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can be based only on inefficiency or malfeasance. The effect of an additional assurance of this sort would be important in building a career service for the professional staffing of Congress. A personnel office, if no more than a convenient place for filing applications and records--but preferably for the rating and certification of prospective professional employees-Would be of major advantage to the Congress. Additional office space, the possibility of increased staffs in some cases, and enlarged facilities for staff work are other important matters which should claim the early attention of Congress.

The CHAIRMAN. Professor Burdette, granting the desirability of changing the rules so as to prevent filibustering, how do you suggest that we go about changing the rules, when any motion to that effect would promptly precipitate a filibuster? Furthermore, we have the difficulty of preventing filibusters over decisions of the Chair. Suppose the Chair, even in an effort to help a majority of the Senate achieve its purpose, makes an arbitrary ruling, or any kind of a ruling, you promptly precipitate a filibuster over the ruling of the Chair itself, and that can go on indefinitely. Have you any suggestions as to how to eliminate that-I won't say "time honored”-custom, but it has gone on for some time and filibusters of recent years, I believe, have been on decisions of the Chair and have not even reached the subject matter nor the subject itself?

That seems to be the stumbling block in the way of amending the rules so as to prevent unwarranted filibusters. Senators can filibuster on anything, and a half dozen determined men can filibuster indefinitely and stop all the work of Congress until the majority yields and gives up any effort to achieve their purpose, however righteous it may be.

Professor BURDETTE. I think, Senator, that any attempt to change the rules of the Senate would have to be agreed upon by a group representing a majority of the Senate; that is, I think it would have to be a matter of policy acceptable to a majority, and the timing would have to be acceptable, in the sense that there should be sufficient time to allow for some delay. I believe there should be some delay in order to hear all sides of the question. Therefore, at a time near the end of the session, or perhaps before an election-speaking of an election in the sense of taking Senators away from their legislative duties in many cases-action might be difficult. The present session might be a poor one to undertake such a program. But I am thinking that in the event a change in the rules should be introduced, there are two procedures which could be followed.

First, if the majority should desire to enforce the present rules rigidly, the minority would be required to be present on the floor practically day and night, and the smaller the number filibustering, actually precipitating the filibuster, the more inconvenient it would be. The majority probably could get a great deal of sleep by making an arrangement for representatives to remain on the floor. İf the minority gets started on quorum calls, those who must answer the quorum calls would simply have to be waked up until the emergency is passed. But unless a majority is going to be willing to enforce the present rules to the inconvenience of the minority, I think the program would not work.

Secondly, I think there might be a possibility under the rules for the application of cloture on a change of the Senate rules. That might be a debatable parliamentary question. It probably is not, under present rules, possible to put cloture upon a question of personal privilege or upon a purely parliamentary issue. I think, Senator, that the enforcement of the Senate rules would be the key to success at the time when the program is to be adopted.

Senator THYE. Professor Burdette, on the question of enforcement of the Senate rules, to what rules do you have reference?

Professor BURDETTE. Primarily, the rule that no Senator-at least, the rule which has been imbedded in precedent—that no Senator may yield except for a question. While in practice the yielding is very frank and open, a Senator who is compelled to remain on the floor until he is going to give up one of his two opportunities to speak on the same question in any one legislative day will be very heavily bound by the effect of parliamentary procedure. If the majority planning strategy for this arrangmeent should decide that it would refuse to adjourn but at the end of every calendar day take a recess, the same legislative day would prevail and, therefore, no Senator could speak more than twice on the question without consent of the body, and if he should yield for anything but a question, he would begin his second speech. I am sure that the rule generally is not enforced but it is exceedingly inconvenient when it is enforced.

The CHAIRMAN. That is an easy rule to circumvent by offering a simple amendment. Then each Senator can speak twice to the amendment.

Professor BURDETTE. Yes, sir.

The CHAIRMAN. Enforcing the rule of relevancy might have a tendency to reduce the length of time that some Members occupy in speaking.

Professor BURDETTE. I am not at all convinced, Senator Aiken, that the rule of relevancy can or ought to be enforced. If I may make an observation on that point first, I think it was Vice President Calhoun--though I may be mistaken about the particular Vice President-who began the precedent that anything is relevant. So far as I know, there really isn't anything in the rules on relevaney. There is the matter of relevancy in Jefferson's Manual, but the Senate practice for a hundred years has been that you can't tell whether a subject is relevant until you have heard it. I have been very strongly impressed with that argument.

I do think, Senator Aiken, that there is one other point which gives hope to those who want to change the rules, who are facing the concrete danger of filibuster which you express, and that is that the number of Senators who are, let us say, parliamentary bandits in the true sense, is very limited. The number of Senators who would participate in a long filibuster over anything except what they regarded as a life-and-death struggle, it seems to me, would be limited. The more narrowly limited the number is, the easier it would be to put through what a majority wants to do.

Senator HICKENLOOPER. I would like to suggest that in making rules you cannot go on the anticipation of human nature. Your rule must be one that will control under any possible contingencies. I mean that would be the ideal rule. You cannot rely upon the fact that a certain number of Senators will not take part in a filibuster. The ideal rule would be one that would control under all possible conditions. Professor BURDETTE. I am afraid I did not make myself quite clear, Senator Hickenlooper.

Senator HICKENLOOPER. Practically, I agree with you that in most instances many Members of the body would not participate in a filibuster at all, but I have seen illustrations where some of the loudest objectors to filibusters have in turn, when their ox was being gored, turned around and indulged in most extensive filibustering. I mean the reliance upon people objecting to filibuster as an indication that they will not use it has been disproved, and disproved very recently so that the search for a rule that will do the job is a search for a rule that will control against all possible foreseeable, even remote contingencies.

Professor BURDETTE. Yes. I thought perhaps I had not made myself clear, but I was speaking directly to Senator Aiken's objection that no change in the rule could be effective because of filibustering. But as to your statement, I do thoroughly agree and I think it is one of the strong arguing points for cloture. I understand from the newspapers that some proposed legislation might be passed this session through the application of cloture because not enough votes are available to defeat cloture. I make the point that if the Senators who are opposed to controversial legislation before this session lose on the cloture motion, they can still defeat it by filibuster. I do think that, first, many of them do not know the parliamentary techniques, do not care to know them to the extent necessary; and, second, would not want to be involved in them even if they considered them practicableand that probably the Senate minority would not actually defeat legislation unless it came to genuinely bitter differences.

Senator HICKENLOOPER. Let me suggest this: I think without doubt proof could be found that on occasion, a filibuster by a minority, or even a small minority, on a matter where they were very unpopular at the time the filibuster started, has probably seen some of the country swing ducing the time of that filibuster until those who were originally in the minority may have found themselves in the majority before the session was over. That may not be the rule at all, but I think proof could be developed along that line that there have been cases when that occurred, that those who are against cloture and who support the theory of filibuster can often bring up the powerful argument to say:

“Well, there are a number of instances on important issues where, when the facts have been fully developed by the minority that advances the facts, when they have been developed in the light of analysis, the country has changed its mind on the subject and becomes convinced on the other side, and, therefore, great latitude to the minority to exhaust its views and completely present its case should be given in the interest of looking thoroughly into very fundamental issues that come up,” I mean how will you meet that argument?

The House of Representatives, of course, has developed a rule which, undoubtedly, is practical and practicable under all circumstances with four hundred and some members and the necessity of getting work done, but certainly it is a most drastic restriction, on occasion, upon the very exhaustive investigation of a subject on the floor by debate. The Rules Committee can come in and say, "We will give you 15 minutes for debate on this floor and then we will vote.”

We probably have two extremes there. You can have unlimited debate, which at times causes lots of restlessness, and maybe justifiably so; on the other hand, you have a minority in the House that screams to high heaven about gag rule and everything else when they are only given an hour to debate an issue before it comes to a vote automatically under the rules.

It is not an easy problem and I think Senator Aiken raised some of the practical mountains that lie in the path to real corrective measures.

Professor BURDETTE. To my mind, Senator, there is an answer to the difficulty which you raise. You have really raised more than a difficulty; it is a very serious argument in favor of unlimited debate in the Senate. I think the answer is found in the need for a long extended period of free debate, short of an unlimited filibuster in the face of strong majority sentiment.

I think the argument can also be brought up, even more strongly than

you have cared to put it, that the possibility of obstruction may actually be the difference between civil obedience and civil disobediance in some sections of the country. To my mind, this question of cloture does not destroy that check or safeguard which obstruction gives to embattled minorities. The embattled minorities, if they are really bitterly opposed to a measure at heart instead of in theory, or for the newspapers, can still obstruct. I think that the constitutional clause which will in practice enable one-fifth of the Senators present to defeat anything before the Senate is safeguard enough for obstruction.

Senator HICKENLOOPER. Let me ask you this: In practical experience--I mean I have this impression and I don't know whether it is right or not-I have been impressed at times with the complete lack of discussion that may be material to the issue, even at times when very important matters were being considered, but has any filibuster ever been successful in our legislative history that has not had an approximate deadline to work against, in other words, adjournment, or something of that sort-well, say, an appropriation bill that must be passed by the 1st of July, when the fiscal year begins? Let us say adjournment has already been set for a certain time. A filibuster within a reasonable period before that time can operate against that deadline. Can you recall offhand any filibuster that has not exhausted itself within a week or two, let us say, when it did not have a deadline to work against? And the question then arises: In those circumstances, is it better to give a majority complete opportunity to say that no rights of expression or exposure or discussion have been curtailed—is it better to lose a little time, a few days, perhaps and preserve those rights than it is to choke off discussion and raise the cry of oppression, gag rule, and all the rest of those things?

Prof. BURDETTE. Senator, in the past, filibusters have gone on for more than a month, but I doubt whether they will do so in the immediate future because legislative business is under greater pressure than it used to be. In other words, the deadlines are always present, and a majority must give up something in its legislative program if it insists upon trying to wear down a filibuster. I think we could not now say that a filibuster which really had, let us say, a third of the membership or close to a third supporting it would wear down before the majority would have to give up.

Senator HICKENLOOPER. Of course, you touched a moment ago on a device that, so far as I know, has always been effective in breaking a filibuster if it is used, and if there is no approximate deadline, and that is the device of continuous session. Now, a continuous session or lack of a continuous session is not in the control of the minority. The question of continuous session can be determined by the majority of the body, whatever it is. Therefore, I have thought many times that if, as you said a moment ago, a majority were determined to stay in continuous session that has been done on a few occasions that I know of-if the majority is willing to stay in continuous session, the filibuster of a minority without a deadline just peters out. It may go on for an extensive period of time, but there is a point of human exhaustion that is reached after a while. So I feel that sometimes we do not use all of the weapons that we have to bring a matter to a perfectly justifiable conclusion. And I am not against the alteration of the rules to accomplish some of these changes that would speed up these things at times. I am not one who would stand for filibusters that are pure filibusters, not at all, but there are some very practical problems on both sides of this thing, and there are some very basic protections that I think must be considered.

Prof. BURDETTE. I agree with you, Senator.
Senator HICKENLOOPER. That is all I have, Mr. Chairman.

The CHAIRMAN. What do you think of a filibuster designed to achieve a temporary purpose? For instance, a potential majority may find itself in the minority in a Congress for lack of public support on some measure, or there might be instances where the minority feels that public pressure would sway the majority if the public were informed of the actual facts. We had a case in the last session where Senator Taylor and Senator Morse spoke for 18 hours or so continuously in order to prevent a vote being taken upon the subject before Monday. I believe the filibuster occurred on Friday and Saturday and they were successful. Of course, they lost their vote, but they were successful in preventing a vote before Monday. Was a filibuster of that nature justifiable, in your opinion? And if we enact legislation to block filibuster by simply a majority vote, would we be committing an injustice?

Professor. BURDETTE. Under some circumstances, I think, such filibusters might be justifiable, but I would contemplate the impossibility of applying cloture so rapidly or making it effective so quickly as to shut off all Senators.

I rather like the suggestion made in earlier hearings before another committee that Senators might yield some of their time to their colleagues in order to take care of a problem such as you raise. Debate ought not to be shut off by the sheer inertia of Senators who do not care to talk, but who leave to two or three colleagues willing to talk the impossible burden of carrying on in the face of an early cloture.

I do feel, Senator Aiken, that there is a problem we haven't touched on at all. A great deal of important legislation which a very large majority of Congress may want does not come up at all because people say there would be a filibuster. A majority tends to say, Why bother, unless we have 3 months to give to it? And since we don't have 3 months to give to it, give it up."

I think something ought to be done about that. I would at once agree with all of you Senators who have expressed the view that protections are needed for free speech and for full discussion, but I think also that protections are needed for action.

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