National Affairs: BATTLE OF THE SENATE

Rule XXII Preserves the Filibuster

As the 86th Congress convenes this week, Senate liberals of both parties see in the 1958 Democratic electoral sweep a mandate for civil rights legislation. But the path to civil rights—and, in fact to any legislation that a minority wants to fight to the death—is blocked by the prospect of filibuster. The liberals’ first major effort, therefore, is aimed at changing U.S. Senate Rule XXII—under which it is virtually impossible to get cloture, i.e., to close off filibusters. What the Rule XXII fight is about:

Background. Until 1917, the Senate had no real cloture rule. In March 1917 a band of eleven Senators led by Progressives Robert La Follette of Wisconsin and George Norris of Nebraska filibustered to death President Wilson’s request for permission to arm U.S. merchantmen against German submarines.* When Wilson called the Senate into extraordinary session, an outraged majority, led by Montana’s Democratic Senator Thomas J. Walsh, imposed a rule under which debate could be ended by two-thirds of the Senators voting. But the new rule had a fatal flaw: it provided a method for cloture on any Senate measure—but not on a motion to consider the measure. That meant a motion to consider any bill or resolution could be endlessly filibustered. In 1949 Senate liberals put up a hard fight to get a workable cloture rule. The result was today’s Rule XXII.

The Hard Way. Rule XXII does apply to motions as well as measures—but the liberals paid a heavy price for that concession in at least two ways:

1) To cut off debate, Rule XXII now requires the votes of two-thirds of the Senators “duly chosen and sworn”—a hard-to-get 66 votes in the 98-member Senate of the 86th Congress.

2) Inserted into Rule XXII almost unnoticed during the 1949 battle was a gimmick written by Georgia’s Democratic Senator Richard Russell. It provides that Rule XXII’s cloture provisions “shall not apply to any motion to proceed to the consideration of any motion, resolution, or proposal to change any of the Standing Rules of the Senate.” Translation: there can be no cloture on any debate about changing Senate rules, including Rule XXII. It is the Russell Amendment that shapes the strategy of the attack against Rule XXII.

The Attack. The strategy of 1959 revolves around the question of whether the Senate, with two-thirds of its membership holding over from election to election, is a “continuing body.” If not, then its rules cannot go over from Congress to Congress. Along that line of reasoning, the opponents of Rule XXII worked out the following steps:

1) At the session’s outset, they move that the Senate adopt rules for the 1959 session, as it would plainly have to do if it were not a continuing body. New York’s Republican Senator Jacob Javits. New Jersey’s Republican Senator Clifford Case, Minnesota’s Democratic Senator Hubert Humphrey and Illinois’ Democratic Senator Paul Douglas last week presented a brief to the Senate’s presiding officer, Vice President Richard Nixon, making the liberal case that the Senate is not a continuing body. Basis of their argument: The Constitution provides that “each House may determine the rules of its proceedings.” This means, they hold, that each House can adopt its own rules in each Congress. Their proof: the House of Representatives does so, and “the identical constitutional provision cannot reasonably be given a different interpretation as applied to the Senate.” The anti-filibuster leaders argue that the Russell Amendment was an improper effort by the 81st Congress to impose its rules on all succeeding Senates.

2) The backers of Rule XXII, still headed by Georgia Democrat Russell, can counter with either a motion to table (i.e., kill) the rules-changing motion, or a point of order. A motion to table is decided by a simple majority vote. A point of order is decided by the Senate’s presiding officer—Vice President Nixon. Once he rules, the defeated side can appeal to the Senate, which can approve or reject the Vice President’s decision by a simple majority vote.

3) If the anti-filibuster forces win the crucial majority vote, the Senate presumably operates for a time without its old rules and under general parliamentary procedure—where debate can be ended by a simple majority. The anti-filibuster group simply submits its set of rules with Rule XXII rewritten to make cloture easier. The vote on adoption would be by simple majority.

The great advantage to such strategy is that it bypasses the Russell Amendment to Rule XXII. The major drawback is that it forces the issue not on the question of the filibuster, but on whether the Senate is a continuing body. In the past, the appeal of sitting in the selfsame, continuing Senate as Webster. Clay and Calhoun has been too compelling for many a Senator otherwise sympathetic to civil rights causes.

*Wilson finally did it by executive order.