UNITED STATESJ/j'

OF AMERICA

(tongressional Recordd

PROCEEDINGS AND DEBATES OF THE 92 CONGRESS

FIRST SESSION

VOLUME 117-PART 2

FEBRUARY 2, 1971, TO FEBRUARY 11, 1971

(P}l<7ES 1339 1rO 2740)

UNITED STATES <70VERNMENT PRINTIN<7 OFFICE, WASHIN<7TON, 1971

February 5,1971 CONGRESSIONAL RECORD - SENATE 1915(b) State and local review of agency pro­

cedures, . regulations, and policies for theadministration of Federal programs of as­sistance to State and local governments willbe conducted pursuant to procedures estab­llshed by Office of Management and [Bureauof the] Budget Circular No. A-a5.

(c) Where these procedures are not appro­priate and where the proposed action affectsmatters.withln their jurisdiction, review ofthe proposed action by State and local agen­cies authorized to develop and enforce en­vironmental standards and their commentson the [draft environmental statement] en­vircmmental impact of the proposed actionmay be obtained directly or by [publicationof a summary notice in the Federal Register(with a copy of the environmental state­ment and comments of Federal agenciesthereon to be supplied on request). Thenotice in. the Federal Register may specifythat comments. of the relevant State andlocal agencies must be SUbmitted Within 60days of pUbllca.tlon of the notice.] distribut­ing it to the appropriate State, regional andmetropolitan clearinghouses.

[10.] 9. Use of statements in agency reviewprocesses; distribution to Council on En­vironmental Quality.

. (a) Agencies will need to identify at whatstage or stages of. a series of actions relatingto a partlcu1armatter the environmentalstatement procedures of this directive Willbe applied. It will often be necessary to usethe. procedures both in the development ofa national program and in the review ot pro­posed projects Within the national program.However, where Il.. grant-in-aid program doesno~ entail prior approval by Federal agenciesof specific projects, the view of Federal,State and local agencies in the legislative.and possibly appropriation, process may haveto sumce. The principle to be applied is toobtain views of other agencies at the earliestfeasible time in the development of programand project proposals. Care shoUld be exer_cised so as not to duplicate' the clearanceprocess; but when actions being considereddiffer significantly from those that have al­ready been reviewed an environmental state­ment should be prOVided.

(b) [Seven (7)] Ten (10) copies of draftenVironmental statements (when prepared),[seven (7») ten (10) copies of all commentsreceived thereon (when received), and [seven(7») ten (10) copies of the final text of en­Vironmental statements should be supplledto the Council on Environmental Quality inthe Executive Omce of the President (thiswill serve as making environmental state­ments available to the President).

It is important that draft environmentalstatements be prepared and cirCUlated forcomment and furnished to the Council earlyenough in the agency review process beforean action is taken In orde~ to permit mean­ingful consideration of the environmentalissues Involved. To the fullest extent pos­sible, no administrative action SUbject toSection 102(2) (C) is to be taken sooner thanninety (90) d.ays after a draft enVironmentalstatement has been cirCUlated for comment,furnished. to the Council and made availableto the public pursuant to Section 12 of thesegUidelines, or sooner than thirty (30) daysafter the final text Of a statement (togetherWith comments) has been made available tothe Council and the public. With respect torecommendations or reports on proposals forlegislation to which. Section 102(2) (C) ap­plies, the final text of th.e environmentalstatement shOUld be available to the Con­gress and. the public in advance of any rele­vant Congressional hearings.

11. Application of section 102 (2) (C) proce­dure to existing projects and programs. Tothe fullest extent possible the section 102(2) (C) procedure should be applied to fur­ther major Federal actions having a signif­icant effect on the environment even thoughthey arise from projects or programs initiated

prior to enactment of [Publlc Law 91-190]the Act on January I, 1970. Where it is notpracticable to reassess the basic course of ac­tion, it Is still important that further incre­mental major actions be shaped so as tominimize adverse environmental conse­quences. It is also important In further ac­tion that account be taken of environmentalconsequences not fully evaluated at the out­set of the project or program.

12. Availability of environmental state­ments and comments to publlc.

(a) in accord with the policy Of the Na­tional Environmental Policy Act and Execu­tive order 11514 agencies have a responsi­bility to develop procedures to ensure th.efullest practicable provision Of timely publicinformation and understanding Of Federalplans and programs with enVironmental im­pact in order to obtain the views Of inter­ested parties. These procedures shall include,whenever appropriate, provision for publichearings, and shall provide the public withrelevant information, including informationon alternative courses of action.

(b) The agency which prepared the en­vironmental statement is responsible formaking such statement and the commentsreceived available to the public pursuantto the provisions of the Freedom of In­formation Act (5 U.S.C. sec. 552) Withoutregard to the exclusion of inter-agilncy mem­oranda therefrom. With respect to recom­mendations or reports on proposals for legis­lation, the enVironmental statement andcomments should be made available to thepublic at the same time they are furnishedto the Congress. With respect to administra­tive actions, except where advance public dis­closure will result in significantly increasedcosts of procurement to the government, thedraft environmental statement should bemade available to the public at the sametime it is circulated for comment and fur­nished to the Council, and the final text ofthe statement and comments received shouldbe made ava'lable to the public when fur­nished to the Council. Agencies which holdhearings on proposed administrative actionsor legislation should make the draft environ­mental statements available to the p1tblicfifteen (15) days prior to the time of therelevant hearings. Agencies shall instituteappropriate procedures to implement thoserequirements for pUblic availability of en­vironmental statements and commentsthereon. These shall include arrangementsfor availability Of the draft and final textsof envimnmental statements and commentsat the head and appropriate regional officesof the responSible agency and at appropriateState, regional and metropolitan clooring­houses.

[l3. Review of existing authority, policiesand procedures in light of National Environ­mental Policy Act. Pursuant to section 103 ofthe Act and section 2 (d) of Executive Order11514, all agencies, as soon as possible, shallreview their present statutory authority, ad­ministrative regUlations, and current policiesand procedures, inclUding those relating toloans, grants, contracts, leases, licenses, cer­tificates and permits, for the purpose ofdetermining whether there are any deficien­cies or Inconsistencies therein which prohibitfull compliance with the p~oses and pro­visions of the Act. After such review eachagency shall report to the Council on En­vironmental Quality not later than Septem­ber 1, 1970, the results of such review andtheir proposalS to bring their autho~ity andpolicies into conformity with the intent,pu~oses and procedures set forth in theAct.] [14] 13. Supplementary guidelines,evaluation of procedures. (a) The Councilon Environmental Quality after exam1n1ngenvironmental statements and agency pro­cedures with respect to such statements willissue such supplements to these guidelinesas are necessary.

(b) Agencies will continue to assess their

experience in the implementation of the sec­tion 102(2) (C) provisions of the Act andin conforming ,vith these guldelines andreport thereon to the Council on Environ­mental Quality by December I, [1970) 1971,such reports should include an Identificationof problem areas and suggestions for revisionor clarification of these guidelines to achieveeffective coordination of views on environ­mental aspects (and alternatives, where ap­propriate) of proposed actions without im­posing unproductive administrative proce­dures.

RUSSELL E. TRAIN,Chairman.

CONCLUSION OF MORNINGBUSINESS

Mr. BYRD of West Virginia. Mr. Presi­dent, I ask that morning business beclosed.

The ACTING PRESIDENT pro tem­pore. Without objection, it is so ordered.The time for morning business has ex­pired.

AMENDMENT OF RULE XXII OF THESTANDING RULES OF THE SENATE

The ACTING PRESIDENT pro tem­pore. The Chair states that the pendingquestion is on agreeing to the motion ofthe Senator from Alabama (Mr. ALLEN)to postpone until the next legislative daythe consideration of the motion of theSenator from Kansas (Mr. PEARSON) thatthe Senate proceed to the considerationof Senate Resolution 9, a resolution toamend rule XXII of the Standing Rulesof the Senate with respect to the limita­tion of debate.

Mr. BYRD of West Virginia. Mr. Presi­dent, I suggest the absence of a quorum.

The ACTING PRESIDENT pro tem­pore. The clerk will call the roll.

The assistant legislative clerk proceed­ed to call the roll.

Mr. BYRD of West Virginia. Mr. Presi­dent, I ask unanimous consent that theorder for the quorum call be rescinded.

The ACTING PRESIDENT pro tem­pore. Without objection, it is so ordered.

Mr. ALLEN. Mr. President, I 3sk unani­mous consent that I may speak on thepending measure at this time, notwith­standing the provisions of rule XIX.

The ACTING PRESIDENT pro tem­pore. Without objection, it is so ordered.The Senator from Alabama is recog­nized.

Mr. ALLEN. I thank the Chair.Mr. President, it was necessary that I

ask unanimous consent that I be allowedto speak at this time, notwithstandingthe provisions of rule XIX, because thejunior Senator from Alabama has al­ready spoken twice on this subject dur­ing the present legislative day. This leg­islative day has been in existence sinceTuesday of last week, possibly sinceMonday of last week. At the end of eachsession of the Senate, at the close of theday, instead of the motion being madethat the Senate adjourn to the next day,we have recessed until the next day,thereby continuing the same legislativeday in force and effect. So, while thejunior Senator from Alabama spoke onthis question yesterday and on two oc­casions before that, all these speecheshave been in the same legislative day.

1916 CONGRESSIONAL RECORD-SENATE Febr.u(Lry5,d971So it was necessary that he ask permis­sion to proceed. notwithstanding the factthat he alreadY has had the allottednumber of speeches on this subject.

Mr. JAVITS. Mr. President, is that aunanimous-consent request?

The ACTING PRESIDENT pro tem­pore. The unanimous-consent requestwas asked and already has been grantedfor the Senator from Alabama to be rec­ognized, despite the provisions of ruleXIX.

Mr. JAVITS. Mr. President, will theSenator yield to me very briefly?

Mr. ALLEN. For what purpose?Mr. JAVITS. Simply to make a com­

ment--without losing his right to thefloor.

Mr. ALLEN. A germane comment?Mr. JAVITS. Yes.Mr. ALLEN. Mr. President, I yield,

provided I do not lose my right to thefloor and that the resumption of my re­marks will not be considered a secondspeech.

The ACTING PRESIDENT pro tem­pore. Without objection, it is so ordered.

Mr. JAVITS. The Senator from NewYork gathered that the unanimous con­sent was to be made. He did not gatherthat it had been made. But the Senatorfrom New York had no intention to ob­ject, except to remind the Senator fromAlabama that on a previous occasion hehad, quite properly, invoked the rule toput into his seat and take off the floorthe Spnator from Arkansas (Mr. FuL­BRIGHT) by the invocation of this rule. Ijust hope that we have a credit of atleast one from the Senator from Ala­bama.

Mr. ALLEN. I thank the distinguishedSenator from New York for his remarks.It was the very incident that the Sen­ator referred to that caused the juniorSenator from Alabama to make this re­quest, so that he would be allowed tomake his speech. He might state, how­ever, that if unanimous consent hadnot been granted, it was his intention towithdraw the current motion which hemade and substitute a different motion,on which he would be entitled to 'speakfor two additional times. I appreciatethe remarks of the distinguished Sen­ator from New York.

Mr. President, I believe the distin­guished Senator from Idaho (Mr.CHURCH) said a few moments ago, dur­ing the period for the transaction of rou­tine morning business, that on January25, Senate Resolution 9 was introducedby him and by the distinguished Senatorfrom Kansas (Mr. PEARSON), and it wason the following day that the distin­guished senator from Kansas (Mr.PEARSON) made his motion that the Sen­ate proceed to the consideration of Sen­ate Resolution 9. It was at that timethat the junior Senator from Alabamamade his motion to postpone considera­tion of the motion of the distinguishedSenator from Kansas (Mr. PEARSON) tothe next legislative day.

If we would ever adjourn the Senate,the motion that the junior Senator fromAlabama has made would lapse byef­ftux of time, because the next legislativeday would already have arrived. Sincewe are confined in the same legislative

day, even though it has been underwayfor some 10 or 11 days, it is necessarythat we address our remarks to the pend­ing motion.

lV1r. President, what is the issue in­volved in this discussion? Senate Resolu­tion 9 seeks to change rule XXII, tochange the requirement that the vote oftwo-thirds of the Senators present isnecessary to stop debate or to invokeclotw'e, as it is called, to a provision thatdebate can be cut off and cloture appliedby the vote of three-fifths of the Sen­ators present.

Now, Mr. President, make no mistakeabout it, if three-fifths cloture is adoptedby the Senate, then majority cloture isnot far behind. Already the Senator fromNew York (Mr. JAVITS) has sent up tothe desk a resolution, printed and placedon the desk of each Senator, proposingan amendment to Senate Resolution 9which would change the three-fifths clo­ture requirement to what might be calleda constitutional majority of Senators,that being 51 Senators. So the enteringwedge in getting majolity cloture in theSenate is the passage of Senate Resolu­tion 9 providing cloture by three-fifthsof Senators.

Once they get three-fifths, then theywill move to the constitutional majority.

Once they get a constitutional ma­jorityof 51 as the requirement, then theywill move to a simple majority.

Mr. President, the right to extendeddebate in the Senate is the one attributeof the Senate that sets it apart fromother legislative bodies and gives theSenate the claim to the distinction ofbeing the greatest deliberative body inthe world.

Mr. President, it is possible for Con­gress to act most rapidly. Under certaincircumstances, it is possible for legisla­tion to be passed in Congress in 1 dayand sent on to the President. If a bill isintroduced in the House and by unani­mous consent brought up for immediateconsideration, it could be passed in thematter of minutes and sent over by mes­senger to the Senate and, by unanimousconsent, passed that very same day.

Now, Mr. President, possibly that workswell in instances when some phase ofthe Government of the United States isabout to come to a halt by reason ofthe lapse of appropriation bills. It is pos­sible to pass a continuing resolution onthe last day of the fiscal year, or thelast day to which the appropliation hasbeen extended by a continuing resolutionand therebY continue the appropriation.

The fiscal year of the U.S. Govern­ment runs from July 1 through the fol­lowing June 30. I do not recall that many,if any, appropriation bills in either ses­sion of the 91st Congress for the ensuingfiscal year had been passed at the time ofthe close of the Government's fiscal yearfor which the appropriations had beenmade. So, in almost every instance, ifnot every instance, it was necessary topass a continuing resolution. That wasdone in a matter of hours, if not done ina matter of minutes. So it is possible forthe Congress to act quickly.

It is possible for bills which are strong­ly opposed and strongly contested in theother body to be rammed through that

body without the membership havingan opportunity to vote, or to offer amend­ments to the pending legislation if themembership votes on themselves a gagrule forbidding the offering of amend­ments to the pending legislation.

The customary time allowed a MembeFof the other body to speak is 5 minutes.So on some of these matters of legislationthat come before the House, sometimesthicker than this book of Senate ruleswhich I hold in my hand, the Senatemanual, an inch and a half thick, theyare expected in that bodY to pass on thatlegislation Without any meaningfuldebate.

When a measure comes to the Senate,a slOWdown is often in the interest ofthe people of this country, because itgives Senators an opportunity to ex­amine the proposed legislation, an op­portunity to study that legislation, andan opportunity to seek modification,compromise, improvements, in that pro­posed legislation.

Mr. President, as long as the Senateretains unto itself, and the individualMembers of the Senate, the right to ex­tended debate limited only by rule XXII,we will have better legislation enactedinto law and we will have more carefulconsideration given to legislation.

Mr. President, I am told that the U.S.Senate actually passes more pieces oflegislation even though we have extendeddebate in the Senate than does the otherbody, even though they have no right tomeaningful debate in the House.

Once a measure comes before the Sen­ate, if there iaa substantial minority thattakes a different view from the propo­nents of the legislation, they should havethe right, and they do have the right asprovided by rule XXII, of discussing thatmeasure at length, and of seeking to con­vince a sufficient number of the Mem­bers of the majority that the views of theminority with respect to that legislationare the proper views so that thereby theminority becomC?s the majority.

Mr. President, does the present clo­ture requirement of two-thirds imposean unattainable requirement, an unat­tainable goal or standard for proponentsof legislation? There have been fewpieces of legislation killed in the Senateby extended debate that were importantto the welfare of this country or thatwere not subsequently adopted in im­proved form. At one time under the Sen­ate rule XXII in order to apply clotureand cut off debate, a constitutional two­thirds of the Members of the Senate wasrequired so that in this day'it would take,if we had kept that rUle, 67 Senators tocut off debate. .

And if there were only 66 Senatorspresent at the time of the cloture voteand all 66 of them voted to cut off de­bate, debate would not have been cut offby the application of cloture because therule formerly provided that it took aconstitutional two-thirds. Of course,with 100 Senators, a constitutional two­thirds, meaning of aU Members electedand qualified, would require 67 Sena- .tors under that state of affairs.

.That rule was amended by the Senatein the exercise of its considered judg­ment and was cut down to the point

February 5, 1971 CONGRESSIONAL RECORD - SENATE 1917that it took only a two-thirds majorityof the Senators present. That changed ita whole lot. It just about cut the the­oretical necessity for' the number of Sen­ators almost in half because we can nowhave a vote on a cloture motion if wehave a quorum of Senators present. Aquorum, of· course, of a lOO'-Memberbody would mean 51 Senators would bepresent. So, with 51, Senators present,what is a"two-thirdsxnajority? Accord­ing to my, arithmetic, if 34 of, those 51voted to apply cloture and 17 votedagainst it, cloture would be applied. Thatis under the existing rule.

Mr. President, 34 Senators, with a. barequorum present, can apply cloture in theSenate under the existing rules. Yet theyare not satisfied with such a liberal ruleas this. They want to change it to~hree­fifths of those Members present. Theywould then want to change it again, andI believe they probably would leapfrogthe 51 constitutional majority and justmove in the next session of the Congressto a bare majority of the Senators whichwould permit, in this same hypotheticalcase of a 51-Senator quorum being pres­ent, 26 Senators to invokecloture.

Mr. President, they say that no otherparliamentary body has this right to ex­tended debate. That is the very featureand the very attribute that does set theSenate apart from other bodies and givesit distinction.

Are we going to rob this Senate of thisdistinction? Are we going to put it on alevel with other parliamentary bodies,or are we going to retain some' checksand balances against the possibility ofhastily considered legislation?

Mr. President, it is the judgment ofthe junior Senator from Alabama thatthe question of whether or not this ruleshould be changed in the manner soughtby Senate Resolution 9 is the most im­portant question that is going to comebefore the Senate in the 92d Congress.It was the most important question thatcame before the 91st Congress.

Two years ago this same question cameup for a vote' and 51 Senators voted toapply cloture and 47 senators votedagainst it. That is the high water markof Senators voting in favor of a changein the cloture rule. I believe from whatthe distinguished Senator from Idahosaid earlier this week, the question ofcloture will come up Thursday week.

It has been stated that he is going tofile the cloture motion on Thursday ofnext week, and under the rules it mustbe voted on on the second calendar daythereafter, and I will add parentheticallythat that has been interpreted to meanthat the Senate is in session. We aregoing to come back to the Senate fonow­ing the' Washington-Lincoln Birthdayrecess, and then the vote will be takenon the cloture motion on Thursday,which I believe is the 18th of February.

So we are going to have a cloture voteonthe 18th of February as promised bythe distinguished Senator from Idaho(Mr. CHURCH). That is going to be the

'question to be decided, and not this littlemotion that we have before us now.

Mr. President; it has been stated here,and, certainly it is correct because theirIlamesappear on the resolution, that 51

""'Y-' -,- . - ",_" <

Senators are sponsors or cosponsors ofSenate Resolution, No.9, that is, theresolution making the change in the Sen­ate rules from two-thirds to three-fifths,or 60 percent. I wish to point out this factto some of the distinguished Senatorswho, somewhat to my surprise, havejoined as cosponsors of the resolution.That is not the question which will be be­fore the Senate. The resolution itselfwill not be before the Senate. We willhave the question of whether' debate onthe motion to bring up this resolutionshall be cut off.

It would not be inconsistent at all fora cosponsor of the resolution to voteagainst cutting off debate. Yes, let Sena­tors take the position that if we get tothe point where the rules are subject toamendment they favor the amendment,but do not resort to the practice of apply­ing cloture and cutting off the right ofany Senator to discuss this question. Iwould hope that one, two, three, and pos­siblymore of the 51 Senators who havejoined in the resolution will not carrytheir advocacY,of the resolution to thepoint of voting to apply cloture.

Why is extended debate important?Rule XXII does not give the right of ex­tended debate or unlimited debate. Itprovides a limit to debate, so these peo­ple that we hear being critical of ruleXXII as providing for extended debateor unlimited debate are certainly incor­rect in that feeling because without ruleXXII we could have unlimited debateand prior to adoption of rule XXII backin 1917 there was no limit on debate.Those who wanted to limit debate werethe ones who put in rule XXII. It was notput in by those who wanted unlimiteddebate orextended debate; it was put inby those who wanted to limit debate.

Any legislation that can command thesupport of a two-thirds majority in theSenate can be limited in debate; and ifone more than a third want to continuethat debate, they should be allowed todo so. Rule XXII has not prevented civilrights measures from being adopted bythe Senate; cloture has been applied. Iappeal to the Senate to go ahead underthe rules if Senators feel that a givenpiece of legislation should be consideredby the Senate and voted on. Go aheadand apply cloture on the specific piece oflegislation, but do not apply cloture in aneffort to reduce from two-thirds to three­fifths the number of Senators requiredto apply cloture. Let us have the rule asit is, even though in many instancesSenators may want to apply cloture. Thisdoes not mean that by voting against ap­plying cloture on the rules change thatunder certain circumstances a Senatorwould not be in favor of applying clotureto a specific piece of legislation. But con­tinue the two-thirds reqUirement, be­cause that is absolutely essential for thebalance of powers in our Government.

So why have extended debate? Well.it protects the Senate from a completetakeover by the executive department­and when I speak of the executive de­partment, I am not referring to any par­ticular President or any particular ad­ministration, either present or past-butif it is made easier to stop debate in theU.S. Senate, we are going to see the power

of the executive, the power of the ad­ministration, to influence legislation inthis' body increased in direct proportionto the degree of modification in the clo­ture requirement of rule XXII.

Mr. President, we have seen the Con­gress, the legislative branch of this Gov­ernment, give up so many of its powersto the executive. We have seen the exec­utive and the Supreme Court just abouttake over the functions of the three de­partments of Government.

The Supreme Court and the executivebranch will reach out and talce hold ofany power and authority that they can.They are always seeking to build up theirpower and authority. Only the legislativebranch is willing to see its power andauthority eroded, delegated to the exec­utive, interpreted by the Supreme Courtcontrary to the will of the Congress, andnothing is done about it. Here we arepresented another opportunity to furthererode the power and authority of theU.S. Senate. That is what we would bedoing if we changed the rules of the Sen­ate, making it easier to cut off debate inthis body.

Mr. President, rt has been suggestedthat the discussion going on at thistime is a southern filibuster. Let us lookat the record of the 91st Congress andsome of the events that took place at thattime in the closing days of Congress, andsee who was using the right of extendeddebate. One of the main discussions wasthe discussion by the distinguished Sen­ator from Wisconsin (Mr. PROXMIRE),who was debating the conference reporton the SST appropriation, which putback the SST appropriation in a slightlyreduced amount after the Senate hadvoted to eliminate it altogether. I joinedthe distinguished Senator from Wiscon­sin (Mr. PROXMIRE) in voting against theSST appropriation when he called uphis amendment to the Department ofTransportation appropriation eliminat­ing the SST appropriation. I did not joinhim in that discussion, the extended de­bate. Rarely is an extended debate en­gaged in by a Senator outside of theSouth referred to as a filibuster; butthis extended debate that the distin­guished Senator from Wisconsin was en­gaged ir.. with regard to the SST confer­ence report was effective, and it has beenpromised that not later than some timein March an opportunity will be givento the Senate to vote again on the SSTappropriation as a separate item.

The reason why the distinguished Sen­ator from Wisconsin did not want thematter to come up was that he could notget a separate' vote on the SST. We hadto vote on the conference report, take itor leave it, and the report had the ap­propriation back in there. So the dis­tinguished Senator from Wisconsin couldhardly be referrec to as a southern con­servative. Yet he used this extended dis­cussion, and the junior Senator fromAlabama was not willing to support anyeffort to cut off his right to debate thatquestion, because it was an importantquestion. It deserved full discussion.

We recall, too, that part of the so­called logjam in the late days of the91st Congress was occasioned by theadding to the social security increase in

1918 CONGRESSIONAL RECORD - SENATE Feb'1'utLry 5, 1971

benefits legislation the President's familyassistance plan and the import quotalegislation, also referred to as the tradebill. Mr. President, I do not recall thatthe distinguished Senator from NewYork (Mr. JAVITS) or the distinguishedSenator from Min..llesota (Mr. MONDALE)actually participated in any debateagainst the import quota legislation, butthey served notice that they were goingto enage in extensive debate, in an effortto seek to block passage of that legisla­tion In the Senate.

Mr. President, who is going to be thebeneficiary of extended debate? Is itgoing to be Senators from my sectionof the country or is it going to be Sen­ators from other sections of the countrywho actually used extended debate inthe 9Ist Congress as much as or morethan Senators from my section of thecountry used it?

Mr. President, I believe that a sub­stantial majority of Senators favor somesort of import quota legislation. And ifwe ever get 60 percent cloture here in theSenate, there is a good likelihood thatthat type of legislation can pass, becausedebate could probably be cut off on it.

All of the civil rights legislation onwhich in the past, debate has been cutoff, as far as I know, has been passedeventually. There has been no difficultygetting cloture on civil rights legisla­tion. What is the use of extended debatetoday? The public generally thinks thatthe filibuster is used to block civil rightslegislation. That is not correct, becausethat legislation has already been passed.

What is there left? Mr. President, theuse of extended debate In the U.S. Senateis the best protection that a minority inthe Senate and in the country haveagainst the tyranny of a ruthless andarrogant majority. And, Mr. President,those who may today be the minoritymay, next decade or even next year bethe majority, and the majority todaymay be a minority next year or nextdecade.

The right to extended debate is thebest protection we have against a take­over of the Senate by the executivebranch of Government. It is the best pro­tection that we have against big govern­ment, to keep big government from get­ting bigger, to at least slow down themushrooming of the Federal bureauc­racy.

Mr. President, the filibuster dates wayback to the days of the Roman empire-­at least that far, and likely even farther,though, it was not calIed by that name.Julius Caesar,in the Roman senate, usedthe filibuster. I guess ancient Rome hadits greatest glory in the days of its sen­ate. I remember, as a high-school boy,studying Latin. We had these pictures ofthe Roman legions, and on one of thebanners, I remember they had the lettersSPQP..-8enatus Populusque Romanus,"The Senate and the People of Rome,"That was the heyday of the Roman em­pire, when the Senate was a free andindependent body, before it was takenover by the Caesars.

Julius Caesar used the filibuster, but.when he took over as ruler of Rome., hedid not like its use, because it cut downon his power and authority; and I be-

lieve it was the younger cato that hesilenced in the senate when Cato wasusing the filibuster to keep Caesar fromtaking over the Roman senate.

Mr. ERVIN. Mr. President, will theable and distinguished Senator fromAlabama yield to the Senator from NorthCarolina so that the Senator from NorthCarolina may propound to him a fewquestions?

The PRESIDING OFFICER (Mr.CHILES). Does the Senator yield?

Mr. ALLEN. Mr. President, I ask unan­imous consent that I may yield for thispurpose without losing my right to thefioor, and without my subsequent re­marks being considered an additionalspeech.

The PRESIDING OFFICER. Withoutobjection, it is so ordered.

Mr. ERVIN. The Senator from NorthCarolina would like to ask the senatorfrom Alabama if, in the ultimate anal­ysis, the demand for an alteration ofrule XXII is not based upon the asser­tion that we need more speed and moreefficiency in the Senate.

Mr. ALLEN. I believe that Is one ofthe arguments that they give. I wouldlike to suggest, at that point, that, if theproponents of this resolution have anyarguments in its favor, I would like forthem to come In and state them to theSenate.

Mr. ERVIN. I ask the Senator fromAlabama if he does not agree that theremight be some wisdom in the only changethat the Senator from North Carolinathinks ought to be made in rule XXII,and that is that no Senator shOUld beallowed to vote for cloture under ruleXXII unless he has been willing to listento some of the speeches made by thoseof us who believe that rule XXII oughtnot to be changed.

Mr. ALLEN. That sounds to the juniorSenator from Alabama as though itmight be a constructive change.

Mr. ERVIN. I ask the Senator fromAlabama if William S. White, who hasbeen a commentator on the Washingtonscene for many years, cannot be rightlynumbered among those who understandthe real place of the Senate as an institu­tion in our scheme of government.

Mr. ALLEN. Yes, indeed. He is an out­standing authority on the Senate, andof course he wrote "The Citadel" aboutthe U.S. Senate.

Mr. ERVIN. I ask the Senator fromAlabama if he does not agree with theSenator from North Carolina that thisgreat commentator, who loves and ap­preciates the Senate and understandsfully its place as an institution in ourscheme of government, did not put theposition of the Senator from Alabamaand the Senator from North Carolina inproper perspective when he said, onpages 18, 19, and 20 of his book "TheCitadel":

The Senate, therefore, may be seen as auniquely Oonstitutional place In that it ishere, and here alone, outside the courts-toWhich access Is not always easy-that theminority will again and again be defendedagainst the majority's most passionate w11l.

This is a large part of the whole meaningof the Institution. Deliberately it puts RhodeIsland, in terms of power, on equal footingwith nlinois. Deliberately. by its tradition

and practice of substantially unlimiteddebate. it rarely closes the d.oor to any id.ea,however wrong, until all that can possibly besaid has been said, and said again. The price,sometimes, is high. The time killing, some­times, seems intolerable and. <iangerous. Thelicense, sometimes, seems endless; but hewho silences the cruel and. irresponsible mantoday must first recall that the brave andlonely man may in the same way be silencedtomorrow.

And those who mock the Institution, e,nd.d.emand of it "speed" and yet more speedand "efficiency" and yet more efficiency,might remember that there is altogether agood d.eal of both at present In American life.For illustration, those who d.enounce thefilibuster against, say, the compulsory civilrights program, might recall that the weaponhas more than one blade and that today'spleading minority could become tomorrow'sarrogant majority. They might recall, too,that the techniques of communication, and

'wlth them the drenching power of propa­ganda, have vastly risen in our time whenthe gaunt aerials thrust upward all acrossthe land. They might recall that the publicis not always right all at once and that it isperhaps not too bad to have one place inwhich matters can be examined at leisure,even if a leisure uncomfortably prolonged.

Does not the Senator from Alabamaagree with the Senator from North Caro­lina that that is a conclusive argumentfor the retention of rule XXII in its pres­ent form?

Mr. ALLEN. Yes, I definitely think so.I think that Mr. White has stated hisviews in language much more forcefulthan the junior Senator from Alabamacould use, but certainly no more forcefulthan the senior Senator from NorthCarolina can use and does use on manyoccasions. I would say that any man whocan expound a philosophy of that sortwould be an outstanding addition to theU.S. Senate. and I wish he were here tohelp us in person on the fioor of theSenate to advance the outstanding argu­ment he has made.

Mr. ERVIN. And does not the Senatorfrom Alabama agree that Mr. Whitemakes a conclusive case for the retentionof rule XXII in its present form when hesays, in substance, that any rule that theSenate might devise by which It cansilence today a troublesome demagogcan be used with equal facility tomorrowto silence a brave man fighting for arighteous cause upon which the survivalof America might depend?

Mr. ALLEN. Yes. Icertainly agree, andI think that is a fine statement.

Mr. ERVIN. Does not the Senator fromAlabama recall from the history of therecent past that every time, for years,that a new Congress is assembled inWashington, those who desire to changerule XXII to secure speed-what they callspeed and efficiency-have presentedsuch proposed changes to the Senate?

Mr. ALLEN. Yes. It has been hap­pening for a number of years.

Mr. ERVIN. Does not the Senator fromAlabama recognize, as does the Senatorfrom North Carolina, that every time anew Congress meets. those fine, but im­patient, Senators who want to changerule XXII require the Senate to lay asideits legislative work and waste anywherefrom a month to six weeks of the Senate'stime seeking the change?

Mr. ALLEN. Yes, indeed. I think it is awaste of time,and I wish that very soon

February 5,19'11 CONGRESSIONAL RECORD - SENATE 1919

the majority leader will lay this wholematter aside and let us get to some of themuch needed legislation we have beforeus.

Mr. ERVIN. Does not the Senator fromAlabama realize that we could have beendealing with matters of legislation dur­ing the past 2 weeks, except for this in­sistence upon a rule change, which theSenate has refused to make time, time,and time again?

Mr. ALLEN. Yes. That is true.The Senator· will recall that in the

closing days of the 91st Congress, we hada great logjam of legislation. These mat­ters had been through the Senate com­mittees-at least, had been consideredby the committees. I do not know whythey are not able to get those measuresout on the floor and get them in theposition they were in in the 91st Con­gress, and let us go ahead and vote onthem, rather than to be considering againthe matter of amending the Senate rules.

Mr. ERVIN, Will the Senator fromAlabama accept the assurance of theSenator from North Carolina that dur­ing the 16 or 17 years that the Senatorfrom North Carolina has been a Mem­ber of this body, the proponents ofchange in rule XXII have taken actionwhich resulted in the use of a year of theSenate's time in those 16 or 17 years;whereas, all the filibusters so-called andall the educational debates so-calledwhich have occurred during that timehave consumed a very small portion ofthe Senate's time, as contrasted with thewaste of time brought about by a demandfor the change in rule XXII?

Mr. ALLEN. I do not know just whatthe proportion would be, but I do knowthat we have consumed many monthsarguing about the change in rule XXII,which seems needless to the Senatorfrom Alabama.

Mr. ERVIN. I ask the Senator fromAlabama whether far more of the time ofthe Senate has not been used in an effortto change rule XXII since the Senatorfrom Alabama came to the Senate thanhas been consumed by all the alleged fil­ibusters and pseudofllibusters and edu­cational debates against which the pro­ponents of this change inveigh?

Mr. ALLEN. I will have to be frank'with the distinguished Senator fromNorth Carolina and state that I do notknow the proportion and the rffiativecomparison between the debate on therules change and the other debates, butcertainly we have consumed manymonths in discussing the rules change.

Mr. ERVIN. Does the Senator fromAlabama really know any organizationsor individuals, who demand a changein rule XXII except those who are some­what impatient?

Mr. ALLEN. I know of no others thatare demanding it. I do not recall receivingany letters-few, if any, letters have Ireceived urging me to be for the changein rule XXII.

Mr. ERVIN. Does not the Senator fromAlabama agree with the Senator fromNorth carolina that there never was any­thing truer than what William S. Whitesaid on pages 18 and 19 of his book, "TheCitadel," when he said:

The Senate, therefore, may be seen as a-miquely Constitutional place in that it is

here, and here alone, outside the courts-towhich access is not always easy-that theminority will again and again be defendedagainst the majority's most passionate will.

Mr. ALLEN. Yes, indeed. I agree withthat statement.

Mr. ERVIN. Considering the way thecourts operate, will the Senator fromAlabama agree with the Senator fromNorth Carolina that the senate is theonly place in the United States-indeed,the only place in the world-where asubstantial majority can engage in rea­sonable debate and in a reasonable ef­fort to convert itself from a minority intoa majority?

Mr. ALLEN. It is the only body withwhich the junior Senator from Alabamais familiar, and it is one of the greatfeatures of this body, and I want to con­tinue that feature.

Mr. ERVIN. I thank the Senator.Mr. ALLEN. I thank the distinguished

senior Senator from North Carolina(Mr. ERVIN) for his most helpfUl com­ments and participation in this discus­sion.

Mr. President, when the distinguishedSenator from North Carolina (Mr.ERVIN) engaged me in colloquy, I wasdiscussing the matter of the extendeddebate which took place in the Romansenate, and the fact that Julius Caesarwhile a member of the senate engaged infilibustering, but after he became rulerof Rome, while it still had a senate, be­fore they put the senate out of business,was able to silence and did silence theyounger Cato, who partIcipated in ex­tended debate in the Roman senate.

Mr. President, I have hardly startedmy remarks on this subject. I am hope­ful that at a later hour, either today ornext week, I shall be able to continue mydiscussions. I never got down to some ofthe remarks I planned to make.

The distinguished senior Senator fromArkansas (Mr. MCCLELLAN) is present inthe Chamber, wishing to discuss thismatter, and since I have no preparedremarks and am discussing this issueextemporaneously, I am able to stop atany stage of my remarks.

So, at this time, Mr. President, in orderthat the distinguished Senator fromArkansas (Mr. MCCLELLAN) may have anopportunity to discuss this matter, I do,at this time, yield the floor.

The PRESIDING OFFICER (Mr. FAN­NIN). The Senator from Arkansas isrecognized.

Mr. McCLELLAN. Mr. President, Ideeply regret that during the past fewdays my committee duties and responsi­bilities, together with other pressingmatters involving my State and my con­stituents, have prevented me from beingpresent on the floor to listen to many ofmy distinguished colleagues who havepreceded me in the discussion of thisvery important issue. I am sure that Icannot match the words of wisdom al­ready spoken by them. I did want, how­ever, to deliver in part this afternoonsome remarks that I have prepared onthis subject.

Anticipating the probable time of ad­journment this afternoon, I shall nothave adequate time to complete all thatI wish to say in opposition to the changein rule XXII and, therefore, I now ask

unanimous consent that my remarks thisafternoon be considered only the begin­ning, or a part of what I anticipate Ishall say before this debate shall end,and that my remarks today, and thosesubsequent thereto the next time I takethe floor, all be regarded as one speech.

Mr. President, I ask unanimous con­sent for that.

The PRESIDING OFFICER. Is thereobjection to the request of the Senatorfrom Arkansas? The Chair hears none,and it is so ordered.

Mr. McCLELLAN. Mr. President, onceagain, as on numerous occasions in thepast, we have before us a proposedchange in rule XXII. I heard part of thecolloquy a few minutes ago between thedistinguished Senator from North Caro­lina (Mr. ERVIN) and the distinguishedSenator from Alabama (Mr. ALLEN) re­garding the tremendous waste of timethat has occurred in this effort over thepast several years.

I think it would be of interest, and Ithink the RECORD should reflect-I noticethe distinguished Senator from NorthCarolina (Mr. ERVIN) has returned tothe Chamber-that a survey should bemade of the time that has been wastedon this proposal during the past quarterof a century. It is this kind of waste oftime that often brings criticism uponthis distinguished body, criticism which isoften intended and calculated to impairits image as the great institution towhich it has often been referred-thegreatest lawmaking body in the world.

I would hope that when we finally voteon the issue now before us, that thismatter will be settled. I would hope thatit be determined that an insufficientnumber of this body want this rulechanged, and that a sufficient numberof the Members of this body will continueto oppose this abortive effort and, here­after, we can proceed wah other businessin this body without the long interrup­tions which have been caused by thisissue, the proposed change of rule XXII.

I would go further, Mr. President, insaying that if this proposal is adopted,to where 60 percent of 60 Members of theSenate can invoke cloture, that will notend the issue or the argument. Such achange will only inspire, stimulate, andencourage further efforts toward theultimate goal of the proponents, which isto reduce this body to the subservienceof the will of a temporary majority anytime that majority expresses itself.

If that ever happens, Mr. President,then it can never again be said, as it hasso often beE'n said, that this is the great­est deliberative legislative body in theworld.

I think that, as long as that descrip­tion of the Senate remains true, the Sen­ate will be clothed in the luster of honor,dignity, and character, that not onlyevery Memher of the Senate should beproud of, but that every citizen of thisNation should acclaim with pride.

Mr. President, I rise to oppose uneQuIv­ocally the pending resolution which seeksto amend rule XXII of the StandingRules of the Senate. This amendment isdesigned to further liberalize proceduresin the U.S. Senate so as to enable slightlymore thsn a bare majority of the mem­bership of this body to compel-not per-

1920 CONGRESSIONAL RECORD - SENATE February 5, 1971

suade, Mr. President, but to compel-insome instances, hasty, ill-advised actionon any pending matter before the Senate,no matter how grave the issue, no matterhow serious the consequences or ill­advised action may be. Such an amend­ment would serve to enforce further thewill and purpose of a bare majority notonly on the Senate, but also on the peopleof this Nation. This would be done with­out affording adequate opportunity forthe due deliberations of which this bodYis so capable and which are needed andshould be exercised for the people to besufficiently informed-and they shouldat all times, Mr. President-be sufficient­ly informed--on vital issues so as to en­able them to formulate their views andin turn make them known to their chosenrepresentatives in this body.

This pending proposal, Mr. President,under a set of circumstances whichcould reasonably occur would enable asfew as 31 Members of the Senate, lessthan one-third of the elected representa­tives serving here, by invoking a cloturerule, to cut off debate and silence theremaining 69 Members.

It would enable as few as 31 Membersto cut off debate and silence the remain­ing 69.

Just about 4 years ago, I rose in thisChamber to lend my voice in protestagainst the same nature of assault onthe rights of the American people that isinvolved here in this debate today. Atthat time, I called attention to the com­ments attributed to one of the wisestAmericans who ever lived, Thomas Jef­ferson, relative to debate in the U.S.Senate.

Mr. President, those comments of Jef­ferson are just as much in point today,and even more persuasive possibly thanthey were then, if we just listen to them.So, I would like to refer to them andquote them again.

Mr. Jefferson said:The rules of the Senate which allow full

freedom of debate are designed for the pro­tection of the minority, and this design ispart of the warp and woof of the Constitu­tion. You cannot remove it Without damag­ing the whole fabric. Therefore, before tam­pering With this right, we should assure our­selves that what is lost w1ll not be greaterthan what is gained.

Mr. President, just as those immortalwords illuminated the pathway and gaveguidance to our predecessors during thattime and since then, so they serve ustoday.

There are those who insist there are­as they have repeatedly pointed out onthe fioor in the course of this debate foryears while this has been a live issue inthe Senate-the alleged advantages thatare to be gained by this so-called gagrule. The force of the rule change thatis proposed here and the ultimate goal ofthose who seek a change will be to finallyseek a bare majority. Those gains, Mr.President, as Jefferson indicated, aremore than offset by the loss to be sus­tained.

Mr. President, it is generally agreedthat Thomas Jefferson was a man ofmany talents and certainly he was a man

of great experience in government. Notonly did he understand the true meaningof democracy, and the role of the legisla­tive process in safeguarding individuallights but I believe he had a better un­derstanding of that process than anyother man of his time and, perhaps,since then.

During the period of the formation ofour Government, in its very infancy, hehad a better understanding of the proc­esses then than any other man living.Although much of interest and value hasbeen written and said about him, I do notrecall ever having read any reference tothis great man as either a "Southern re­actionary" or a "conservative" or a "ra­cist" or a 'bigot" or any other derisiveor critical terms that are sometimes nowapplied to those who stand here in thisbody today and continue to defend theprinciples that Jefferson espoused, andhe was trulY a progressive of his time.If he espoused them then and they haveserved this Nation well for nearly twocenturies, and no harm has come to thecountry because of them, why is it thatnow those of us who defend the sameideals, the same principles, and the sameprocesses that were designed to protectthe minorities and designed to make cer­tain that the American people could beinformed on the issues on which theirrepresentatives were voting are treatedwith derision? If they were valid thenand if they had the virtue then to com­mand the respect of men like Jeffersonwho advocated them, what has happenedto warrant the change now of condem­nation and derision of those of us whostand here to defend the same idealsand principles.

I can tell you, Mr. President. OurFounding Fathers had the depth of wis­dom to reject it. I will tell you, Mr. Presi­dent, what is behind it. It is political'expediency. "We can get the power toram legislation through and once we geta slight majority we can do it."

Mr. President, that is not the way topreserve America and that is not the wayto preserve the liberties, the freedom,and the rights, the civil rights, that theliberals profess so much to idolize andserve. Ultimately they will be overriddenby some small majority at a given time.

They are taking more risks in this mat­ter than are those of us who are defend­ing and protecting this country fromarbitrary decisions and oppressions.Some of them will have an awakeningtoo late, if they happen to get thisthrough at any time. It will be too latethen. As we used to try to tell them aboutsome of the proposals that have beenbefore this body, ultimately we told themthat they \vill suffer more ill conse­quences from it than those sections ofthe Nation they thought they werechastizing. That is coming true everyday-every day. It is happening acrossthe Nation. The very· sections of thecountry they thought they were chastiz­ing are rising above it and the ill con­sequences of it are visiting them todayin their O\vn front yards. There is nota Senator in this body who when he readsthese remarks that wiII not know exactly

what I am talking about. Some of themwill wince when they read it because itis true.

Yet, those of us who have stood ourground these many years and havefought off nine assault waves in 18 yearson one of the most vital institutions pos­sessed by the American people, have beenopprobriously referred to in thosederi­sive terms for expressing exactly thesame sentiments, and for the very samereasons-love of country and concernfor its preservation as the greatest de­mocracy on this earth.

Mr. President, it is, in my judgment,most unfortunate that in 1959, this body,ignoring the wise counsel of that greatstatesman, Jefferson, saw fit to "tamperwith this right" by amending rule XXIIso as to permit a two-thirds majority ofthose present and voting-as few as 34Senators-to invoke cloture, rather thana two-thirds majority of the full Senatemembership-67 Senators, as was pro­vided by the 1949 amendment.

Well, Mr. President, what is happen­ing here today confirms what I said a fewmoments ago. The adoption of a changeto a proposed 60 Senators is not goingto satisfy the proponents. This is a whit­tling away process. We shaved off a lit­tle a few years ago; now we will whittleaway more. If the Senate agrees to 60percent, we will shave off some more,and the next round will probably be for55 percent. That wiII not satisfy them.They will be back here for 51 percent;and then 26 Senators, if there were only51 Senators present, would have thepower to silence debate because they didnot agree with other Senators on a par­ticular issue.

Mr. President, in some fields and insome areas, there is a process of degen­eration that applies sometimes by thenormal course of nature. Here we arebeginning to practice it. We are asked todo these things that would bring abouta further stimulation of the processes ofdeterioration of the strength, the dignity,and the power of the Senate to protectthe citizens of this country against thepossibly ill-advised, hasty, and rash ac­tion of a mere majority of Senators atsome given time. It is not a wise course;it is a foolish course. I hope there is yetenough collective wisdom in this body toreject this proposal.

This protective rule of 1949 was fur­ther weakened seriously in 1959, and now,in keeping with a steady trend, we arewitnessing still another assault on the"full freedom of debate" which, in Jeffer­son's words, were designed "for the pro­tection of the minority."

It is a strange concidence that thosewho are here today insil?ting upon achange in this rule often profess to be thegreatest champions of the minority: andwhen they go out to speak in campaignsthey refer to Jefferson, the great Jeffer­son, father of democracy. And yet theystand here and repUdiate him-not onlyrepUdiate him but also denounce thoseof us who defend him by the opprobriousterms to which I have already referred.

Mr. President, from 1806 to 1917, therewas free and unlimited debate in the

February 5, 1971 CONGRESSIONAL RECORD - SENATE 1921Senate of the United States. Was ourGovernment destroyed? Did our Nationcease to, prosper? The answer is obvious.

The truth is that that was the periodof our growth and strength, the strengththat gave US the impetus to become thegreatest Nation on earth, when men werefree. That is what we want to keep.

We .grew and prospered and becamethe greatest Nation on this earth.

Between 1917, when the first cloturerule was adopted, under the pressuresof a great war arid a national emergency,cloture motions were limited to pendingmeasures and required a tWo-thirds ma­jority vote of those present and voting.In 1949,ruIe XXII was amended so asto restore this bulwark of democracyagainst the. oppression and tyranny ofthe majority, by authorizing cloture onlyby a two-thirds majority of the entireSenate, but debate could not be limitedon any proposal to amend the standingrules of the Senate. However, at thattime, the rulewas extended to cover, inaddition to the pending business, all mo­tions and other matters and unfinishedbusiness.

This. again bears testimony to and isevidence of what I asserted a few min­utes ago-that we are witnessing in thisperiod of time the whittling process, thewhittling away a little this year and alittle the next session. and a little thenext year, until ultimately there will beno bUlwark against the tyranny of a meremajority.

Then in 1959, the number required toinvoke cloture was reduced to two-thirdsof those' present and voting. The 1959amendment was simply used as a vehicleto enable a majority to try to appeaseminority groups for political expediency,without regard to the constitutionalrights of the majority of. the Americanpeople.

Prior to the 1959 amendment, ruleXXII was an imposing buIwark of truedemocracy. Through the years, it servedto safeguard the liberties of. our peopleand afforded them the right of thoroughand full expression through the mediumof their chosen representatives in theU.S. Senate. Although seriously weak­ened in 1959, rule XXII, in its presentform, still stands as a vital safeguard ofliberty. Weaken it further-and that iswhat the proposal will do-and you willstrike down and destroy this fortress, thislast bastion of free and unlimited debatein the most profound legislative body inthe world.

Mr. President, once this rule is de­stroyed, .once this ruIe is whittled downto where a simple majority can imposeits will arbitrarily, this body will nolonger be able to boast that it is thegreatest deliberative body in the world.I hope we never surrender that great dis­tinction.

Contention is made, with great em­phasis, that the present rule XXII per­mits abuses. It does. Abuses have oc­curred.

There is hardly a ruIe of the Senatethat does not permit abuses, and we wit­ness them day after day and time aftertime. One can probably abuse anything

he wants to abuse, and I have seen thatabuse. I have seen what I thought wasan abuse by some of those who now con­demn the rule. I have seen measures herethat I wouId like to have voted on. Iwould like to have seen them disposedof. I was anxious and ready to vote, butI saw a minority of those who stand hereand plead to destroy that right exercisingthat very right on the fioor of the Senate,to keep a majority of us from voting onsomething they did not like. I did notcomplain. I would like to have seen avote. But, having a vote on that issue atthat time, the gain that would have beenmade would never have outweighed theloss that wouId be sustained by a rulethat would permit a bare majority toinvoke its wiII and impose its will hastily'and arbitrarily. on a minority in thisbody. "

I have witnessed some of them sinceI have been a Member of the Senate, andI have noticed that, in some instances,these abuses have been perpetrated bythe very persons who are now clamoringfor a change.

However, Mr. President, although freeand unlimited debate may have resultedin temporary delay and may, on occasion,have served to inconvenience other Mem­bers of the. Senate, any harm that mayhave resuIted was infinitesimal in com­parison with unwise and unsound legis­lation that might have been enacted hadthe ruIes been different.

The things works both ways, Mr. Presi­dent. You may be able to impose the willof a bare majority and get some legisla­tion through hastily. That is all right.But there are many times when thatkind of operation, that kind of rUle, thatmanner of enacting laws, wouId be anabuse, because then we would enact legis­lation without knowing what the con­sequences of it would be.

We have enacted legislation withoutunderstanding its provisions. We haveenacted legislation that was not wise, notproved. What do we want, expediency atthe cost of wisdom? That is the way toget it. Get you an arbitrary process,where you can force your will, for thesake of expediency, and wisdom is rele­gated to obUvion.

Mr. ERVIN. Mr. President, I ask theSenator from Arkansas if he wiII yieldsolely for a question.

Mr. McCLELLAN. I yield for a ques­tion, without relinquishing my right tothe fioor.

Mr. ERVIN. I ask the Senator fromArkansas if, under rule XXII in Its pres­ent form, a cloture motion cannot befiled immediately after the Senate takesup a bill for consideration.

Mr. McCLELLAN. The Senator is cor­rect; of course every Senator knows, andthose who inveigh against rule XXIIknow, that the minute a bill is broughtup on this fioor and made the pendingbusiness, if they want to do it, they canfile a cloture motion right then, andwithin-what is it, 48 hours?-two legis­lative days thereafter, we have to voteon it.

Mr. ERVIN. Yes; it couId be less than48 hours, because a bilI might be called

up just before midnight. We have hadsessions here at midnight.

Mr. McCLELLAN. I seem to recall afew of them, Mr. President, yes.

Mr. ERVIN. Anyway, as soon as a billis called up, is it not true that a cloturemotion couId be filed, and then Senatorsare allowed to debate that bilI only forthe rest of that day, the next day, and 1hour on the following day, before clotureis voted on?

Mr. McCLELLAN. That is right. It canbe less than 48 hours. We usually thinkof It in terms of 48 hours, but it couldbe less.

Mr ERVIN. I ask the Senator fromArkansas if it has not been his experienceand observation in' the Senate that inthose instances where cloture has beenvoted, although the ruIe says Senatorsmay each speak for 1 hour after thattime, the majority of Senators who havevoted for cloture do not come to theSenate Chamber and listen to those Sen­atorswho undertake to use an hour, orpart of it.

Mr. McCLELLAN. Of course, the Sen­ator is correct. The cloture ruIe is noth­ing but a gag rule. That is its true pur­pose. It is not to serve-to enlighten. Ifit can have any effect in the world, thecloture rule is to prevent debate and toforce a vote for expediency'S sake at thetime; and there have been times whenI know it has been expedient for me andfor my cause, because a majority of Sen­ators had the same viewpoint I did withrespect to the pending issue, but a minor­ity was able to prevent it. I did not com­plain about that; they had that right un­der the rule. and it is that rule theywant to destroy and that rule I want topreserve.

Mr. ERVIN. Will the Senator from Ar­kansas accept the assurance of the Sena­tor from North Carolina that the Sena­tor from North Carolina devoted muchtime and attention to trying to improvethe civil rights bill of 1964 and to makeit a more just and workable law, al­though the Senator from North Carolinawas opposed to the bilI; that in so doing,the Senator from North Carolina pre­pared several amendments, such as, forexample, an amendment ,to make thequestion of whether discrimination ex­isted in federal programs determinableas they should be in jUdicial tribunalsrather than in executive agencies havingno rightful judicial power under the Con­stitution; that after cloture was voted,the Senator from North Carolina usedthe hour allotted to him to present andexplain his just and workable amend­ments; and that virtually all of the Sen­ators who' had voted to impose clotureabsented themselves from the Senatewhere the Senator from North Carolinawas explaining his just and workableamendments, and merely came to thefioor to vote against such amendmentswithout listening to a single word spokenby the Senator, from North Carolina toexplain the meaning and wisdom of theamendments proposed by him.

Mr. McCLELLAN. I am sure the Sena­tor had that experience; he observed it.possibly, more keenly than some of us.I observed it; I know that is true, not-

1922 CONGRESSIONAL RECORD - SENATE February 5, 1971

withstanding the fact that the senatorwas in good faith with those amend­ments' and they would have insured thedemocratic processes where they do notexist now, so that the accused, or theones charged, would have had a chanceto present their case and be heard,whereas they do not have it now; andthe very Senators who profess to wantthe democratic processes and to preserveliberty and protect the minority are theones who, by that expediency, preferredand by that attitude toward the Sena­tor's amendments prevented those rightsfrom being enacted into law.

Mr. ERVIN. Can it not be reasonablyinferred that some Senators vote to im­pose cloture and thus gag other Senatorsbecause they do not want to listen tothem and afford them an opportunityto present their views?

Mr. McCLELLAN. That may well be apart of their reason. They also profess tohave other reasons.

Mr. ERVIN. The present discussionillustrates this point very well. As theSenator from North Carolina recalls, 51Senators have joined in a proposal tolower the vote by which cloture can beobtained from two-thirds of the Sen­ators present and voting to 60 percentof them. I am constrained to say that Ihave strained my eyesight trying to see ifany of those Senators who cosponsoredthis proposal have been here to listen tothe arguments against it. They have beenconspicuous by their absence.

Mr. McCLELLAN. I do not think theyhave an open mind. I do not think theyare too well informed. They already havefixed opinions.

Mr. ERVIN. And they want to makesure their fixed opinions are not changedby further light on the subject.

Mr. McCLELLAN. They do not want toget confused, let us say, so they avoid be­ing exposed to any logic or wisdom whichmight inform them and confuse them.

Mr. ERVIN. Does the Senator see anysimilarity between that situation andthat of the North Carolina justice ofthe peace, who, after the plaintiff hadpresented his case in justice court, toldthe defendant, "I would appreciate itvery much if you would not offer any evi­dence, because when I hear only oneside of a case I do not have any troublereaching a conclusion, but when I hearboth sides, I get confused, and thereforeI would appreciate it very much if thedefendant would not offer any testi­mony."

Mr. McCLELLAN. I think the Senator'sstory is very apropos to the statementI just made, that they do not want toget enlightened and confused.

Mr. President, we are told that thepurpose of the pending amendment torule XXII is to terminate' successfulfilibustering; to enable the U.S. Senateto discharge its responsibility to theAmerican people in a more democraticand expeditious manner-again Igoback to what Mr. Jefferson said aboutdemocracy, that this protection of theminority is indispensable to true democ­tacy-and to end the undue power which

the rule places in the hands of a minor­ity. In fact, advocates of the proposedchange allege that the Senate, becauseof its tradition of free and unlimiteddebate, is unable to transact the Nation'sbusiness and is derelict in its obligations.

Mr. President, I have only to referback to the closing days of the last ses­sion of this body to point out that thevery things that are complained abouthere were then practiced by the oneswho are doing the complaining. But itwas expedient for them, from theirviewpoint at that time, to do it. Thoughthey condemn it in others, they practiceit and take every advantage of the rightto do when their ox is being gored.

Mr. ERVIN. Mr. President, I ask unan­imous consent that I may describe acartoon I saw, without the Senator fromArkansas losing his right to the fIoor orhaving any subsequent remarks countedas a second speech or it being otherwiseprejudicial to his position.

The PRESIDING OFFICER. Withoutobjection, it is so ordered.

Mr. ERVIN. One of our good friends,a very distinguished Member of the Sen­ate, who filibustered against the SST inthe closing days of the last Congress, wasdepicted in this cartoon as coming intothe Sens,te Chamber with a great, bigblunderbuss gun called "The Filibuster."In the cartoon, someone said, "Don'tyou consider this a dangerous weapon?"Our distinguished friend, as depicted inthe cartoon, said, "No, except in thehands of southerners."

Mr. McCLELLAN. Except in the handsof southerners.

I do not know whether the Senator wasin the Chamber a few minutes ago, whenI said for the record-and I hope thatsome of our good colleagues read it-thatwe tried to warn them a few years ago,when they were trying to impose somelegislation on a certain section of thiscountry, when they were trying to chas­tise-and I will use the term "South"now-when they were trying to chastisethe South, that there was going to be abacklash from it and that they wouldfeel that backlash. Today, they have itin th3ir own front yard, all across thisNation. An~ I believe they are askingfor more of it.

Again, Mr. President, it is not theSouth-I can say that-that is going tosuffer the most serious consequencesfrom what I regard as these rash pro­posals if they should be adopted. Intime, ultimately, it is going to boom­erang, and the one who will get injuredis the one who threw it, not the target atwhich it was thrown.

Mr. President, an examination of therecord reveals clearly that there is verylittle, if any, validity to these conten­tions.

First, we find that rule XXII, in anyof its various forms, has never been com­pletely effective in terminating extendeddebate. Since 1917, when the first cloturerule was adopted, cloture has been in­voked 49 times and was successful on onlyeight occasions, four of which occurredwhen the rule required only two-thirds

of those present and voting to close de­ba.te. Now, this fact maybe cited asproof that further liberalization of therille is necessary. However, when Mem­bers of this body are ready and willing tocut off debate and resort to "gag rule" ononly eight occasions in 53 years, what itreally proves is that a substantial numberof Senators were not ready and willing toact upon these measures in the form inwhich they were pending. This is clearlyindicated by the fact that on 25 of the 49occasions, those seeking to invoke cloturenot only failed to muster the requiredtwo-thirds support for their motion, butalso failed to receive the support of evena majority of the authorized membershipof the Senate; and of this number, on 15occasions, they were unable to obtaineven a simple majority-a majority ofthose present and voting.

Those of us who are familiar with theworkings of this body know that failureto invoke cloture on 41 occasions over aperiod of 53 years cannot be attributedto the requirements of the rule alone. Itis obvious that Members opposing clotureon those occasions voted against it eitherbecause of a deep-seated conviction that"gag-rule" is an affront to our demo­cratic institutions, or because of a sim­ilarly deep-seated conviction that fur­ther debate was essential and in the bestinterests of the Nation. I emphasize againthe fact that experience has demon­strated beyond any question that whenthe U.S. Senate is ready to act on a pend­ing measure, it can act, does act, andwill act.

The allegation that the Senate, be­cause of its tradition of unlimited debate,is unable to transact the Nation's businessand is derelict· in its obligations to theAmerican people is clearly refuted bythe record. First, despite the provisions ofrule XXII, during the past 53 years, Con­gress has enacted an enormous quantityof legislation. A substantial proportionwas transmitted to Congress by the Pres­ident with a request for action. Theproduct that ultimately emerged in theform of legislative enactments has oftenbeen quite different from the originalsubmission-quite different from whatthe President recommended, from whatthe administration tried to have enacted.Experience has demonstrated that theultimate product in those instances wasoften far better, in form and substance,than the original submission.

That does not apply only to the ad­ministration in power. It applies to theadministrations over more than a halfcentury. Presidents are no more infalli­ble than Members of Congress.

I hope I will not be taken to task aboutthat statement, because many who haveserved as President were Members ofCongress. I am not sure that always theablest Member of Congress became Pres­ident of the United States. I have somereservations about that, though I makeno challenge or charge.

So, Mr. President, I think that all def­erence should be shown to the Presi­dent's proposals when he sends themdown here.

February 5, 1971 CONGRESSIONAL RECORD - SENATE 1923If the President of the United States,

regardless of party, is in power, everydeference should be shown him. We havea constitutional responsibility. We shouldweigh the matter, and resolve the doubtswith that in mind. Often, maybe, resolvethe doubts in deference to his wishes.But, he is not infallible. After all, whatthe President sends down here most ofthe time, if not all the time, is preparedby a staff of experts who are neverelected. to anything. I think their pro­posals should be meticulously examined.In my judgment that is the better processof democracy.

Mr. ERVIN. Mr. President, will theSenator from Arkansas yield for a ques­tion?

Mr. McCLELLAN. I yield gladly to theSenator from North Carolina.

Mr. ERVIN.IsIt not a fact that everyPresident we have had since FranklinDelano Roosevelt, except PresidentEisenhower, went from the Senate to theWhite House?

Mr. McCLELLAN. I have not countedit, but I will take the Senator's wordwithout making a hasty calculation.

Mr. ERVIN. President Truman hadserved in the Senate first, had he not?

Mr. McCLELLAN. That is correct.Mr. ERVIN. President John F. Ken­

nedy had served in the Senate first, hadhe not?

Mr. McCLELLAN. That is correct.Mr. ERVIN. And President Johnson

had served in the Senate first, had henot?

Mr. McCLELLAN. That is correct.Mr. ERVIN. And President Nixon had

served in the Senate first, had he not?Mr. McCLELLAN. That is correct.

The Senator is correct about that. As Ipointed out, we have shown great defer­ence to them, to their ability, their char­acter, to their noble intentions and pur­poses as well as to their qualities ofstatesmanship. But again, I point out,all those President who went from theSenate to the White House had aroundthem a staff of so-called experts as theircounselors and advisers.

I certainly would not concede that allof them towered in intellect and judg­ment above the level of the stature of theMembers of the Senate. I think it is ourduty, an inescapable duty, where legis­lative proposals come to us, even fromthe President of the United States, todischarge our duty and carefully ex­amine, assess. evaluate, and make judg­ments, and correct by amendment byelimination and by additions to thoseproposals, if :necessary, in order to servethe Nation's best interests.

Some Presidential proposals havemuch merit; others have some merit;and still others have little or no meritat all. So it is in the legislative processthat these proposals that come from thePresident prepared by his advisers shouldbe carefully considered and analyzed.When both Houses of the Congress haveconsidered and. acted upon such pro­posals, they may, and often do, emerge ina form quite different from. the originalsubmission, or, in some instances, they

may not be acted upon at all. Or theymay be acted upon and rejected by af­firmative vote of either House or bothHouses of Congress. Action in the otherbody is relatively rapid due, in part, tostrict limitations on debate and the partymachinery through which it functions.The Senate, however, with its traditionof full and free debate, is in a position todevote more time to legislative proposals,and to keep the American people fullyinformed with respect to vital pendingissues.

Without any reflection" upon the otherbody-and I had the honor to serve inthe other body-this is no reflection, Mr.President, they just do not have the timeover there to give full debate to anyissue.

From which body is it that the coun­try keeps best informed on the issues ofour time? It is the Senate. Not becausethose in the House are not just as able,patriotic, or as dedicated as we are, butbecause their numbers are so great andtime is of the essence so that they canand must often act hastily and withoutadequate debate. Whereas, Mr. President,this is the only place where there can beadequate debate and where that debatecan be carried through the news mediato the people of this Nation. The peoplehave the right to know, they are the ulti­mate judges, who should be informed,so as to weigh and make the judgmentsupon which they will exercise their fran­chise at the next election.

Do we want to stop that?I do not count the gains or count the

losses. I have a minus column and a pluscolumn as to evaluating this issue and asto passing judgment on it. For that isthe way we often determine the coursewe should pursue. There is some goodI1nd some bad in most legislation thatcomes before us. I have voted-as doesevery other Member of this body S0ml:'­times-for a bill that has something in itI do not like and I wish it were not inthe bill, but I vote for it because I eval­uate and strike a balance between thatwhich is good and that which is bad.I balance it all out, and that which out­weighs the other is the course that Ipursue in voting for legislation.

I think that course is imperative. Thereis no other way. So why, Mr. President,shall we not be able here to evaluatethis proposal on the basis of what we aregoing to lose and the potential evil con­sequences if we change the rule, asagainst what we know the record is nowwith the experience we have alreadyhad? We know. We do not have to guess.We have had 50-odd years of experiencewith it.

Only eight times has cloture been suc­cessful out of 49 times it has been in­voked by the Senate. Well, there hasnot been much lost by that, as in mostinstances the proponents did not evenget a majority. On 15 occasions, theywere incapable of finding a simple ma­jority of those present and voting tovote for cloture.

Mr. President, I wish to commend theSenator from North Carolina for calling

to the attention of the Senate a whileago, in his colloquy with the distin­guished Senator from Alabama (Mr. AL­LEN), the great waste of time that hasoccurred in this body by this whittlingaway process of trying to reduce thepower, the strength, the dignity, and thestature of the U.S. Senate down· to thelevel of political expediency.

I hope that this proposal will not pre­vail.

Now, Mr. President, the clock mdicates10 minutes past 3. So. with the unani­mous-consent request that was agreed toat the beginning of my remarks thattIus would be considered only the be­ginning of one speech, that I propose tomake on this issue, I am ready to yieldthe floor.

PROGRAMMr. BYRD of West Virginia. Mr. Presi­

dent, for the information of the Senate,the program for Monday will be as fol­lows:

The Senate will convene at 12 o'clockmeridian following a recess. Followingthe prayer and the approval of the Jour­nal, if there is no objection, and the lay­ing before the Senate of the pendingbusiness, the able majority leader andminority leader will be recognized underthe order entered on January 29. On theconclusion of their remarks, Mr. Presi­dent, and the call of any unobjected-toitems on the legislative calendar, therewill be a period for the transaction ofroutine morning business which will notexceed 30 minutes, with the statementstherein limited to 3 minutes.

ORDER OF BUSINESSMr. BYRD of West Virginia. Mr. Presi­

dent, for the information of the Senate,what is the pending question before theSenate?

The PRESIDING OFFICER. Thepending question before the Senate is onagreeing to the motion of the Senatorfrom Alabama (Mr. ALLEN) to postponeuntil the next legislative day the con­sideration of the motion of the Senatorfrom Kansas (Mr. PEARSON) that theSenate proceed to the consideration ofSenate Resolution 9, a resolution toamend rule XXII of the Standing RUlesof the Senate with respect to the limita­tion of debate.

Mr. BYRD of West Virginia. Mr. Presi­dent, I thank the distinguished PresidingOfficer for his courtesy.

RECESS TO MONDAY, FEBRUARY 8,1971

Mr. BYRD of West Virginia. Mr. Presi­dent, if there be no further business tocome before the Senate, I move, in ac­cordance with the order of yesterday,that the Senate stand in recess until 12o'clock meridian on Monday next.

The motion was agreed to; and (at 3o'clock and 11 minutes p.m.) the Senatetook a recess until Monday, February 8,1971, at 12 o'clock meridian.