Date: 1981-03-10
Speaker: ROBERT C. BYRD (democrat)
Chamber: S

Mr. President. undoubtedly. one of the greatest changes occurring in the rules between the 1884 codification and the 1979 revision. was the emergence and development of the controversial cloture rule. That rule is now contained in paragraph 2 of Rule XXII. and it commands a history unto itself. The origin and development and evolution of the rule have constituted a long and stormy voyage on the Senates parliamentary sea. In 1604. the practice of limiting debate In some form was introduced in the British Parliament by Sir Henry Vane. It became known in parliamentary procedure as the "Previous Question." It is described in Section 34 in Jeffersons Manual of Parliamentary Practice as follows: When any question is before the House. any member may move a previous question. whether that question (called the main ques. tion) shall not be put. If it pass in the affirmative. then the main question is to be put immediately. and no man may speak any. thing further to it. either to add or alter. In 1778. the Journals of the Continental Congress show that the "Previous Question" was used. Section 10 of the Rules of the Continental Congress was as follows: "When a question is before the House no motion shall be received. unless for an amendment. for the previous queston. to postpone the consideration of the main question. or to commit it." In the British Parliament and the Continental Congress. the "previous question" was used to avoid discussion of a delicate subject or one which might have injurious consequences. The Congress of the Confederation. on the practice of which the 1789 Senate drew so heavily. specifically declared that thoprevious question ... shall only be admitted when. in the judgment of two States at least. the subject moved is in its nature. or from the circumstances of time of place. improper to be debated or decidedJefferson. in his Manual. written while the 1789 rule was still in effect. stated: The proper occasion for the Previous Question is when a subject is brought forward of a delicate nature as to high personages . . .or the discussion of which may call forth observations which might be of Injurious consequences. Then the Previous Question is proposed. and in the modern usage. the discusslon of the Main (pending) Question is suspended. and the debate confined to the Previous Question. The use of it has been extended abusively to other cases. The question as to whether in the last analysis. a minority should have power to prevent legislative action by the maJority had been discussed in America long before 1789. Even in the colonial assemblies. various forms of obstruction had been practiced. and the subject was mentioned in the constitutional convention. A committee of the Congress of the Confederation. in 1784. recommended stringent rules to prevent delays. The adjournment date having been set for June 3. and with much work to be done in the remaining 2 weeks. the committee recommended that in this instance the President be authorized to take the following action to expedite business: 1) to take the sense of Congress with respect to putting any question without debate when he considered it desirable. 2) to prevent any Member from speaking more than once or longer than the President deemed necessary. 3) to prevent more than two Members from speaking on one side of any question. and 4) to finish each days business regardless of the hour of adjournment. The Journals of the Continental Congress do not record that the recommendations were adopted. but they provide an interesting example of proposals far more stringent than the Senate was ever to consider. It is apparent that unlimited debate wasfi*owned on by the Senate in the First Congress. since Rule IV provided that "No member shall speak more than twice in any one debate on the same day. without leave of the Senate." and rule VI provided that "No motion shall be debated until the same shall be seconded." Despite such precautions. delaying tactics were used in the Senate during its first year in 1789 against a bill to locate the National Capital on the Susquehanna. The following year. the bill to fix the location of the Capital again occasioned dilatory tactics in both the Senate and House. In the upper Chamber. opponents of Philadelphia as the Capital tried to spin out the time until the Rhode Island Senators could arrive and vote against that site. In the House of Representatives. supporters of Philadelphia faced a similar situation. It was raining when the Philadelphia bill was under consideration in the House. If the bill passed the House and went to the Senate before the rain stopped. its friends believed it would pass. but if it reached the Senate after the rain stopped. it would be defeated. This curious circumstance was due to the illness of Senator Samuel Johnston. an opponent of the Philadelphis location. who could not safely be carried to the Floor in the rain to vote against the bill. but could and would if the rain ceased. The Senate was so evenly divided that the ill Senators vote could have meant the difference. Supporters of the bill. therefore. tried to push the bill through the House before the rain ended. Gerry of Massachusetts and Smith of South Carolina thwarted the effort. however. by making long speeches and dilatory motions which delayed the decision until the next day. As I have already indicated. the rules adopted by the United States Senate in April. 1789. included a motion "for the previous question." As I have likewise stated already. when the rules were modified in 1806. reference to the previous question was omitted. it having been used only ten times during the years from 1789 to 1806. In the following year. 1807. debate on an amendment at the third reading of a bill was forbidden. From that time until 1846. there were no further limitations on debate in the Senate. Henry Clay. in 1841. brought forth a proposal for the introduction of the "previous question". but the proposrl encountered opposition and was abandoned. In 1846. consideration of the Oregon bill prompted the use of the unanimous consent agreement. a form of cloture. to limit debate by fixing a date for a vote. Since that time. such agreements have been used frequently to fix an hour at which the Senate will vote. without further debate. on a pending proposal. and to limit debate on amendments. appeals. debatable motions. etc. In 1850. Senator Douglas submitted a resolution permitting the use of the "previous question". but. in the face of considerable opposition. the resolution was laid on the table. In 1862. a resolution was adopted stating that. In consideration in secret session of subjects relating to the rebellion. debate should be confined to the subject matter and limited to five minutes. except that five minutes be allowed any member to explain or oppose a pertinent amendment. In 1868. a rule was adopted providing that. "Motions to take up or to proceed to the consideration of any question shall be determined without debate. upon the merits of the question proposed to be considered." The object of this rule. according to Senator Edmunds. was to prevent a practice which had grown up in the Senate. "when a question was pending. and a Senator wished to deliver a speech on some other question. to move to postpone the pending order to deliver their speech on the other question." According to Mr. Trumbull. the object of the rule was to prevent the consumption of time in debate over business to be taken up. The rule was interpreted as preventing debate on the merits of a question when a proposal to postone it was made. In December 1870. in the third session of the 41st Congress. Senator Henry Anothony of Rhode Island introduced the following resolution: On Monday next. at one oclock. the Senate will proceed to the consideration of the Calendar and bills that are not objected to shall be taken up in their order. and each Senator shall be entitled to speak once and for 5 minutes only Li each question. and this order shall be e.iforced daily at one oclock till the end of the Calendar Is reached. unless upon motion. the Senate should at any time otherwise order. The resolution was adopted on the following day. December 7. 1870. The socalled "Anthony Rule" for the expedition of business was the most important limitation of debate yet adopted by the Senate. The rule was interpreted as placing no restraints upon minority. however. inasmuch as a single objection could prevent its application to the subject under consideration. In 1880. the rule became a standing rule of the Senate. It is today Rule VIII. Paragraph 1. On April 19. 1872. a resolution was introduced. "That during the remainder of the session it should be in order. in the consideration of appropriation bills. to move to confine debate by any Senator. on the pending motion to 5 minutes." The resolution was adopted. and similar resolutions were adopted at various succeeding sessions of Congress. An effort to 7einstitute the "previous question" was made in March 1873. but the resolution was defeated by a vote of 30 to 25. From 1873 to 1880. nine other resolutions were introduced confining and limiting debate in some form. On February 5. 1880 in the second session of the 46th Congress. the famous "Anthony Rule." which was first adopted on December 7. 1870. was made a standing rule of the Senate as rule eight. In 1882. the "Anthony Rule" was amended by the Senate. so that if the majority decided to take up a bill on the calendar after objection was made. the ordinary rules of debate without limitation would apply. In December 1883. Senator William Frye. of Maine. Chairman of the Committee on Rules. reported a general revision of the Senate rules which included a provision for the "previous question". Amendments in the Senate struck this provision out. On March 17. 1884. the Senate agreed to the following amendments to the rules: "The Presiding Officer may at any time lay. and it shall be in order at any time for a Senator to move to lay. before the Senate any bill or other matter sent to the Senate by the President or the House of Representatives. and any question pending at that time shall be suspended for this purpose. Any motion so made shall be determined without debate." Also in March. 1884. the eighth rule of the Senate was amended by adding thereto: All motions made before 2 oclock to proceed to the consideration of any matter shall be determined without debate. In 1886. the Senate agreed to strike out the words. "without debate." from that part of rule XIII which provided that "every motion to reconsider shall be decided by a majority vote." Between 1884 and 1890. there were 15 different resolutions offered to amend the rules as to limitations of debate. all of which failed of adoption. On December 29. 1890. Senator Nelson Aldrich introduced a cloture resolution in connection with Senator Henry Cabot Lodges "Force Bill." which was being filibustered against. The resolution read. in part. as follows: "When any bill. resolution. or other question shall have been under consideration for a considerable time. it shall be in order for any Senator to demand that debate thereon be closed. On such demand. no debate shall be in order. and pending such demand no other motion. except one motion to adjourn. shall be made. . . ." There were five test votes on the cloture proposal. and the votes "commanded various majorities. but in the end it could not be carried in the Senate because of a filibuster against it which merged into a filibuster on the Force Bill. " In 1893. Senator Henry Cabot Lodge expressed his growing frustration over the delay. by excessive debate. of legislation he considered vital in an article entitled "The Struggle in the Senate." Mr. Lodge wrote: Of the two rights (of debating and voting) that of voting is the higher and more important. We ought to have both. and debate certainly in ample measure. but. if we are forced to choose between them. the right of action must prevail over the right of discussion. To vote without debating is perilous. but to debate and never vote is imbecile. As it is. there must be a change. for the delays which now take place are discrediting the Senate. and this is greatly to be deplored. The Senate was perhaps the greatest single achievement of the makers of the Constitution. and anything which lowers it in the eyes of the people Is a most serious matter. A body will not long hold the respect of the people who have chosen it to govern the country. No minority is ever to blame for obstruetion. If the rules permit them to obstruct. they are lawfully entitled to use those rules in order to stop a measure which they deiem injurious. The blame for obstruction rests with the majority. and if there is obstruction. it is because the majority permits it. The majority to which I have reference is the party majority in control of the Chamber. In 1897. the Chair ruled that quorum calls could not be ordered unless business had intervened. This ruling opened the way to a discussion of exactly what constituted "intervening business." Ths issue was finally joined in 1908 during a marathon filibuster led by Robert La Follette. Sr. On that occasion. Senator La Follette broke the previous endurance record by holding the floor for 18 hours and 23 minutes. His accomplishment was made possible through the device of suggesting the absence of a quorum. resulting in quorum culls each lasting at least six minutes and giving him the opportunity to seek rest and relief. On May 29. 1908. with the temperature over 90 degrees in the chamber. La Follette talked on into the night. fortifying himself with turkey sandwiches and egg nog from the Senate Restaurant. At one point. he took a sip of egg nog and immediately cast it away. exclaiming that it had been drugged. (Subsequent chemical analysis revealed that the amount of ptomaine in the glass would certainly have killed the Wisconsin Senator. but the culprit was never identified.) After thirtytwo quorum calls. Senator Nelson Aldrich. whose bill was the target of Senator- LFollettes filibuster. raised a point of order. based on the 1807 precedent. to the effect that no business had intervened since the last quorum call. Mr. Aldrich argued that debate by itself was not "intervening business." By a vote of 35 to 8. the Senate decided that Aldrichs point was welltaken. thereby reversing an 1872 precedent to the contrary. This ruling made it more difficult for La Follette to continue. His filibuster finally came to an end a few hours Inter when one of La Follettes allies. the blind senator from Oklahoma. Thomas Gore. yielded the floor to Senator William Stone. who was scheduled to relieve him. Unbeknowst to Gore. Stone had been called to the cloakroom. and the filibusters foes. taking advantage of the blind senators disability. immediately seized the opportunity to call for the adoption of the pending measure. Again. in 1915. Senator Reed Smoot set a new oneman record for the longest continuous filibuster. speaking for more than eleven hours without rest and without deviating from the subject at hand. His action was part of a filibuster against the administrations Ship Purchase Bill. The debate consumed thirtythree days and resulted in the failure of three important appropriations bills. In May 1916 the Committee on Rules reported out a resolution providing for twothirds cloture by those voting. tut the resolution. although debated. did iot come to a ijte. In 1916. and again in 1920. the Democratic Partys national platforms Included a statement as follows. "We favor such alteration of the rules of procedure of the Senate of the United States as will permit the prompt transaction of the Nations legislative business." The final impetus for a cloture rule came as a result of a 1917 filibuster against an administration measure that would have permitted the arming of American merchant vessels for the duration of the World War. Seventyfive senators had signed a petition calling for action on this bill in the closing days of the 64th Congress. However. eleven members banded together in opposition. and their action led to a twentythreeday filibuster and the ultimate failure of this muchdesired bill. This stimulated a great public outcry which associated the Senates right to free and unlimited debate with treason. President Wilson. on the eve of his second inaugural. angrily responded to the Senates action by making one of the most notable of presidential attaks on the Senate and its procedures. He said. in part: The termination of the last session of the 64th Congress disclosed a situation unparalleled in the history of this country. perhaps unparalleled in the history of any modern country. In the immediate presence of a crisis fraught with a more subtle possibility of national danger. the Congress has been unable to act either to safeguard the country or vindicate the elementary rights of its citizens. More than 500 of the 531 members of the two houses were ready and anxious to act. the House had acted by an overwhelming majority: but the Senate was unable to act because a little group of eleven Senators determined that it should not. The Senate has no rules by which debate can be limited or brought to an end by which dilatory tactics of any kind can be prevented. A single member can stand in the way. The result is a paralysis of the legislative and executive branches of government. The inability of the Senate to act has rendered some of the most necessary legislation impossible at a time when the need of it was most pressing and most evident. It would not cure the difficulty to call the Sixtyfifth Congress into extraordinary session. The paralysis of the Senate would remain. The Senate cannot act unless its leaders obtain unanimous consent. Its majority is powerless. helpless . . . Although as a matter of fact. the nation and the representatives stand in back of the Executive with unprecedented unanimity. the impression made abroad will be that it is not so and the. other governments may act as they please without fear that this government will do anything. We cannot explain. The explanation Is Incredible. The Senate of the United States is the only legislative body in the world which cannot act when its majority is ready for action. A little group of willful men. representing no opinion but their own. have rendered the great government of the United States helpless and contemptible. The remedy . . . the only remedy is that the rules of the Senate be altered so that it can act. The country can be reled on to draw the moral. I believe that tle Senate can be relied on to supply the means of action and save the country from disaster. Even before the filibuster which killed the Armed Ship Bill. the president had planned to call the Senate into special session to deal with a pending treaty. Nonetheless. when the Senate met in extraordinary session the day following Wilsons inauguration. there was only one item o. business on its members mindsthe cloture rule. Professor Thomas Ryley in his book. A Little Group of Willful Men. notes that. at the time. most senators did not want to undermine the filibuster. as many of them had taken advantage of It in the past. but "with an aroused public. there was almost as much resentment over the filibuster as there was over the fact that American rights had not been defended to the utmost." When the president announced that the rules of the Senate would have to be revised before he would call a special session of the entire Congress to deal with the war emergency. Ryley observes. "the fate of unlimited debate was sealed." The principal responsibility for the cloture resolution rested with the new Democratic - majority leader. Thomas Martin of Virginia. Under his guidance. a bipartisan committee of the Senates leaders drew up a proposal providing for cloture on a pending measure if twothirds of those present and voting so voted. Under the new rule. cloture would begin with a petition signed by sixteen members. Two days after the submission of the petition. a vote would be held. If twothirds of those present and voting approved the proposal. each senator could speak for a maximum of one hour. and no amendmnts could be made except by unanimous consent. Even if this rule had been in effect at the time of the Armed Ship bill filibuster. however. it could not have saved the measure. for the amount of time required under the procedure was greater than that remaining in the life of that Congress. It was clear from the beginning of the March 1917 debate that the rule would pass by an overwhelming margin. I think it is useful. however. in the light of subsequent developments and considering the overstated nature of President Wilsons attacks on the Senate. to look at the arguments of the proposed rules three lone opponents. Illinois. Senator Lawrence Sherman had been an avowed supporter of the Armed Ship bill. He took the position. nonetheless. that President Wilsons attack was unfair. He said. "There is in the memory of no person. now having a seat on the Senate. delayed action or a filibuster which destroyed meritorious legislation. save during the last weeks of the short (second) session. which automatically adjourned on the succeeding fourth day of March of that year. There is a limitation." he continued. "where mere exhaustion applies the cure. It is always in the power of the Senate to apply the remedy by continuous session. except the last few days named." Sherman argued that the rules were to be made "the scapegoat for the deficiencies of human nature." and their amendment had been raised "solely for the purpose of breaking down the rule of the Senate and riveting Executive control on the Senate as firmly as on the House." Senator Shermans basic point was that if the administration had sent the bill in "due time. it would not have been possible." in his words. "for those senators to have defeated it by delaying a roll call until the adjournment." A second opponent. Senator La Follette. also took issue with the practice of holding important bills in committee. particularly appropriations measures. until the eleventh hour to build up pressure for their speedy and uncritical consideration and passage. As the debate on the cloture rule was drawing to a close. La Follette presented a classic statement in defense of unlimited debate. He said: Mr. President. believing that I stand for democracy. for the liberties of the people of this country. for the perpetuation of our free institutions. I shall stand while I am a Member of this body against any cloture that denies free and unlimited debate. Sir. the moment that the majority imposes the restriction contained in * the pending rule upon this body. that moment you will have dealt a blow to liberty. you will have broken down one of the greatest weapons against wrong and oppression that the Members of this body possess. This Senate is the only place in our system where. no matter what may be the organized power behind any measure to rush its consideration and to compel its adoption. there Is a chance to be heard. where there is opportunity to speak at length. and where. if need be. under the Constitution of our country and the rules as they stand today. the constitutional right is reposed in a Member of this body to halt a Congress or a session on a piece of legislation which may undermine the liberties of the people and be in violation of the Constitution which Senators have sworn to support. When you take that power away from the Mombers of this body. you let loose in a democracy forces that in the end will be heard elsewhere. if not here. The third opponent. Senator Gronna of North Dakota. at the time the resolution passed. said simoly. "Forgive them. for they know not what they do!" By a vote of 76 to 3. on March 8..1917. after only six hours of debate. the Senate adopted its first cloture rule. In the months that followed. the United States entered the World. War and the Senate. during the second session of the 65th Congress. broke all previous records by remaining in session for 354 days between December 1917 and the following November. By the time the war had ended in November 1918. it was becoming clear that the cloture rule was not going to be effective. Several months earlier. Senator Oscar Underwood. soon to become the Democratic floor leader. introduced a resolution reestablishing the use of the "previous question" and limiting debate during the wartime period. The Rules Committee favorably reported the Underwood resolution. but it failed of passage by a vote of 34 to 41. A year later. on November 15. 1919. the Senate adopted its first cloture motion and four days later brought to an end the 55day debate on the Treaty of Versailles. In the years that followed. however. cloture was used only sparingly. From 1917 until 1962. the Senate invoked cloture just four times and between 1917 and the end of World War II. it voted on cloture petitions on only 15 occasions. including five in February 1927. On November 29. 1922. the Senates Republican Whip. Charles Curtis. tried a new approach to limit debate. In the midst of a fourday filibuster against an antilynching bill. Democratic Leader Underwood. who supported that fillbuster. moved to adjourn immediately upon the convening of the Senate. Curtis then raised a point of order that the motion was dilatory. He said. "I know that we have no rule of the Senate with reference to dilatory motions. We are a legislative body and we are here to do business and not to retard business." He then observed that "it is a wellstated principle that in any legislative body where the rules do not cover questions that may arise. general parliamentary rules must apply." He argued that in the House. Speaker Reed had ruled. in the absence of rules to the contrary. that dilatory motions were out of order. Vice President Coolidge. in the Chair at the time. declined to rule on Curtis specific point of order. Today. except in cases where the Senate is operating under the cloture rule. the rules do not specifically prohibit dilatory motions as such. One of the most notable of the earlier campaigns to devise an effective debate limitation rule began here in the Senate chamber on March 4. 1925. The occasion was the inaugural address of the new Vice President. Charles Dawes. By that time. Mr. Dawes had already earned a reputation as an effective administrator by virtue of his successful banking career and his service as the first director of the Budget Bureau. A man of commanding personality. the Vice President was often called by his campaign nickname of "Hell n Maria." one of his favorite expressions. During his term of office. Mr. Dawes participated more actively in the Senates business than most of his predecessors. Mr. Dawes began his activist role with a statement that shocked the assembled senators. He told them that it was his duty as their presiding officer "to call attention to defective methods in the conduct of (the Senates) business." Accordingly. he observed that the existing cloture rule. "which at times enables Senators to consume in oratory those last precious minutes of a session needed for momentous decisions. places in the hands of one. or a minority of senators. a greater power than the veto power exercised under the Constitution by the President of the United States. which is limited in its effectiveness by the necessity of an affirmative twothirds vote." Filled with indignation. the vice president covered his audience with a barrage of rhetorical questions. "Who would dare." said he. "to contend that under the spirit of democratic government the power to kill legislation providing the revenues to pay the expenses of government should. during the last few days of a session. ever be in the hands of a minority. or perhaps one senator? Who would dare oppose any changes in the rules necessary to insure that the business of the United States should always be conducted in the interests of the Nation and never be in danger of encountering a situation where one man or a minority of men might demand unreasonable concessions under the threat of blocking the business of the Government? Who would dare maintain that in the last analysis the right of the Senate itself to act should ever be subordinated to the right of one senator to make a speech?" On the following day. Senator Underwood introduced a resolution to replace the 1917 cloture rule. Its provisions. which harkened back to the original 1789 rule on the "previous question." were as follows: 1. There shall be a motion for the previous question which. being ordered by a majority of Senators voting. if a quorum be present. shall have the effect to cut off all debate and bring the Senate to a. direct vote upon the immediate question or questions on which it has been asked and ordered. The previous question may be asked and ordered upon a single motion. a series of motions allowable under the rules. or an amendment or amendments. or may be made to embrace all authorized motions or amendments and include the bill to its passage or rejection. It shall be in order. pending the motion for. or after previous question shall have been ordered on its passage. for the Presiding Officer to entertain and submit a motion to commit. with or without instructions. to a standing or select committee. 2. All motions for the previous question shall. before being submitted to the Senate. be seconded by a majority by tellers if demanded. 3. When a motion for the previous question has been seconded. it shall be in order. before final vote is taken thereon. for each Senator to debate the proposition to be voted for one hour. To build support for his reform campaign. Vice President Dawes set out on a crosscountry tour. In the spirit of his great. great grandfather. William Dawes. who rode with Paul Revere on that fateful nibht in 1775 to warn of the Impending arrival of British troops. Charles Dawes sought to sound the alarm against the dangers he perceived in the Senates rules. At one stop. in Boston. the Vice President addressed a gathering on this subject. In the presence of Massachusetts Senator William Butler. he asked that those in the audience who favored a rules change stand up In order to make ther views known to their senator. As the supportive cheers died down. the vice president literally pulled the embarrased senator from his chair. exclaiming. "I want to hear what Senator Butler has to say about this." The freshman senator quickly observed that he was in favor of a reform of the Senates rules. particularly the seniority rule. Several weeks later. Mr. Dawes announced that he intended to take his campaign to Kansas. home of Senate Republican floor leader Charles Curtis. There he promised to hold a "monster mass meeting" and he expressed the hope that the senator would be present to see his constituents "react." Senator Curtis. who was also chairman of the Rules Committee. told a New York Times reporter that he thought the DawesUnderwood proposal stood little chance even though he was willing to support it. Recalling his own earlier efforts to achieve majority or threefifths cloture. Senator Curtis reminded the vice president that he had been able to find only two other Republican senators willing to join him in support of such a proposal. The Kansas senator correctly predicted that the Dawes campaign would fail. Later in 1925. Democratic Leader Joseph Robinson. joining members on both sides of the aisle. argued that no change in the rules was necessary to prevent irrelevant debate. He noted that general parliamentary practice "contemplates that a speaker shall limit his remarks to the subject under consideration." and he called on the Chair to require that debate be germane. (Prior to 1964 there was no rule requiring germaneness of debate and the Chair had ruled on numerous occasions that there was no requirement for debate to be germane.) Executive branch reorganization acts in 1939 and 1945 contained provisions for a limitation of debate not to exceed ten hours. equally divided between supporters and opponents. but only in the case of a concurrent resolution disapproving a presidential reorganization plan. The language of those statutes acknowledged the constitutional right of the Senate to change this requirement "at any time in the same manner and to the same extent as in the case of any other (Senate) rule." This rule read: "Debate on the resolution shall be limited to not to exceed 10 hours. which shall be equally divided between those favoring and those opposing the resolution. A motion further to limit debate shall not be debatable. No amendment to. or motion to recommit. the resolution shall be in order. and it shall not be in order to move to reconsider the vote by which the resolution Is agreed to or disagreed to.! Subsequent extensions of the Reorganization Act contained this proscription on debate. In 1946. the Republican Steering Committee delegated Senator Saltonstall to prepare an amendment to Rule XXII "so that the various dilatory methods of preventing its application can be eliminated." By 1948. a series of rulings over the years had rendered the 1917 cloture rule worthless. particularly those rulings that held that it could not be applied to debate on procedural questions. On August 2 of that year. President Pro Tempore Arthur Vandenberg. in sustaining a point of order against a petition to close debate on a motion to consider an antipoll tax bill. declared that in the final analysis. the Senate had no cloture rule at all. He noted that "a small but determined minority can always prevent cloture under the existing rules . . ." At that point. the Republican Conference appointed a committee of ten senators to recommend revision of the existing cloture rule. In 1949. control of the Senate returned to the Democratic Party. Fresh from his surprise election victory. President Truman sought to clear the way for a broad civil rights program and his first step was to push for a liberalization of the cloture rule. His efforts produced a bitter battle at the beginning of the 81st Congress. After lengthy hearings in the Rules Committee. the Majority Leader. Scott Lucas. moved on February 28 to take up the resolution. This action set off a filibuster which ran until March 15. when it was voluntarily halted. After three days of further debate. the Senate adopted a compromise measure that proved to be less useable than the one it replaced. It required that twothirds of the entire Senate vote for cloture. rather than twothirds of those present and voting. The new rule differed from the old in that it allowed cloture to operate on any pending business or motion with the exception of debate on motions to change the Senate rules themselves. Previously. the cloture rule had been applicable to those latter motions. This meant that future efforts to change the cloture rule would themselves be subject to extended debate without benefit of the cloture provision. Previously. under the old rule. debate limitation on a rules change had at least been theoretically possible. This led critics of the revised rule to develop a new strategy. which became apparent in 1953. at the beginning of the 83rd Congress. At the opening of the 83rd Congress. advocates of majority rule in the Senate challenged the conception of the Senate as a continuing body. They based their strategy on the contention of Senator Walsh in 1917 that each new Congress brings with it a new Senate. entitled to consider and adopt its own rules. They proposed to move for consideration of new rules on the first day of the session and. upon the adoption of this motion. to propose that all the old rules be adopted with the exception of rule XXII. Rule XXII was to be changed to allow a majority of all Senators (49) to limit debate after 14 days of discussion. On January 3. 1953. Senator Clinton Anderson moved that the Senate immediately consider the adoption of rules for the Senate of the 83rd Congress. Senator Robert Taft moved that the Anderson motion be tabled. During the ensuing debate.. Senator Douglas told the Senate that the Anderson proposal was the only method with any hope of success. The 1949 rule. he said. "ties our hands once the Senate is fully organized. . . . For under it any later proposal to alter the rules can be filibustered and never permitted to come to a vote. . . . Therefore. if it be permanently decided that the rules of the preceding Senate apply automatically as the.new Senate organizes. we may as well say farewell to any chance (either) for Civil Rights legislation or needed changes in Senate procedures." Opponents of the Anderson motion centered principally on the argument that the Senate is a "continuing body". bound by the rules of earlier Senates. They said. that this thesis was proved because: (1) Only onethird of the Senate is elected every two years. (2) The Constitution did not provide for the adoption of new rules every two years. (3) If the Senate had had the power to adopt new rules. it had lost that power through disuse. and (4) The Supreme Court. they said. had decided that the Senate was a "continuing body." The Anderson motion was finally tabled by a vote of 21 to 70. on January 7. 1953. On January 3. 1957. Senator Anderson moved. at the opening of the 85th Congress. to consider the adoption of new rules. Senate Majority Leader Johnson moved to table the Anderson motion. and the Anderson motion was tabled by a rollcall vote of 55 to 38. During the debate. however. Vice President Nixon said that he believed the Senate could adopt new rules "under whatever procedures the majority of the Senate approves." He said that in his opinion the current Senate could not be bound by any previous rule "which denies the membership of the Senate the power to exercise its constitutional right to make its own rules." Nixon said he regarded as unconstitutional the section of Rule XXII banning any limitation of debate on proposrls to change the rules. but added that the question of the constitutionality of the rule could be decided only by the Senate.itself. During the 85th Congress. 195758. eight resolutions were introduced to amend the cloture rule. At the opening of the 86th Congress. Senate Majority Leader Johnson offered a resolution to amend Senate Rule XXII which was adopted on January 12. 1959. after 4 days of debate. by a 72 to 22 roll call vote. The resolution amended Rule XXII so as to enable twothirds of the Senators present and voting to shut off debate on any matterand I should emphasizeincluding proposals for rules changes. It also amended Senate Rule XXII by adding this language: "The rules of the Senate shall continue from one Congress to the next Congress unless they are changed as provided in these rules." At the opening of the 87th Congress. in 1961. Vice President Nixon reaffirmed his 1957 "advisory opinion" that the constitutional right of a majority of the Senate to adopt new rules at the beginning of a new Congress could not be inhibited by the twothirds requirement of Rule XXII regarding cloture. No action on cloture was taken on a final nature. Efforts to amend the cloture rule failed again in the 88th and 89th Congresses. On January 11. 1967. Mr. McGovern introduced a resolution providing for threefifths of the Senators present and voting to end debate. On January 18. Mr. McGovern proposed that the Senate immediately vote to end debate on the motion to consider his resolution and if a majority vote occurred. the Senate would then debate the resolution itself. Mr. McGovern justified this procedure by arguing that the Senate. under the Constitution. could. at the beginning of a new session. adopt new rules by a majority vote. Senator Dirksen raised a point of order against the McGovern motion. Supporters of McGovern had hoped for a favorable ruling from Vice President Humphrey. but Humphrey stated: "the precedent. . . namely. that the Chair has submitted constitutional questions to the Senate for its decisionthe Presiding Officer believes to be a sound procedure. It has not been considered the proper role of the Chair to interpret the Constitution for the Senate. Each Senator has his own obligation when he takes his oath of office to support and defend the Constitution. The Presiding Officer is aware of no sufficient justification for reversing this procedure." Humphrey then asked the Senate if the point of order should be sustained. He also said this question was debatable but subject to a tabling motion. which is not debatable. whereupon Mr. McGovern moved to table the Dirksen point of order. According to the Vice President. acceptance of the tabling motion would have validated the constitutionality of the McGovern motion. which in turn would have validated the right of the Senate to adopt new rules by majority vote at the beginning of a new session. However. the Senate rejected Mr. McGoverns motion by a 37 to 61 roll call vote. Dirksens point of order was then sustained by a 59 to 37 roll call vote. Hence. the Senate found McGoverns motion unconstitutional. An attempt was then made to invoke cloture but it failed. At the beginning of the 91st Congress. in 1969. yet another strategy was devised by those who favored alteration in rule XXII. S. Res. 11 was introduced by Senators Church and Pearson and provided for invoking of cloture by threefifths. rather than twothirds. of those present and voting. Their strategy required a favorable ruling by Vice President Humphrey that a simple majority could invoke cloture on any motion to take up. or on the resolution itself. when a change in the rules was being attempted at the start of a new Congress. On January 14. 1969. five days after debate had begun on S. Res. 11. Mr. Church and 24 other Senators filed a cloture motion to limit debate on the motion to consider the resolution. This cloture motion was filed under the procedure set forth in rule XXII. Mr. Church then inquired of the chair whether. if a majority of the Senators present and voting. but less than the twothirds required by rule XXII. voted in favor of cloture the cloture motion would have been agreed to. Church justified his request for a favorable ruling with the argument that it was unconstitutional to require a twothirds vote to invoke cloture on such questions in that it restricted the right of a majority of the Senate to determine its rules at the opening of a new Congress. a right. by Churchs reasoning. implied in the Constitution. The Vice President agreed with Mr. Church. saying: "On a par with the right of the Senate to determine its rules. though perhaps not set forth so specifically in the Constitution. is the right of the Senate. a simple majority of the Senate. to decide constitutional questions. "If a majority but less than twothirds. of those present and voting. vote in favor of this cloture motion. the question whether the motion has been agreed to is a constitutional question. The constitutional question is the validity of the Rule XXII requirement for an affirmative vote by twothirds of the Senate before a majority of the Senate may exercise its right to consider a proposed change in the rules. If the Chair were to announce that the motion for cloture had not been agreed to because the affirmative vote had fallen short of the twothirds required. the Chair would not only be violating one established principle by deciding the constitutional question himself. he would be violating the other established principle by inhibiting. if not effectively preventing. the Senate from exercising its right to decide the constitutional question. . . ." "The Chair informs the Senate that in order to give substance to the right of the Senate to determine or change its rules to determine whether the twothirds requirement of Rule XXII is an unconstitutional inhibition on that right at the opening of a new Congress. if a majority of the Senators present and voting but fewer than twothirds vote in favor of the pending motion for cloture. the Chair will announce that a majority having agreed to limit debate on S.Res. 11. to amend Rule XXII. at the opening of a new Congress. debate will proceed under the cloture provisions of that rule." * This was a landmark ruling. subject. as the Chair said. to appeal without debate. On January 16. the Senate voted 51 to 47 to invoke cloture and the Vice President. in line with his earlier statement. ruled that cloture had been invoked. This decision was appealed and reversed on a 45 to 53 roll call vote. A subsequent attempt to invoke cloture this time within the twothirds stricture of Rule XXII. was attempted and failed. At the start of the 92nd Congress. Senators Church and Pearson introduced S.Res. 9. which would have reduced the number of Senators required to curtail debate from twothirds to threefifths of those present and voting. The proponents hoped for a favorable ruling from the Chair on whether a simple majority at the start of a Congress could invoke cloture on a resolution to alter Senate rules or on a motion to take up such a resolution. but Vice President Spiro Agnew stated that he would refrain from making any such ruling. and instead. referred all such questions to the full Senate for resolution. The proponents of S.Res. 9 were. therefore. required to carry on their efforts under the twothirds requirement they were seeking to change. Attempts to invoke cloture failed. and during the sixweek debate on the motion to consider the resolution. several Senators suggested a number of compromise solutions to bridge the gap between those favoring a modification of Rule XXII and the opponents of a threefifths rule. Senator Allen Ellender proposed a threefifths vote to end debate on all conference reports and appropriations bills. Senator ROBERT C. BYRD. who was then Majority Whip. suggested that debate be ended by threefifths of the membership of the Senate. A third attempt to end debate failed on March 2 by a vote of 48 to 36. A fourth and final attempt to end debate failed by a vote of 55 to 39. 8 votes short of the required twothirds majority. Senator Javits then appealed the decision of Presiding Officer Allen Ellender. who had announced that the cloture attempt had failed to receive the necessary twothirds majority. By appealing the decision of the Chair. Mr. Javits again raised the question of whether the Senate could alter its rules at the beginning of a new session by a simple majority. Majority Leader Mansfield successfully moved to table Mr. Javits motion. At the beginning of the first session of the 94th Congress. Senators Mondale and Pearson sponsored an attempt to change the cloture rule so that threefifths of the Senators present and voting could bring debate to a close. The proposal. S. Res. 4. was introduced on January 17. 1975. and placed on the Senate Calendar. As in the past. proponents of the measure hoped for a favorable ruling from the Chair on whether a simple majority. at the start of Congress. could close debate on a resolution to change Senate rules. or on a motion to take up such a resolution. Mr. Pearson. as part of a lengthy motion. moved that the Senate proceed to the consideration of S. Res. 4. and. "under Article 1. Section 5. of the U.S. Constitution. I move that debate upon the pending motion to proceed to the consideration of S. Res. 4 be brought to a close by the Chair immediately putting this motion to end debate to the Senate for a yea or nay vote. and. upon the adoption thereof by a majority of those Senators present and voting. a quorum being present. the Chair shall immediately thereafter put to the Senate. without further debate. the question on the adoption of the pending motion . . ." Senator Mansfield entered a point of order against the motion in that it prescribed an end to debate by a majority vote. Vice President Rockefeller declined to rule either on the validity of the Pearson motion or on the Mansfield point of order. and. instead. submitted to the Senate the question of whether the Mansfield point of order was well taken. The Senate temporarily endorsed the doctrine that majority cloture may be invoked to change Senate rules at the start of a Congress when it agreed to a motion by Senator Mondale to table the Mansfield point or order by a vote of 51 to 42. Senator James Allen of Alabama then moved that the motion be divided inasmuch as it contained several clauses. The Vice President ruled that the mo. tion could be divided and that. once divided. the various parts of the motion became debatable. although. when considered as a whole. the motion was not subject to debate. With this ruling. coupled with the Vice Presidents subsequent recognition of Senator Allen. the Pearson motion became subject to a long series of amendments and intervening motions. and although the principle of majority cloture had been temporarily endorsed. the parliamentary tangle which followed the division of the motion prevented a majority cloture vote from being taken on the original Pearson resolution. In the course of the debate. on February 26. 1975. Senator RUSSELL LONG Of Louisiana indicated his willingness to compromise on a constitutional threefifths cloture rule. This proposal was embodied in S. Res. 93. introduced by Senator ROBERT C. BYRD of West Virginia on February 28. 1975. The Byrd Resolution provided for closing debate in the Senata upon the vote of "threefifths of the Senators duly chosen and sworn." The Byrd proposal required a twothirds vote of "Senators present and voting" to close debate on a measure or motion to change the rules of the Senate. Senator BYRD requested immediate consideration of his resolution. but objection was heard and the resolution went over under the rule. On March 3. 1975. the Senate. by a vote of 53 to 38. agreed to reconsider the vote of February 20. through which the Mansfield point of order against the Pearson motion was tabled. A motion to table the Mansfield point of order was rejected. 40 to 51. The following day. the Senate voted 53 to 43 to sustain thd Mansfield point of order. Thus. the Senate erased the precedent of majority cloture established two weeks before. and reaffirmed the "continuous" nature of the Senate rules. On March 3. 1975. Senator ROBERT C. BYRD entered a motion to close debate on the motion to proceed to consider S. Res. 4. On March 5. 1975. the Senate invoked cloture on the motion to proceed to consider Senate Resolution 4. The vote was 73 to 21. with twothirds of the Senators present and voting having voted in the affirmative. Later the same day. the Senate voted 69 to 26 to proceed to consider S. Res. 4. and adopted Senate Resolution 93. which had been previously introduced by Senator ROBERT C. BYRD. as an amendment in the nature of a substitute. Senator BYRD introduced a motion to close debate on Senate Resolution 4. as amended. and cloture was voted on March 7. by a vote of 73 to 21. with twothirds of the Senators present and voting recorded in the affirmative. S. Res. 4. as amended by S. Res. 93. in the nature of a substitute. to provide for a constitutional threefifths cloture vote for all measures save those amending the rules of the Senate. passed the Senate on March 7 by a vote of 56 to 27. Subsequent to the 1975 revision. opponents of measures increasingly relied on "postcloture" filibusters in an attempt to delay Senate action on measures. They did this by calling up myriad amendments offered before cloture was invoked. by demanding frequent roll call is ]93 votes and repeated quorum calls. and by calling for the reading of amendments. conference reports. and the Journal. In 1977. Senator ROBERT C. BYRD introduced a resolution. S. Res. 5. designed to restrict the use of such postcloture filibusters. As reported from the Committee on Rules and Administration. the resolution provided that a cloture petition could not be offered until 24 hours after the Senate had begun consideration of a measure. limited to 50 hours the. amount of time available for debate after cloture was invoked. provided that time for quorum calls and votes be charged against the 50 hours. permitted the postcloture debate time to be extended or reduced upon a twothirds vote of the Senate. and included provisions limiting dilatory tactics. The reading of amendments and conference reports in full could not be demanded if they were available in printed form to all Senators. and the Presiding Officer was given greater discretion in ruling quorum calls dilatory and out of order. However. efforts to devise a compromise version of the resolution failed. and S. Res. 5 was put aside for the remainder of the session. In October 1977. a series of rulings by the Vice President. sustained by the Senate. established precedents for reducing the impact of postcloture filibusters. Senator ROBERT C. BYRD offered a Ioint of order against an amendment to the Natural Gas Pricing bill in that the amendment was directed to the bill. and not to the substitute upon which cloture had already been invoked. The amendment. Mr. BYRD claimed. was dilatory. in that it was not directed at the subject under consideration. Moreover. Senator BYRD made the point of order that "when the Senate is operating under cloture. the Chair is required to take the initiative . . . to rule out of order all amendments which are dilatory or which on their face are out of order." Vice President Mondale sustained the point of order. and the Senate tabled an appeal from the ruling of the Chair. The Senate also sustained a point of order that a Senator has the right to recall his own amendments. qualified and pending under cloture. prior to being called up. The Senate also sustained a point of order that actions ruled dilatory do not constitute the transaction of business for the purpdse of demanding a subsequent quorum call. On Jan. 15. 1979. Senator ROBERT C. BYRD introduced S.Res. 9. a proposal to expedite Senate consideration of legislation. The resolution. as introduced. contained the following provisions: a. offering of nondebatable motions to approve or correct the Journal would be permitted. b. debate on motions to proceed to consider a particular bill would be limited to 30 minutes. c. demands for the reading of an amendment would not be in order if copies of the amendment were available in printed form. d. the offering of nondebatable motions requiring threefifths vote to enforce rule of germaneness on future amendments to a bill would be allowed. e. postcloture debate time would be limited to 100 hours. with time for quorum calls. votes. and parliamentary rulings and appeals counted against the 100 hours. f. postcloture debate time could be extended or reduced. but not below ten hours. by a threefifths vote of the full Senate. g. after Sept. 1 of each year. a cloture motion could be brought to a vote the same day as introduced. after a maximum of five hours of debate. h. the demand to read a conference report in full could not be entertained. if printed copies of the report were available. i. "threeday rule" for availability of committee reports would be changed to a "twoday rule." with Saturdays. Sundays. and holidays included. and J. the Committee on Rules and Administration would be directed to provide for the installation of an electronic voting system in the Senate. The respective party leaderships ap-. pointed committees to study the Byrd resolution and to report their recommendations to the party conferences. The Republican committee was chaired by Senator TED STEVENS and the Democratic committee was chaired by Senator Gaylord Nelson. The committees met individually and jointly with the party leaders in an effort to devise an acceptable compromise. On Feb. 7. 1979. the Senate agreed to a unanimous consent request by Sen. ROBERT C. BYRD to limit consideration only to those portions of his resolution dealing with postcloture regulations. An alternate resolution. S.Res. 61. embodying points (e) and (f) above. was made in order for purposes or amendment. Under terms of the agreement. S.Res. 61 became the pending order of business. If a final vote on the disposition of the new resolution did not occur by 6 p.m. on Feb. 22. 1979. the original language of S.Res. 9 would again become the pending business before the Senate. During its consideration of S. Res. 9 and S. Res. 61. the Senate recessed rather than adjourned at the end of each days session. This was done to maintain the procedural fiction that the Senate was still in its first day of business. It has been maintained that the Senate is not bound by rules adopted by the Senate in previous Congresses. and that a majority of Senators can vote to end debate on rules changes on the first day of a new Congress. This ruling was temporarily upheld by the Senate in 1975. but later was overturned as part of the cloture rule reform compromise of that year. However. continuation of the Senate in its first legislative day maintained. the possibility that this contention could have been used to end prolonged debate on cloture rule reform that year. On Feb. 22. 1979. the Senate agreed to S.Res. 61 by a vote of 7816. As finally approved. the resolution established a cap of 100 hours of consideration once cloture has been invoked on a measure. At the expiration of the time limit. the Senate would proceed to the final disposition of the measure. no amendments then not pending would be in order. A motion to table. a motion to reconsider. and motions necessary to establish a quorum would be in order. however. The Senate may. by a threefifths vote. increase the amount of postcloture time. with the additional time to be equally divided and controlled by the Majority and Minority Leaders. or their designees. Under the resolution. each Senator is entitled to one hour of time. Senators may yield their time to the majority or minority floor managers of the bill. or to the Majority or Minority Leaders. None of the designated four Senators may have more than two additional hours yielded to him or her. These Senators. in turn. may yield their time to other Senators so requesting. It all available time expires. a Senator who has not yielded time and who has not yet spoken on the matter on which cloture has been invoked. may be recognized for ten minutes for the sole purpose of debate. The resolution provided that no Senator shall call up more than two amendments until every other Senator has had the opportunity to call up two amendments. The Chair is directed to recognize Senators who have not called up two amendments. and who wish to do so. in preference to a Senator seeking recognition to call up a third amendment. After cloture is invoked. the resolution stipulated that the reading of the Journal shall be dispensed with and that the Journal shall be approved automatically for the duration of postcloture consideration of a measure. Similarly. after cloture is invoked. the reading of amendments available in printed form will be dispensed with routinely. The former cloture rule made in order amendments introduced prior to the completion of the cloture vote. S. Res. 61 made ii order first degree amendments (amendments to a bill) submitted by 1 p.m. of the day following submission of a cloture motion. second degree amendments (amendments to amendments) would be in order if submitted in whiting one hour prior to the cloture vote. After the Senate passed S. Res. 61. It agreed to place S. Res. 9 on the Senate Calendar. The Senate also adjourned. thus completing the first legislative day of the 96th Congress. As Senator Bran explained. this action would guarantee that if the Senate resumed consideration of S. Res. 9. a twothirds vote would be required to invoke cloture on the measure. Mr. President. I ask unanimous consent that a table entitled "Senate Votes on Cloture Motions. 19191980.". be printed at this point in the RECORD.