer­ "In the first 40 years after the adoption qf Senate," which was entit led "The Senate as tain that the committee may be continued the Constitution, the House conducted 7 or a Continuing Body," containing extracts or revived now by motion to that effect, and, 8 times as m any investigations as d id the from the CONGRESSIONAL GLOBE and other in­ if continued or revived, will have all its orig­ Senate. In fact, down to the last quarter formation.45 A copy is annexed hereto as inal powers.25 This being so, and the Senate of the 19th century most of the investiga­ appendix III. being a continuing body, the case cannot be tions of large consequence were instituted said to have become moot in the ordinary by the House. But increasingly, beginning (2) Judicial Precedents sense. • • •" '6 with the last quarter of the 19th century, the The question whether the Senate ls a con­ House has seemed to be relinquishing such t inuing body and, in that respect, is unlike " 23 Vol. 4, sec. 4544. activities, while the Senate has been greatly the House of Representatives, which cannot u 24 Vol. 4, sec. 4545. expanding its exercise of the investigative continue beyond the period of a single Con­ " 25 Hines' Precedent s, Vol. 4, secs. 4396, 4400, function, in the number, variety, and im­ gress, was considered by the United St ates 4404, 4405." portance of its inquiries. The explanation Supreme Court in the case of McGrai n v. The following ls quoted from Robertson v. of this remarkable shift is to be found in the Daugherty (273 U.S. 135 (1926)). State (109 Indiana 79, 10 N. E. 582 (1887)): contrast between the rules and procedure of The question b efore the court in that case "In response to much that has been said the House and of the Senate. • • • For the was whet her the Attorney General's brot her upon the subject in argument, I feel quite as­ future, the decision in McGrain v. Daugherty was within his legal rights when he refused sured that the senat e of this State is not, has materially broadened the scope of con­ to appear, although subpenaed, as a witness lilrn the Senate of the United States, a con­ gressional inquiries and the grand-jury in­ before a Senate investigating committ ee. tinuous body. In the Senate of the United vestigative function is likely to be increas­ The following is quoted from the unani­ States a majority constitutes a quorum and ingly used by the Senate, particularly as to mous decision of the Court in that case (pp. as there is always more than a quorum of the Executive and the 'Independent Agen­ 180-182): qualified Senators holding seats in that body, cies.'" 61 "• • • We conclude that the investigation its organized existence is necessarily con­ Obviously, what Haynes wrote in 1938 ls was ordered for a legitimate object; that the tinuous. But in the senate of this State equally applicable today. To destroy Sen­ witness wrongfully refused to appear and two-thirds of its members are necessary to ate continuity would, in effect, reverse the testify before the committee and was lawfully m ake a quorum. As one-half of its members precedent in McGrain v. Daugherty, of con­ attached; that the Senate is entitled to h ave go out of office at the end of each legislative tinuity as it applies to Senate committees. him give testimony pertinent to the inquiry, term of two years-that is to say, on the day (e) The Senate as an execut~ve body either at its bar or before the committee; and after each general and biennial election-it that the district court erred in discharging becomes, at the end of each such legislative The constitutional prerogatives of the Sen. him from custody under the attachment. term a disorganized body; and, as the officers ate in treatymalting and in giving or with­ of the senate comprise an essential part of holding advice and consent to certain Pres­ "Another question has arisen which should idential appointments have already been re­ be noticed. It is whether the case has be­ its organization, it necessarily results that the terms of such officers expire when the ferred to. Indeed, the many special sessions come moot. The investigation was ordered of the Senate, as distinguished from special and the committee appointed during the body becomes disorganized for want of a quorum.47 sessions of the Congress heretofore convened, Sixty-eighth Congress. That Congress ex­ were for executive, rather than legislative pired March 4, 1925. The resolution ordering (c) Senate officers and continuity 48 purposes.62 the investigation in terms limited the com­ Because the Senate has been held to be a. The Senate "does not change all at once, as mittee's authority to the period of the Sixty­ continuing body, its officers have no stated do bodies created by a single popular election, eighth Congress; but this apparently was term of office, but serve until their succes­ but undergoes an increasing process of grad­ changed by a later and amendatory resolution sors are selected. On March 24, 1879, while ual change and renewal, like a lake into authorizing the committee to sit at such the Senate was in process of replacing some which streams bring fresh water to replace times and places as it might deem advisable of its officers with others, along purely po­ that which the issuing river carries out. This or necessary.21 It is said in Jefferson's Man­ litical lines, Senator Anthony observed: provision was designed to give the Senate 2 ual: 2 "Neither House can continue any por­ "Unlilte the House of Representatives, that permanency of composition which tion of itself in any parliamentary function which expires every two years and is renew­ might qualify it to conduct or control the beyond the end of the session without the able fresh from the people, the Senate never foreign policy of the Nation." 53 consent of the other two branches. When dies. The same which it was when it met, in Woodrow Wilson wrote: "• • • The con­ done, it is by a bill constituting them com­ 1789, it is now, and has held continuous and tinuity of the Government lies in the keep­ missioners for the particular purpose." But unbroken existence ever since. Its officers ing of the Senate more than in the keeping the context shows that the reference is to the have naturally partaken of its permanent of the Executive, even in respect of matters two houses of Parliament when adjourned by character. Its elective officers are chosen, which are the especial prerogative of the prorogation or dissolution by the King. The not for a definite period, but during the Presidential office." M rule may be the same with the House of Rep­ pleasure of the Senate.' o Attention is directed to Senate Rule resentatives whose members are all elected (d) Senate committees and continuity XX.XVII, section 2, as follows: for the period of a single Congress; but it can­ "Treaties transmitted by the President to not well be the same with the Senate, which Hitherto the House of Representatives has the Senate for ratification shall be resumed is a continuing body whose members are been at a distinct disadvantage over the at the second or subsequent session of the elected for a term of six years and so divided Senate because its committees end with each into classes thap the seats of one-third only Congress. The Senate can and does order become vacant at the end of each Congress, investigations, interim reports, final report so Compare House Rule X on standing com­ two-thirds always continuing into the next and recommendations by its committees, mittees. It has no comparable provision, and all committees expire with each congress. Congress, save as vacancies may occur 81 through death or resignation." Haynes, op. cit. supra, note 1, pp. 551-553. 'a See also, discussion of the Senate as a 82 See footnote 21 of this discussion. These " 21 CONGRESSIONAL RECORD, 68th Congress, permanent body, in a leading article entitled, special Senate sessions were all held prior to 1st session, p. 4126. ~ ·The Smith-Vare Case and Its Relation to enactment in 1933 of the 20th amendment to " 22 Senate Rules and Manual, 1925, p. 303." Senate Procedure," by Charles C. Tansill, the constitution which, among other things, National University Law Review, May 1928, abolished the so-called lame-duck sessions of "Mr. Hinds in his collection of precedents pp. 29- 38. the Congress and which advanced the com­ says: 'The Senate, as a continuing body, may • 47 See also, State v. Rogers (56 N. J . Law mencement of.the Presidential term of office continue its committees through the recess 480, 622) (1894). from March 4 to January 20. following the expiration of a Congress'; 23 .a For discussion of applicable constitu­ 63 The American Commonwealth, by James tional provisions, see supra, pt. II (a). Bryce ( 18.91 edition), p. 101. At this point « 57 CONGRESSIONAL RECORD, pt. 1, p. 437, 4D 9 'CONGRESSIONAL REcORD, pt. 1,. p. 147. Bryce cited The Federalist,.No. 61, and Alex­ December 14, 1918. See, to the same effect, This -Country of ander Hamllton's argument in the New York '5 This document was prepared by the Leg­ Ours, p. 51, by Benjamin Harrison, former State Convention (Elliot's Debates, vol. II, islative Reference Division, Library ·of Con­ United States President and United States p. 307). gress, and printed as a Senate print, 65th Senator; Haynes, op. cit. supra, note 1, p. M Constitutional Government in the Cong., special session. · 261; appendix III, attached hereto. United States, p. 127. 1957· - CONGRESSIONAL RECORD-- SENATE 37 same Congress at the stage in which they prior to that time. No dilatory motion, or It ·was moved and r:econd-ed to- insert the were left at the final adjournment of theses­ dilatory amendment, or amendment not ger­ word "six," instead of "seven." sion at which they were transmitted; but all mane shall be in order·. Points of order, It was moved and seconded to amend the proceedings on treaties shall terminate with including questions of relevancy, and ap­ clause so as to read, "for four years, one­ the Congress, and they shall be resumed at peals from the decision of the Presiding fourth to go ·out annually." the commencement of the next Congress as Officer, shall be decided without debate. No determination being taken on the three if no proceedings had previously been had 3. The provisions of the last paragraph of last motions, it was moved and seconded to thereon." rule. VIII (prohibiting debate on motions erase the word "seven" from the 3d clause Note that even under this rule, unless it is made before 2 o'clock) and of subsection' 2 of the 4th resolution; which passed in the withdrawn by the President or fails from of this rule shall not apply to any motion· to affirmative (1 Elliot 188). lapse of time, a treaty continues to be live proceed to the consideration of any motion, Tuesday, June 26, 1787. matter and, as such, pending in the Senate. resolution, or proposal to change any of the It was moved and seconded to amend the It need not be resubmitted with commence­ Standing Rules of the Senate. 3d clause of the 4th resolution, reported from ment of a new Congress.55 On . the other the committee, so as to read as follows, hand, nominations not disposed of in the APPENDIX II namely, "for nine years, one-third to go out Senate die with the Congress in which they SOURCE MATERIAL RELATED TO THE DIVISION OF triennially"; which passed in the negative". are submitted.oo SENATORS INTO CLASSES 1 Yeas: Pennsylvania, Delaware, Virginia, 3. Nays: , Connecticut, New York, ARTICLES OF CONFEDERATION (1777) New Jersey, Maryland, North Carolina, South APPENDIX I Art. 5. For the more convenient manage­ Carolina, Georgia, 8. STANDING RULES OF THE SENATE ment of the general interest of the United It was then moved and seconded to amend RULE XXII States, delegates shall be annually appointed the 3d clause of the 4th resolution so as to in such manner as the legislature of each read, "for six years, one-third to go out Precedence of motions state shall direct, to meet in Congress on the biennially." 1. When a question is pending, no motion first Monday in November, in every year, On the question to agree to the amend­ shall be received but- with a power reserved to each state, to recall ment, it passed in the affirmative. To adjourn. its delegates, or any of them, at any time Yeas: Massachusetts, Connecticut, Penn­ To adjourn to a day certain, or that when wit hin the year, and to send others in their sylvania, Delaware, Maryland, Virginia, North the Senate adjourn it shall be to a day cer­ stead for the remainder of the year. Carolina, 7. Nays: New York, New Jersey, t ain. No state shall be represented in Congress South Carolina, Georgia, 4. To take a recess. · by less than two, nor by more than seven ( 1 Elliot 189.) To proceed to the consideration of execu- members; and no person shall be capable o! tive business. being a delegate for more than three years RESOLUTIONS OF THE CONVENTION To lay on the table. in any term of six years; nor shall any per­ (Referred, on the twenty-third and twenty­ To postpone indefinitely. son, being a delegate, be capable of holding sixth of July 1787, to a committee of detail To postpone to a day certain. any office under the United States, for which (Messrs. Rutledge, Randolph, Gorham, To commit. he, or another for his benefit, receives any Ellsworth, and Wilson), for the purpose of To amend. salary, fees, or emolument of any kind reporting a constitution) Which several motions shall have preced­ (Elliot, Debates on the Federal Constitution, Journals, June 25: ence as they stand arranged; and the mo­ 2d edition, , 1907, vol. 1, p. 80. "IV. Resolved, That the members of the tions relating to adjournment, to take a ~ereafter cited as Elliot). second branch of the legislature of the recess, to proceed to the consideration of MR. CHARLES PINCKNEY'S DRAFT OF A FEDERAL United States ought to be chosen by the in­ executive business, to lay on the table, shall GOVERNMENT dividual legislatures; to be of the age of be decided without debate (Jefferson's Man­ ..... thirty years at least; to hold their offices for ual, Sec. X:XXII). "Art. IV. The Senate shall be elected and six years, one-third to go out biennially; to 2.~ Notwithstanding the provL-:;ions of rule chosen by the House of Delegates, which receive a compensation for the devotion o! III or rule VI or any other rule of the Senate, house, immediately after their meeting, shall their time to the public service; to be ineli­ except subsection 3 of rule XXII, at any time choose by ballot ---- senators from among gible to, and incapable of holding, any office a motion signed by 16 Senators, to bring to the citizens and residents of New Hamp­ under the authority of the United States a close the debate upon any· measure, mo­ shire; ---- from among those of Massachu­ (except those peculiarly belonging to the tion, or other matter pending before the setts; ---- from among those of Rhode functions of the second branch), during the Senate, or the unfinished business, is pre­ Island; ---- from among those of Connecti­ term for which they are elected, and for one sented to the Senate, the Presiding Officer cut; ---- from among those of New York; year thereafter. • • *" shall at once state the motion to the Senate, ____ from among those of New Jersey; ---­ ( 1 Elliot 221). and 1 hour after the Senate meets on the from among those of Pennsylvania; ----from following calendar day but one, he shall lay among those of Delaware; ---- from among DRAFT OF A CONSTITUTION the motion before the Senate and direct that those of Maryland; ---- from among those (Reported by the Committee of Five, the Secretary call the roll, and upon the of Virginia; ----from among those of North August 6, 1787) ascertainment that a quorum is present, the Carolina; ---- from among those of South (One copy of this printed draft is among Presiding Officer shall, without debate, sub­ Carolina; and ---- from among those of the papers deposited by President Washing­ mit to the Senate by a yea-and-nay vote the Georgia. The senators chosen from New ton in the Department of State; another question: Hampshire, Massachusetts, Rhode Island, and copy is among the papers of Mr. Brearly, fur­ "Is it the sense of the Senate that the Connecticut, shall form one class; those from nished by General Bloomfield.) debate shall be brought to a close?" New York, New Jersey, Pennsylvania, and "Art. V. Sec. 2. The senators shall be chosen And if that question shall be decided in Delaware, one class; · and those from Mary· for six years; but immediately after the first the affirmative by two-thirds of the Senators land, Virginia, North Carolina, South Caro­ election, they shall be divided, by lot, into duly chosen and sworn, then said measure, lina, and Georgia, one class. The House of three classes, as nearly as may be, numbered motion, or other matter pending before the pelegates shall number these classes one, one, two, and three. · The seats of the mem­ Senate, or the unfinished business, shall be two, and three, and fix the times of their bers of the first class shall be vacated at the the unfinished business to the exclusion of service by lot. The first class shall serve for expiration of the second year; of the second all other business until disposed of. ----years, the second for ____ .years, and the class at the expiration of the fourth year; o! Thereafter no Senator shall be entitled to third for ---- years. As their times of serv­ the third class at the expiration of the sixth speak in all more than 1 hour on the meas­ ice expire, the House of Delegates shall fill year; so that a third part of the members ure, motion, or other matter pending before them up by elections for ---- years, and may be chosen every second year" ( 1 Elliot the Senate, or the unfinished business, the they shall fill all vacancies that arise from 225). amendments thereto, and motions affecting death, or resignation, for the time of service the same, and it shall be the duty of the remaining of the members so dying or re- REVISED DRAFT OF THE CONSTITUTION Presiding Officer to keep the time of each signing. Each senator shall be ____ years o! (Reported September 12, 1787, by the Senator who speaks. Except by unanimous age, at least; shall have been a citizen o! Committee on Revision) consent, no amendment shall be in order the United States four years before his elec­ ... . . after the vote to bring the debate to a close, tion; and shall be a resident of the state he "Art. I. Sec. 3. The Senate of the United unless the same has been presented and read is chosen from. The Senate shall choose its States· shall be composed of two senators own officers" (1 Elliot 145-146). from each state, chosen by the legislature 65 For an ·extreme illustration, consider the Monday, June 25, 1787. thereof, for six years and each senator shall Isle of Pines Treaty. It was continuously be­ It was moved and seconded to add, after have one vote. fore the Senate from March 3, 1904, until its the words "seven years," in the 4th resolu­ "Immediately after they shall be assembled ratification ·on March 13, 1925. See Haynes, tion, the words "to go out in ft~ed propor- in con~equence of the first election, they shall op. cit., supra, note l, p. 626. tions." · be divided, as equally as may be, into three 66 Senate Rule XXXVIlI, sec. 6. classes. The seats of the Senators of the first 1 As amended, Sen.ate Journal ~73; 81st 1 Legislative Reference Service, Library of class shall be vacated at the expiration of Cong., 1st sass., March 17, 1949·. Congress, November 17, 1952. the second year; of the second class at the 38 CONGRESSIONAL RECORD - SENATE Januar y 3 expiration of the fourth year; and the third ment. The great objection of many ls, that Massachusetts, Connecticut, New York; class at the expiration of the sixth year; so this duration would give birth to views in­ New Jersey; North Carolina, South Carolina, that one-third may be chosen every second consistent with the interests of the Union. Georgia, ay, 7; Pennsylvania, Delaware, Vir­ year. And if vacancies happen by resigna­ This can have no weight, if the triennial ro­ ginia, no, 3; Maryland, divided. tion, or otherwise, during the recess of the tation is adopted; and this plan may possi­ On the question to insert "six years," legislature of any state, the executive thereof bly tend to conciliate the minds of the mem­ which failed, five ·states being, ay; five, no; may make temporary appointments until the bers of the Convention on this subject, which and one, divided- · next meeting of the legislature • . • •" (1 have varied more than on any other question; Connecticut, Pennsylvania, Delaware, Vir­ Elliot 298) • The question was· then put on Mr. Read's ginia, North Carolina, ay, 5; Massachusetts, motion, and lost--8 noes, 3 ayes. New York, New Jersey, South Carolina, Geor­ THE NOTES OF THE SECRET DEBATES OF THE The question on five years, and a biennial FEDERAL CONVENTION OF 1787 gia, no, 5; Maryland, divided. rotation, was carried-7 ayes, 4 noes. New On motion to adjourn, the votes were, (Taken by the Late Horn;>rable Robert Yates, York in the minority (1 Elliot 447-451). five for, five against it; and one divided­ Chief Justice of the State of New York, DEBATES IN THE FEDERAL CONVENTION Connecticut, New Jersey, Pennsylvania, and one of the delegates from that state to Delaware, Virginia, ay, 5; Massachusetts, New the said convention) Tuesday, May 29, 1787. (Copied from the original manuscript of ·Mr. Charles Pinckney laid before the House ~~~kz'i~~~t~~:;l~~~~· d~~~!i.Carolina, Gear- Chief Justice Yates, by John Lansing, Jun., the draft of a Federal Government which on the question for "five years," it was and certified to be a true copy) he had prepared, to be agreed upon between lost-- Saturday, June 2, 1787. the free and independent States of America: Connecticut, Pennsylvania, Delaware, Vir­ • • • • • Pla'(I, of a Federal Constitution ginia, North Carolina, ay 5; Massachusetts, The Convention went Into committee of Art. IV: The senate shall be elected and New Yorlt, New Jersey, South Carolina, Geor­ the whole. chosen by the House of Delegates; which gia, no, 5; Maryland, divided. Mr. Wilson moved that the states should House, immediately after their meeting, Adjourned ( 5 Elliot 241) . be divided into districts, consisting of one shall choose by ballot ---- senators from Tuesday, June 26, 1787. or more states, and each district to elect a among the citizens and residents of New In Convention: The duration of the sec­ number of senators to form the second Hampshire; ---- from among those of Mas­ ond branch being under consideration­ branch of the national legislature-the sen­ sachusetts; ---- from among those of Rhode Mr. Gorham moved to fill the blank with ators be elected, and a certain proportion Island; ---- from among those of Connect­ "six years," one third of the members to to be annually dismissed-avowedly on the icut; ---- from among those of New York; go out every second year. plan of the New York Senate. Question put-­ ---- from among those of New Jersey; ---­ Mr. Wilson seconded the motion. rejected. • • • ( 1 Elliot 393). from among those of Pennsylvania; ---­ General Pinckney opposed six years, in Monday, June 25, 1787. from among those of Delaware; ---- from favor of four years. The states, he said, had Mr. Gorham proposed that the senators be among those of Maryland; ---- from among different interests. Those of the Southern, classed, and to remain four years in office; those of Virginia; ---- from among those of and of South Carolina in particular, were otherwise great inconveniences may arise, if North Carolina; ---- from among those of different from the Northern. If the sen­ a dissolution should take place at once. South Carolina; and ---- from among those ators should be appointed for a long term, Governor RANDOLPH.· This body must act of Georgia. The senators chosen from New they would settle in the state where they with firmness. They may possibly always Hampshire, Massachusetts, Rhode Island, exercised their functions, and would in a. sit--perhaps to aid the executive. The state and Connecticut, shall form one class; those little time be rather the representative of governments will always attempt to counter­ from New York, New Jersey, Pennsylvania, that, than of the state appointing them. act the general government. They ought to and Delaware, one class; and those from Mr. Read moved that the term be 9 years. go out in classes. Therefore I move that they Maryland, Virginia, North Carolina, South This would admit of a very convenient rota~ go out of office in fixed proportions of time, Carolina, and Georgia, one class. The House tion, one-third going out triennially. He instead of the words "seven years." of Delegates shall number these classes, 1, would still prefer "during good behavior;" Question on Governor Randolph's motion- 2, and 3; and fix the times of their service but being little supported in that idea, he 7 ayes, 3 noes, 1 divided. by lot. The first class shall serve for ---­ was willing to take the longest term that Do. for five years-5 ayes, 5 noes, 1 divided. years; the second for .---- years; and the could be obtained. The question for four years was not put; third for ---- years. As their times of serv­ Mr. Broom seconded the motion. and the Convention adjourned till tomorrow ice expire, the House of Delegates shall fill Mr. MADISON. In order to judge of the morning. them up ·by elections for ---- years; and form to be given to this institution, it will Tuesday, June 26, 1787. they shall fill all vacancies that arise from be proper to take a view of the ends to be Met pursuant to adjournment. Present, death or resignation, for the time of service served by it. These were-first, to protect eleven states. remaining of the Members so dying or re­ the people against their rulers; secondly, to Mr. GORHAM. My motion for four years' signing. Each eenator shall be ----· years protect the people against the transient im­ continuance was not put yesterday. I am of age at least; and shall have been a citizen pressions into which they themselves might still of opinion that classes will be necessary, of the United States for four years before be led. A people deliberating in a temperate but I would alter the time. I therefore move bis election; and shall be a resident of the moment, and with the experience of other that the senators be elected for six years, state he is chosen from. The Senate shall nations before them, on the plant of gov­ choose its own officers (5 Elliot 129). ernment most likely to secure their happi­ and that the rotation be triennial. ness, would first be aware, that those charged • • • • • Monday, June 25, 1787. with the public happiness might betray Mr. Read moved that the term of "nine The clause, that the second branch hold their trust. An obvious precaution against years" be inserted, in triennial rotation. their offices for a term of "seven years," this danger would be, to divide the trust being considered- between different bodies of men, who might • • • • • Mr. Gorham suggests a term of "four Mr. SHERMAN. The two objects of this watch and check each other. In this they years," one-fourth to be elected every ye~r. would be governed by the same prudence body are permanency, and safety to those Mr. Randolph supported the idea of rota­ who are to be governed. A bad government which has prevailed in organizing the sub­ tion, as favorable to the wisdom and sta­ ordinate departments of government, where is the worse for being long. Frequent elec­ bility of the corps; which might possibly be tions give security, and even permanency. all business liable to abuses is made to pass always sitting, and aiding the executive, and through separate bands, the one being a. In Connecticut we have existed one hundred moves, after "seven years," to add, "to go and thirty-two years under an annual gov­ check on the other. It would next occur to out in fixed proportion;" which was agreed to. such a people, that they themselves were ernment; and as long as a man behaves him­ Mr. Williamson suggests "six years," as self well, he is never turned out of office. liable to temporary errors, through want of more con"\7enient for rotation than seven information as to their true interest; and Four years to the Senate is quite sufficient, years. when you add to it the rotation proposed. that men chosen for a short term, and em­ Mr. Sherman seconds him. ployed but a small portion of that in public • • • • • Mr. Read proposed that they should hold affairs, might err from the same cause. This Mr. Wn.soN. The motion ls now for nine their offices "during good behavior." Mr. reflection would naturally suggest, that the years, and a triennial rotation. Every nation R. Morris seconds him. government be so constituted as that one of attends to its foreign intercourse; to sup­ General Pinckney proposed "four years." A its branches might have an opportunity of port its commerce; to prevent .foreign con­ longer time would fix them at the seat of acquiring a competent knowledge of the tempt; and to make war and peace. Our Government. They would acquire an inter­ public interests (5 Elliot 242). Senate will be possessed of these powers, and est there, perhaps transfer their property, Mr. WILSON. • • • The true- Teason why therefore ought to be dignified and perma­ and lose sight of the states they represent. Great Britain has not yet listened to a com­ nent. What is the reason that Great Britain Under these circumstances, the distant mercial treaty with us has been, because she does not enter into a commercial treaty with states would labor under great disadvan- bad no c<;>nfidence in the stability or efficacy us? Because Congress l;las not the power to tages. · of our Government. Nine year.s, with a rota­ enforce its observance. But give them those Mr. Sherman moved to strike out "seven tion, will provide these desirable qualities; powers, and give them the stability pro­ years," in order to take questions on the and give our Government an advantage in posed by the motion, and they will have several propositions. this respect over mo"narchy itself. In - a more permanency than a monarchial govern- On the question to strike out "seven,"- monarchy, much m1Ust always depend on the 1957 . CONGRESSIONAL RECORD-.SENATE 39 temper of the man. In such a body, the per­ Monday, August 6, 1787. the people any power to re.call them? What sonal character will be lost in the political. Mr. Rutle~ge delivered in the report qf the would be the tendency of the power con­ He· would add another observation. The committee of detail as follows-a printed tended for? Clearly this: The State legis­ popular objection against ap:Pointing any copy being at the same time furnished to latures, being frequently subject to factitious public body for a long term, _was, that it each member- and irregular passions, may be unjustly dis­ might, by gradual encroachments, prolong • . . . . affected and discontented with their dele­ itself, first into a body for life, and finally Art. V, Sec. 1. The Senate of the United gates; f!,nd a Senator may be appointed one become a hereditary one. It would be a sat­ States shall be chosen by .legislatures of the day and recalled the next. This would be a isfactory answer to this objection, that, as several States. Each legislature shall choose source of endless confusion. The Senators one-third would go out triennhlly, there two members. Vacancies may 'be supplied by are indeed designed to represent the State would be always three divisions holding their the executive until the next meeting of the governments; but they are also the represent­ places from unequal times, and consequently legislature. Each member shall have one atives of the United States, and are not to acting under the influence of different vote. consult the interest of any one State alone, views and different impulses. Art. V, sec. 2. The Senators shall be chosen but that of the Union. On the question for nine years, one-third for six years; but immediately after the first • • • • to go out triennially- election they shall be divided, by lot, into But to return: The people are the best Pennsylvania, Delaware, Virginia, ay, 3; three classes, as nearly as may be numbered judges who ought to represent them. To dic­ Massachusetts, Connecticut, New York, New one, two, and three. The seats of the mem­ tate and control them, to tell them whom Jersey, Maryland, North Carolina, South Car­ bers of the first class shall be vacated at the they shall not elect, is to abridge their nat­ olina , Georgia, no, 8. expiration of the second year; of the second ural rights. This rotation is an absurd spe­ On the question for six years, one-third to class at the expiration of the fourth year; of cies of ostracism-a mode of proscribing go out biennally,- the third class at the expiration of the sixth eminent merit, and banishing from stations Massachusetts, Connecticut, Pennsylvania, year; so that a third part of the members of trust those who have filled them with the Delaware, Maryland, Virginia, North Caro­ may be chosen every second year ( 5 Elliot greatest faithfulness. Besides, it takes away lina, ay, 7; New York, New Jersey, South Car­ 376-377). the strongest stimulus to public virtue-the olina, Georgia, no, 4 ( 5 Elliot 245) . DEBATES OF THE CONVENTION OF THE STATE OF hope of honors and rewards. The acquisition Monday, July 2, 1787. NEW YORK of abilities is hardly worth the trouble, unless Mr. Pinckney thought an equality of votes one is to enjoy the satisfaction of employing Tuesday, June 24, 1788. them for the good of one's country. We all in the second branch inadmissible • • • Convention assembled; and being resolved Congress have failed in almost every effort know that experience is indispensably neces­ into a committee, the 1st paragraph of the 3d sary to good government. Shall we, then, for an amendment of the federal system. section of the 1st article was read; when Mr. Nothing has prevented a dissolution of it but drive experience into obscurity? I repeat G. Livingston rose and addressed the Chair. that this is an absolute abridgment of the the appointment of this Convention; and he • • • I therefore move that the committee could not express his alarms for the conse­ people's rights. adopt the following resolution, as an amend­ As to the Senate's rendering themselves quence of such an event. He read his motion ment to this clause: to form the states into classes, \;ith an ap­ perpetual, or establishing such a. power as "Resolved, That no person shall be eligible to prevent their being removed, it appears to portionment of Senators among them. (See as a Senator for more than six years in any article 4 of his plan, ante, p. 129.) me chimerical. Can they make interest with term of twelve years, and that it shall be in their legislatures, who are themselves varying Mr. thought a commit­ the power of the legislatures of the several every year, sufficient for such a purpose? Can tee advisable, as the Convention had been States to recall their Senators, or either of we suppose two senators will be able to cor­ equally divided. He had a stronger reason them, and to elect others in their stead, to also. The mode of appointing the second rupt the whole legislature of this state? serve for the remainder of the time for which The idea, I say, is chimerical. The thing is branch tended, he was sure, to defeat the ob­ such Senator or Senators, so recalled, were ject of it. What is this object? To check impossible. appointed." Hon. Mr. LANSING. The objects of this th~ precipitatiop., changeableness, and ex­ Hon. Mr. LANSING .••• Now, if it was the amendment are, first, to place the senators cesses, of the first branch. Every :man of ob~ design of the plan to make the Senate a kind servation had seen in the democratic in such a situation of dependence on their branches of the state legislatures, precipita­ of bulwark to the independence of the States, several state legislatures, as will induce them and a check to the encroachments of the tion-in Congress, c:p.angeableness-in every to pay a constant regard to the good of their department, excesses against personal liberty, General Government, certainly the Members constituents; secondly, to oblige them to re­ private property, and personal safety. What of this body ought to be peculiarly under turn, at certain periods, to their fellow­ qualities are necessary to constitute a check the control, and in strict subordinatioz:i. to citizens, that, by mingling with the people, in this case? Abilities and virtue are equally the State who delegated them. In propor­ they may recover that knowledge of their necessary in both branches. Something tion to their want of dependence, they will interests, and revive that sympathy with more, then, is now wanted. In the first place lose their respect for the power from whom their feelings, which power and an exalted the check_ing branch must have a personal in­ they receive their existence, and, conse­ station are too apt to efface from. the minds terest in checking the other branch. One in­ quently, will disregard the great object for of rulers. terest must be oppo:;;ed to. another interest. which they are instituted. The idea of rota­ It has been urged that the senators should Vices, as they exist, must be turned again.st tion has been taken from the articles of the be acquainted with the interests of the each other • • • In the fourth place, an in­ old Confederation. It has thus far, in my states in relation to each other, and to foreign dependence for life involves the necessary opinion, operated with great advantage. The powers, and that they should remain in permanency. If we change our measures, power of recall, too, has been an excellent office, in order to acquire extensive political nobody will trust us; and how avoid a change check, though it has, in fact, never been information. If these were the only objects, of measures, but by avoiding a. change of exercised. The thing is of so delicate a na­ the argument would extend to the rendering men? ( 5 Elliot 270-271) • ture, that few men will step forward to move their dignity perpetual-an idea which a recall, unless there is some strong ground probably none of the gentlemen will consent Thursday, July 26, 1787. for it (2 Elliot 286, 289). to; but, if one third of the senators go out • • • • • Mr. R.R. LIVINGSTON. The amendment ap-. every two years, cannot those who succeed The proceedings since Monday last were pears to have in view two objects-that a them acquire information from the remain­ unanimously referred to the committee of rotation shall be established in the Senate, ing members; with respect to the relative in­ detail; and the Convention then unani­ and that its Members shall be subject to re­ terests of the states? It is to be presumed mously adjourned till Monday, August 6th, call by the State legislatures. It is not con­ that the Senate will be composed of the best that the committee of detail might have time tended that six years are too long a time for informed men, and that no such men will be to prepare and report the Constitution. The the Senators to remain in office. Indeed, this incapable of comprehending the interests of whole resolutions, as referred, are as follows: cannot be objected to, when the purposes for the states either singly or collectively. If it • • • • • which this body is instituted are considered. be the design of representation that the sense 4. Resolved, That the members of the sec., They are to form treaties with foreign na­ and spirit of the people's interests and feel­ ond branch of the Legislature of the United tions. This requires a comprehensive knowl­ ings should· be carried into the government, States ought to be chosen by the individual edge of foreign politics, and an extensive it is obvious that this design can be accom­ legislatures; to be of the age of thirty years at acquaintance with characters, whom, in·this plished in no way so perfectly as by obliging least; to hold their offices for six years, one­ capacity, they have to negotiate with, to­ our rulers, at certain periods, to relinquish gether with such an intimate conception. of their offices and rank. The people cannot be third to go out biennially; to receive a com­ our best interests, relative to foreign powers, represented by men who are perpetually sep­ pensation for the devotion of their time to as can only be derived from much experience arated from them (2 Elliot 291-294). the public service; to be ineligible to, and in this business. What singular policy, to cut Hon. Mr. Hamilton. • • • The zeal for incapable of holding, any office under the off the. hand which · has just qualified itself liberty became predominant and excessive. authority of the United States (except those for action. But, says the gentleman, as they In forming our Confederation, this passion peculiarly belonging to the functions of the are the representatives of the States, those alone seemed to actuate us, and we appear second branch) during .the term for Which States have a control. Will this principle to have had no other view than to secure they are elected, and for one year thereafter hold good? The Members of the lower House oursel~es from despotism. The object cer­ ( 5 ElUot 374-375). are the representatives of the people. Have tainly was a valuable one, and deserved our 40 CONGRESSIONAL RECORD - SENATE January 3 u t most attention; but, sir, there ls another nial change of Members is an excellent inven­ States ts found to change one-half of the object, equally important, and which our tion for increasing the difficulty of combina­ representatives. From this change of m en enthusiasm rendered us little capable of tion. Any scheme of usurpation will lose, must proceed a change of opinions; and from regarding: I mean a principle of strength every two years a number of its oldest advo­ a change of opinions, a change of measures. and stability in the organization of our gov­ cates, and their places will be supplied by an But a continual change even of good meas­ ernment, and vigor in its operations. This equal number of new, unaccommodating, and ures is inconsistent with every rule of pru ­ purpose could never be accomplished but by virtuous men. When two principles are dence and every prospect of success. The the establishment of some select body, equaily important, we ought, if possible, to remark is verified in private life, and becomes formed particularly upon this principle. reconcile them, and sacrifice. neither. We more just, as well as more important, in There are few positions more demonstrable think that safety and permanency in this national transactions. than that there should be, in every republic, government are completely reconcilable. To trace the mischievous effects of a mu­ some permanent body to correct the preju­ The State governments will have, from the table government, would fill a volume. I will dices, check the intemperate passions, and causes I have described, a sufficient influence hint a few only, each of which will be per­ regulat e the fluctuat ions, of a popular as­ over the Senate, without the check for which ceived to be a source of innumerable others. sembly. It is evident that a body instituted the gentlemen contend (2 Elliot 318-319). In .the first place, it forfeits the respect for these purposes must be so formed as to and confidence of other nations, and all the LUTHER MARTIN'S LETTER ON THE FEDERAL advantages connected with national charac­ exclude, as much as possible, from its own CONVENTION OF 1787 character, thm:e infirmities, and that muta­ ter. An individual who is observed to be in­ bility, which it is designed to remedy. It is, "The Senate, sir, is so constituted that they constant to his plans, or perhaps to carry on therefore, necessary that it should be small, are not only to compose one branch of the his affairs without any plan at all, is marked that it should hold its auth ority during a legislature, but, by the second section of the at once, by all prudent people, as a speedy considerable period, and that it should have second article, they are to compose a privy victim to his own unsteadiness and folly. such an independence in the exer cise of its council for the President. Hence, it will be His more friendly neighbors m ay pity him, powers, as will divest it,_as much as pm::sible, necessary that they should be, in a great but all will decline to connect their fortunes of local prejudices. It should be so formed measure, a permanent body, constantly resid­ with his; and not a few will seize the oppor­ as to be the centre of political knowledge, ing at the seat of government. · Seventy tunity of making their fortunes out of his. to pursue always a steady line of conduct, years are esteemed for the life of a man; it One nation is to anot her what one individual and to reduce every irregular propensity to can hardly be supposed that a Sen ator, espe­ is to another; wit h this melancholy distinc­ syst em. Without this establishment, we m ay cially from the States remote from the seat tion perhaps, that the former, with fewer of make experiments without end, but shall of empire, will a.ccept of an appointment the benevolent emotions than the latter, are never have an efficient government. which must estrange him for six years from under fewer restraints also from taking un­ his State, without giving up to a great de­ due advantage from the indiscretions of each • • • • • gree, his pro.spect.s in his own State. If he other. Every nation, consequently, whose Sir, the main design of the Convention, in has a family, he will take his family with him affairs bet ray a want of wisdom and stability, forming the Senate, was to prevent fluctua­ to the place where the Government shall be may calculate on every loss which can be tions and cabals. With this view, they made fixed; that will become his home; and there sustained from the more systematic policy of that body small, and to exist for a conS"id­ is every reason to expect that his future views their wiser neighbors. But the best instruc­ erable period. Have they executed this de­ and prospects will centre in the favors and tion on this subject is unhappily conveyed sign too far? The senators are to serve six emoluments of the general government, or years. This is only two years longer than the to America by the example of her own situa­ of the government of that State where the tion. She finds that she is held in no respect senators of this state hold their places. One seat of empire is established. In either case, by her friends; that she is the derision of third of the members are to go out every two he is lost to his own State" (1 Elliot 361). years; and in six, the whole body will be her enemies; and that she is a prey to every changed. Prior to the revolution, the repre­ THE FEDERALIST, NO. LXII nation which has an interest in speculating on her fluctuating councils and embarrassed sentatives in the several colonies were elected Thirdly. Another defect to be supplied by for different periods--for three years, for affairs. a senate lies in a want of due acquaintance The internal effects of a mutable policy are seven years, &c. Were those bod·ies ever con­ with the objects and principles of legisla­ sidered as incapable of representing the peo­ still more calamitous. It poisons the bless­ tion. It is not possible that an assembly of ing of liberty itself. It will be of little avail ple, or as too independent of them? There men called for the most part from pursuits is one circumstance which will have a tend­ · to the people, that the laws are made by men of a private nature, continued in appoint­ of their own choice, if the laws be so volu­ ency to increase the dependence of the sen­ ment for a short time, and led by no perma­ ators on the states, in proportion to the dura­ minous that they cannot be read, or so in­ nent motive to devote the intervals of public coherent that they cannot be understood; if tion of their appointments. As the state occupation to a study of the laws, the affairs, legislatures are in continual fluctuation, the they be repealed or revised before they are and the comprehensive interests of their promulgated, or undergo such incessant senator will have more attachments to form, country, should, if left wholly to themselves, and consequently a greater difficulty of changes that no man, who knows what the escape a variety of important errors in the law is today, can guess what it will be tomor­ maintaining his place, than one of shorter exercise of their legislative trust. It may be duration. He will, therefore, be more cau­ row. Law is defined to be a rule· of action; affirmed, on the best grounds, that no small but how can that be a rule, which is little tious and industrious to suit his conduct to share of the present embarrassments of the wishes of his constituents (2 Elliot 300- known, and less fixed? (The Federalist. America is to be charged on the blunders of Lodge, editor. New York, 1908, pp. 388-391.) 306). our governments; and that these have pro­ The Hon. Mr. HAMILTON. If the Members of ceeded from the heads rather than the hearts THE FEDERALIST, NO. LXm Congress are too dependent on the State of most of the authors of them. What in­ I add, as a sixth defect, the want, in some legislatures, they will be eternally forming deed are all the repealing, explaining, and important cases, of a due responsibility in secret combinations from local views. This amending laws, which fill and disgrace our the government to the people, arising from is reasoning from the plainest principles. voluminous codes, but so many monuments that frequency of elections which in other Their interest is interwoven with their de­ of deficient wisdom; so many impeachments cases produces this responsibility. This re­ pandence, and they will necessarily yield to exhibited by each succeeding against each mark will, perhaps, appear not only new, but the impression of their situation. Those who preceding session; so many admonitions to paradoxical. It must nevertheless be ac­ have been in Congress have seen these opera­ the people, of the value of those aids which knowledged, when explained, to be as unde­ tions. The first question has been, How will may be expected from a well-constituted niable as it is important. such a measure affect my constituents, and senate? Responsibility, in order to be reasonable, consequently, how will the part I take affect A good government implies two things; must be limited to objects within the power my reelection? This consideration may be in first, fidelity to the object of government, of the responsible party, and in order to be some degree proper; but to be dependent which is the happiness of the people; sec­ effectual, must relate to operations of that from day to day, and to have the idea per­ ondly, a knowledge of the means by which power, of which a ready and proper-judgment petually present, would be the source of nu­ that object can be best attained. Some can be formed by the constituents. The merous evils. Six years, sir, is a period short governments are deficient in both these objects of government may be divided into enough for a proper degree of dependence. qualities; most governments are deficient in two general classes: the one depending on Let us consider the peculiar state of this the first. I scruple not to assert, that in measures which have singly an lm.mediate body, and see under what impressions they American governments too little attention and sensible operation; the other depending will act. One-third of them are to go out at has been paid to the last. The federal Con­ on a succession of well-chosen and well­ the end of two years, two-thirds at four years, stitution avoids this error; and what merits {!Onnected measures, which have a gradual and the whole at six years. When one year particular notice, it provides for the last in and perhaps unobserved operation. The ls elapsed, there is a number who are to hold a mode which increases the security for the importance of the latter description to the their places for one year, others for three, first. collective and permanent welfare of every and others for five years. Thus there will Fourthly. The mutability in the public country, needs no explanation. And yet it not only be a constant and frequent change councils arising from a rapid succession of is evident that an assembly elected for so of Members, but there will be some whose new members, however qualified they may short a term as to be unabl~ to provide more office ls near the point of expiration, and be, points out, in the strongest manner, the than one or two links in a chain of measures, who, from this circumstance, will have a necessity of some stable institution in the on which the general welfare may essentially lively sense of their dependence. The bien- government. Every new election in· the depend, ought not to be answerab.le for the 1957 CONGRESSIONAL RECORD --- SENATE 'final -result, an-y more than a steward or APPENDIX III on the other side it was said there was no -tenant, engaged for one year, could be justly [Senate Print, 65th Cong., special session) House of Representatives. But in ·the true ·made to answer for places or improvements contemplation of the Constitution, the Sen­ which could not be accomplished in less than THE SENATE AS A CONTINUING BODY .ate, and the House, too, were supposed to be -half a dozen years. Nor is it possible for EXTRACTS FROM THE CONGRESSIONAL GLOBE RE• -in existence; for if the States had discharged :the people to estimate the share of influence LATING TO DEBATES IN THE CONGRESS OF THE their duties by the election of Members, they which their annual assemblies may respec­ UNITED STATES ON THE QUESTION OF THE were ready to form a House. The Senate and .tively ·have on events resulting from the SENATE AS A CONTINUING BODY the House were, in the contemplation of the mixed transactions of several years. It is (Prepared by the Legislative Reference Divi­ Constitution, continuous bodies; they were sufficiently difficult to preserve a personal sion, Library of Congress) ·not identical in the Members that composed responsibility in the members of a numerous them, but he hoped that, though theoreti­ _body, for such acts of the body as have an (Printed for the use of the Secretary of the cally always in existence, the acts and meas­ immediate, detached, and palpable operation Senate) ures of the Senate would depend on the com­ on its constituents. 1. Controversy over the Senate Printers in ponent Members that constitute the body. The proper remedy for this defect must be 1841 -By the Constitution the Senate had power, an addit ional body in the legislative depart­ A joint resolution of March 3, 1819, had exclusively of the House, of the President, or ·ment, ·which, having sufficient permanency provided that "as soon as this resolution any other authority, to elect its own officers. to provide for such objects as require a con­ shall have been approved by the President of They said that their Printer was an officer; tinued attention, and a train of measures, ·the United States, each House shall proceed. but he should not go over the · arguments may be justly and effectually answerable for to ballot for a Printer, to execute its work which had been urged with so much ability t he attainment of those objects (The Fed­ during the next Congress." (The resolution -by his friend from Delaware [Mr. Bayard] eralist, pp. 392- 393) . is reprinted in Congressional Globe, 26th and which stood unanswered to that day, that these Printers were officers." (Ibid., p. 237.) THE FEDERALIST, NO. LXIV Cong., 2d sess., v. 9, p. 238.) An amendatory joint resolution adopted in "Mr. WRIGHT. He had before referred to the • • • • • 1829 provided that "within thirty days before rules of the Senate, and he had ·stated what They who wish to commit the power under the adjournment of every Congress, each he supposed would not be controverted, that consideration to a popular assembly, com­ House shall proceed to vote for a Printer to those rules were as perfectly binding on that posed of members constantly coming and go­ execute its work for and during the succeed­ body as they were on the body which occu­ ing in quick succession, seem not to recollect ing Congress." _ (Reprinted ibid., p. 189.) pied those seats a week ago. Now, one of that such a body must necessarily be inade­ Accordingly, on February 20, 1841, during the those rules was, that 'When acting on confi­ quate to the attainment of those great ob­ 2d session of the 26th Congress, the Senate dential or executive business the Senate shall jects, which require to be steadily con­ ·elected Blair and Rives as its Printers for be cleared of all persons except the Secretary, templated in all their relations and circum­ the 27th Congress. (Ibid., p. 197.) the Principal or the Executive Clerlt, the Ser­ stances, and which can only b~ approached On March 4, 1841, the political complex­ geant at Arms and Doorkeeper, and the As­ and achieved by measures which not only ion of the Senate changed. (Ibid., p. 186.) sistant Doorkeeper.' Well, then, under their talents, but also exact information, and The Senate organized by reelecting its Pres­ rules they must assume to be acting legisla­ often much time, are necessary to concert ident pro tern. (ibid., p. 231), and sat in tively, a position which he undertook to show and to execute. It was wise, therefore, in · special session until March 14. The House they did not occupy after their organization the convention to provide, not only that the of Representatives duly adjourned sine die, for executive purposes." (Ibid., p. 237.) power. of making treaties should be com­ and was not in session after March 4. The Senate voted to take up for considera­ mitted to able and honest men, but also that On March 4, 1841, a resolution was intro­ tion the resolution to dismiss the Printers. they should continue in place a sufficient duced "That Blair and Rives be dismissed (Ibid., p. 238.) On March 8 the debate pro­ time to become perfectly acquainted with as Printers of the Senate for the 27th Con­ ceeded. James Buchanan, of Pennsylvania, our national concerns, and to form and in­ gress." (Ibid., p. 236.) On March 5 a mo­ contended that the Printers were not officers troduce a system for the management of tion to take up this resolution for consid­ of the Senate, but were entitled under a bind­ them. The duration prescribed is such as eration was debated at length. In February ing contract to do the Senate printing. But will give them an opportunity of greatly at the time of the election of the Printers ·what if they were officers? · extending their political information, and of it had been urged that the "next Senate" "Senators had contended that one Senate . rendering their accumulating experience should be allowed to elect its own printers. or one Congress had no right to elect officers more and more beneficial to their country. (Ibid., p. 186. . ) for their successors; and that, therefore, the Nor has the convention discovered less pru­ Mr. Allen, of Ohio: joint resolution violated the Constitution, dence in providing for the frequent elections "And as to the assertion that this was a because it gave the election of a Print er for of Senators in such a way as to obviate the new Senate, he denied the fact. The argu­ the next Senate to that which had expired on inconvenience of periodically transferring ment so much relied on in this discussion the 3d of March. This was as strange a posi­ those great affairs entirely to new men; for by and on which so much logic and reasoning tion as any which had been assumed through­ leaving a considerable residue of the old ones had been wasted in opposition to the elec­ out the argument. An old Senate and a new in place,- uniformity and order, as well as a tion of these Printers was untrue. There Senate. constant succession of official informati-on, · was no such thing as a new Senate known "There could be no new Senate. This was will be preserved (The Federalist, p. 402) • tG the Constitution of this Republic. They the very same body, constitutionally and in might as well speak of a new Supreme Court point of law, which had assembled on the THE FEDERALIST, NO. LXXVII as of a new Senate. There was a new House first day of its me~ting in -1789. It has existed It has been mentioned as one of the advan­ of Representatives because the entire House expired at the expiration of the second year without any intermission from that day until tages to be expected from the cooperation of the present moment, and would continue to the Senate, .in the business of appointments, and because the 4th of March terminated the life of that body. But not so the Senate. exist as long as the Government should en­ that it would contribute to the stability of dure. It was emphatically a permanent body. the administration. The consent of that The Constitution replenishes that body every -two years by the election of a class Its rules were permanent and were not body would be necessary to displace as well of -Senators, and thereby gives eternity to · adopted from Congress to Congress like those as to appoint. A change of the Chief Mag­ the duration of the body. There was no of the House of Representatives. For many istrate, therefore, would not occasion so vio­ new, nor was there any old, Senate. The years after the commencement of the Gov­ lent or so general a revolution in the officers same Senate, therefore, which elected Blair ernment its Secretary was a permanent officer, of the government as might be expected, if and Rives now without charge or allegation though our rules now require that he should he were the sole disposer of offices. Where a proposes to rescind the act, but he would be elected at stated intervals. The Senate man in any -station has given satisfactory not go into that." (Ibid., p. 236.) always had a President, and there were always evidence of his fitness for it, a new President Mr. Wright, of New York (as the Senate two-thirds of its actual Members in existence, - would be restrained from attempting a was in .special session and the House of and generally a much greater number. It change in favor of a person more agreeable to . Representatives was not sitting, the Senate . would be useless to labor this question. him, by the apprehension that a discounte­ could properly consider no other business Every writer, without exception, who had nance of the Senate might frustrate the .at- than nominations and treaties): treated on the subject had declared the Sen­ : tempt, and bring some degree -of discredit "He had never heard it pretended that -ate to be a permanent body. It never dies; . upon himself. Those who can 'best estimate the rules of the Senate are not perpetual . from Congress to Congress, unless they were and it was the sheet anchor of the Constitu­ , the value ·of a steady administration, will be changed by the body. The rules were not tion on account of its permanency. Sena­ _most disposed to -prize a prdvision which now changed; and what, then, were they tors were thus deprived of the poor apology connects the o'ftl.cial existence of public men ' doing? Why, they were debating this mat­ that one Senate had no right to bind its -with the approbation or- disapprobation of ter in violation o~ th_eir rlJ,les, and by their successors." (Ibid., p. 240.) that body which, from the greater perma­ action were asf!uming to _exercise legislative On March 9 the discussion was continued. nency- of its own· composition, will in' all powers." (Ibid., p. 236.) A resolution that it was not competent for probability be less subject to ·inconstancy · Mr. Henry Clay, of Kentucky: the &ln~te to annul the election and divest than any other member _of the government "It was contended on one side that the Sen­ the printers of their rights was voted down. - (The Federalist, pp. 476-47'7). -ate was a continuous, never-dying body, and (Ibid., p. 246.) -On March 10 the resolution 42 CONGRESSIONAL RECORD - SENATE January 3 to dismiss was again taken up. Mr. Sevier, whether or not the office of President pro under the Constitution and furnish him with of Arkansas: tempore could continue over into a new Con­ the constitutional and record authority also "It had been very properly said that this gress. to preside in this body • • •. Whenever was a permanent body, and that the election, On December 17, 1875, after the death of the Senate of the United States is not to­ whether before the 4th of March or after, the Vice President, Senator Edmunds intro­ gether in pursuance, if you p_lease, of an ad­ was good and valid. It had been acquiesced duced a resolution to proceed to the elec­ journment from yesterday or an adjournment in before, as he found on looking at the ayes tion of a President pro tempore on the 7th from the last term and we do not find the and noes." (Ibid., p. 250.) of January (Misc. Doc. 21, 44th Cong., 1st gentleman present who fills the office which Mr. Woodbury, of New Hampshire: sess.). the Journals of this body show that he is en­ "He was summoned here to a session of the January 10, 1876, Senator Morton, from titled to fill, our duty then, and it is our first Senate without the House of Representatives; the Committee on Privileges and Elections, constitutional and unavoidable duty, is to and, of course, a session for the transaction introduced four resolutions relating to the supply that record and supply the man to fill of executive business merely. This body was office of President pro tempore (CONGRES­ the place." a permanent one; and hence it was supposed SIONAL RECORD, vol. 4, p. 311). In the report March 20, 1889, Senator Butler introduced that no new officers were to be elected if no of the committee (S. Rept. 3, 44t h Cong., the following resolution (CONGRESSIONAL vacancies already existed." (Ibid., p. 251.) 1st sess.) it is stated (p. 2) : RECORD, V. 21, p. 37) : The resolution to dismiss Blair and Rives "The custom of the Vice President to "Resolved, That the tenure . of the Presi­ as Printers of the Senate to the 27th Con­ vacate the chair before the close of a session dent pro tempore does not expire at the gress was adopted by a vote of 26 to 18, on to enable the Senate to choose a President meeting of Congress after a recess the Vice March 11, 1841. (Ibid., p. 256.) This action pro tempore, did not begin until after the President having appeared to take the chair." tended to support the view that the Senate passage of the act of March 1, 1792, and was In discussing this resolution, Senator was a discontinuous body. obviously instituted to meet the contingency Reagan said (ibid., p. 46) : . But a vote to dismiss its printers was not contemplated in the act, by providing a "A great many of the precedents show that necessarily a vote that the Senate was dis­ President pro tempore of the Senate during the President pro tempore at the expiration continuous. One of the Senators who advo­ the vacations of that body. The Senate in of a Congress takes his seat at the com­ cated and voted for the dismissal, Henry contemplation of law, is a perpetual body, mencement of a new Congress. It is con­ Clay, of Kentucky, agreed with the opposi­ and the officers of the Senate are as much venient for the Senate to allow him to do so tion that the Senate was everlasting. (See its officers during its vacations as during for the purpose of organization; but it seems above.) And if the proponents of the dis­ its sessions." to me as a rule to be unjust and improper continuit y view were, in fact, more numer­ The report also cites 4 .cases where the for the reason I shall state. I know it is ous than its opponents, the reports in the office of President pro tempore ceased "at done upon the supposition that the Senate Congressional Globe (of which Blair and the meeting of the Senate after the first is a continuing body. So it is a continuing Rives were edit ors and publishers) wholly recess," and 49 where it did not. body with installments added every 2 years, fail to indicate itself. The first resolution proposed was (CON­ if I may use such an expression. At the 2. Office of President pro tempore GRESSIONAL RECORD, vol. 4, p. 311): end of each Congress it is presumed that "Resolved, That the tenure of office of Senator Collamer introduced in the Sen­ one-third of the Senate are new to their President pro tempore of the Senate elected position. It ought not to be that that one­ ate, August 5, 1861 (Congressional Globe, at one session does not expire at the meet­ 37t h Cong., 1st sess., p. 436), the following third of the Senate shall have no choice in ing of Congress after the first recess, the the selection of a President pro tempore." resolution: Vice President not having appeared to take "Resolved, That the President pro tempore The resolution was not acted upon. of the Senate, elected in the absence of the the chair." February 10, 1890, Senator Evarts, from the Vice President, holds his office, while a Mem­ Senator Merriman, discussing this reso­ Committee on Privileges and Elections, re­ ber of the Senate, until another is elected, lution, said: ported the following resolution (CONGRES- and executes the duties thereof whenever "I entertain the opinion that when the SIONAL RECORD, vol. 21, p. 1154): . the Vice President is absent." Senate elects a President pro tempore the "Resolved, That it_is competent for the He declared: Senator so elected may rightfully continue Senate to elect a President pro tempore, who "The object of this resolution is to declare to hold his office, unless his term as Senator shall hold the office during the pleasure of what I have understood to be really the law. shall sooner terminate or he shall be removed the Senate and until another is elected, and • • • It seems to me that, if any election for cause, until the Vice President shall re­ shall execute the duties thereof when the be made to last only while the Vice President turn to preside over the Senate, and in case Vice President is absent." is at that time absent, the election to the he shall fail to so return because of death In discussing this resolution Senator office must cease with the session. It is an or other cause, then until a new Vice Presi­ Evarts (ibid., p. 1717) referred to Senator absurdity to talk about the absence of the dent shall be elected and qualified. • • • Collamer's resolution of 1861, and also to Vice President when the Senate ls not sit­ The Senate is a perpetual body; it is created, the Morton report of 1876, which he said ting. • • • its powers are conferred, defined, and limited, raised the question-"whether a President "The law which provides, in accordance by the Constitution." pro tempore chosen at one session of the with the Constitution, who shall perform The resolution was unanimously adopted Se~ate should vacate that place, that post, the duties of President of the United States, (ibid., p. 316). Senator Sherman then re­ that office, at the opening of the next session in case of the death or resignation of both marked: or after the first recess of the Senate. This the President and Vice President, declares "I want to emphasize the matter. This committee were entirely of opinion, and that the President pro tempore of the Sen­ resolution is adopted unanimously. It is a there is now, I suppose, no difference in the ate shall officiate, or, if there be no Presi­ resolution that affects the organization of Senate on that point, that that did not dent pro tempore, the Speaker of the House the body for all time to come and establishes terminate the office of President pro tem­ of Representatives. It is very observable a precedent." pore. • • • It appears now that there is that that law necessarily implies that the January 12, 1876 (ibid., pp. 360-373), the left for consideration only this: Whether as Congress which passed it understood the Senate adopted this resolution: a matter of constitutional obligation it is place of President pro tempore to be a con­ "That the office of President pro tempore essential that the Senate should confine the tinuing office; that when elected, he re­ is held at the pleasure of the Senate." existence and authority of a President pro mained in until another was elected. True, October 10, 1881, Senator Garland, object­ tempore to the immediate occasion of the it might fall out that he might die; and so ing to the admission of new Senators until a particular absence of the Vice President on provision was made for the Speaker of the President pro tempore should be elected (the which he is elected. • • • No Senator can House of Representatives; but the necessary Vice President having become President of see more clearly than I do the very great implication from the law is that the office of the United States during the recess of the inconvenience of being dependent, entirely President pro tempore of the Senate is a con­ Senate) , said (CONGRESSIONAL RECORD, vol. 12, without a presiding officer, when a merely tinuing office." p. 507); casual, unexpected, and unannounced, and Senator Bayard opposed the resolution, "The Senate is a continuing body. It has yet necessary absence of the Vice President saying (ibid., p. 437) : Members enough whenever it may meet, in may require that there should be someone "If the Vice President does not return, legal contemplation, to transact its business." to take the chair." the occupant of the chair remains President June 23, 1882, while Senator Morgan was Senator Hoar supported the resolution, but pro tempore of the Senate, session or no addressing the Senate on the powers of the Senator George maintained that it was con­ session; because that is the natural infer­ presiding officer, Senator Maxey interjected trary to "the uniform, unbroken practice of ence from the duration of the office. He is the remark (CONGRESSIONAL RECORD, vol. 13, the Senate of the United States for a hun­ not elected President pro tempore during p. 5263): "The Senate is a perpetual body." dred years, and the uniform and unbroken the session of the Senate; he is elected Presi­ Thereupon Senator Morgan continued: practice of the House of Commons in Eng­ dent pro tempore during the absence of the "The Senate being a perpetual body, if the land for five hundred years." Vice President, and you can not assume the Journals show that we have a Presiding March 12, 1890, Senator George (ibid., p. Vice President will return until he again Officer selected under the Constitution, the 2144) stated: appears in the chair as President of the Sen­ Journals cannot show that any other person "At all times, and in every conceivable ate." can convene the Senate and call it to order way in which the question could be raised, No vote was taken on Senator Collamer's and organize it as a legislative body except it was uniformly decided until 1861, without resolution, and there was no discussion as to that person, until we supply another man dissent on the part of anyone, that the Presi- CONGRESSIONAL RE<;:ORD _~SENATE 43 dent pro tempore of the Senate held his lowing resolution {QON·GRESSIONAL RECORD, ,. Sena-tor Sherman said (ibid., p. 433) : office, as the words themselves mean. during vol. 4, p. 309) : "The rules of the House of Representa­ that particular absence of the Vice Presi• "Resolved by the Senate {the House · of tives, I believe it is conceded on all hands, dent for which he was elected. • • • Down Representatives concurring), That the joint expire with _the Congress. There can be no to the present time the practice of the Sen:­ rules of the Senate and House of Represent­ doubt about that, because that has been ate has conformed to the original interpre­ atives in· force at the close of the last .ses­ the universal practice of the Government, I tation placed upon the Constitution, as I sion of Congress be. and the same are hereby, believe, from the beginning. While I was a have stated it to be." adopted as the joint rules of the two Houses Member of the House there were two or three Senator George then reviewed the various for the present session." important occasions when, before the House elections of a President pro tempore from Senator Hamlin, in supporting the resolu­ was organized, it was held that there were 1789 to 1869, and~oncluded (p. 2145): tions, said: no rules.- By the established practice of the "At the expense of frequent elections, at "The· Senate has its rules. The Senate is Government from the beginning to this hour the expense of changing the occupant of the an existing body, and its rules .exist with it has been held that the rules of the House chair as frequently as 10 or 12 days apart, the . body. The House of Representatives is -Of Representatives expire with the Con­ with one uniform consensus of opinion, with a body which expires once in two years, and gress, and that no law can operate to· extend a uniformity of practice which is without a its rules expire, of course, with each expir­ the rules from one Congress to another, be;.. single break for a hundred year·s. the judg­ ing Congress." cause that would be to violate the Constitu­ ment of the Senate has been that the Presi­ Senator Bayard, speaking on the same res­ tion itself. In this respect the rules of each dent pro tempore ·elected in the absence of olution January 17, 1876, said (ibid., p. 431.): House are precisely alike. the Vice President vacates his office upon "The· question comes at once whether a "The rules of the Senate are no more op.­ the return of that officer." joint rule adopted by the two Houses falls erati ve than the rules of the House of Rep­ Senator Turpie (ibid., p. 2150) intro­ and becomes void by the expiration of the resentatives. We have the power to change duced an amendment to change the resolu­ Congress in which that rule was adopted. So them at any moment. It is said that this tion to the following form: far as the Senate is concerned, it will not, I body is a continuous_body; but these rules "Resolved, That it is competent for the think, be suggested, because this ls a con­ need not be written out in the form of rules Senate to elect a President pro tempore who tinuing body: there is always and at all times prescribed in set phrases. I have come, shall hold the office during the pleasure of a quorum continuing from one Congress to therefore, to the conclusion that 1t· is not the Senate and until another is elected, and another. It is not so with the House of Rep­ necessary, so far as the joint rules or the shall execute the duties thereof during all resentatives, the termination of whose legal rules of the Senate are concerned, to take future absences of the Vice President until existence is at the end of every two years. any action at the beginning of each Con­ the Senate shall otherwise order." • • • So far as the Senate is concerned, we gress, simply because the joint rules ex­ In reply to Senator George he said: all know that the Senate's rules continue, pire by the expiration of Congress. It is not "I think the unbroken practice or custom but the question is what effect the different necessary for us to continue any of our rules, which he speaks of is owing to the fact that constitution of the other House of Congress to adopt the usual resolution of the House the question has not been discussed, and has upon .a joint rule." at the beginning of every Congress. I be­ there has been no determinative or affirma­ Senator Merriman .stated: lieve the joint rules will ·be continued with­ tive decision on the construction of the Na­ "The long experience of our Chief Clerk, out any such action. The Senate itself is a tional Constitution herein." embracing about 38 ye~rs, knows of no excep­ permanent body, and all the rules which af­ The resolution was adopted as amended tion; and, as far as he has been able to learn fect the, Senate continue until changed by by Senator Turpie without division March on ·examination; there has been no exception the action of the Senate." 12, 1870 (ibid., p. 2153). Nothing was said to the practice that the joint rules continue Senator Kelly said (ibid., p. 434): · in the discussion as to whether or not the from Congress to Congress on the part of the "The Senate has never considered it neces­ office of President pro tempore under the Senate. But when the matter was brought to sary to adopt the rules of a previous Con­ resolution would expire with the Congress the attention of the Committee on Rules we gress, probably for the reason which has been during which he was elected. could not .see how any rule, whether joint or stated, that it ls always an organized body· March 2, 1891, Senator Charles F. Mander­ otherwise, of one Congress could be bin