The Hesitant Senate
When JOSEPH S. CLARK was elected mayor of Philadelphia in 1952, he became the first Democrat in sixty-seven years to hold that office. Previously he had served as city controller of Philadelphia, and he teas active in the Committee of Seventy, which cleaned up corruption in that city. In 1956 he was elected to his first term in the Senate, where he is one of the most forthright and vigorous liberals.
Senator JOSEPH S. CLARK
ON January 15, 1957, Lyndon Johnson, then the senior senator from Texas and majority leader, gave a lunch for the newly elected freshman senatorial Democrats. Only six of us had successfully breasted the Eisenhower tidal wave of the preceding November: Frank Church of Idaho, John Carroll of Colorado, Frank Lausche of Ohio, Herman Talmadge of Georgia, Strom Thurmond of South Carolina, and I. As we sat down to our steaks at the long table in the office of Skeeter Johnson, the urbane and charming Mississippian who serves as secretary of the Senate, each of us found at his place a copy of Citadel: The Story of the U.S. Senate, autographed “with all good wishes” not only by its author, William S. White, Pulitzer Prize-winning biographer of Robert A. Taft, but by the majority leader as well.
During the course of the luncheon, Senator Johnson encouraged us to consider Mr. White’s book as a sort of McGuffey’s Reader from which we could learn much about the “greatest deliberative body in the world” and how to mold ourselves into its way of life.
I did my homework.
Mr. White, assigned from 1946 to 1956 by the New York Times to cover that “peculiar institution” in which I serve, eulogizes the post-World War II Senate much as Allen Drury did in Advise and Consent. He writes with affection of its “Tone and Timelessness,” the concept of the Senate as a “club,” its ability to divorce itself almost completely from the outside world, to a part of which, nonetheless, a third of its members must return every two years to seek re-election. With tender sympathy he sketches an atmosphere redolent with mint juleps and Confederate gentlemen. He speaks of its peculiar rules and its even more peculiar customs. “The Senate,” he writes in conclusion, “is a place upon whose vitality and honor will at length rest the whole issue of the kind of society that we are to maintain.”
Perhaps he is right; if so, we in the Senate had better change our ways. For, a legislative body conducting business as Mr. White suggests the Senate does would be totally incapable of preserving either vitality or honor anywhere.
Actually, Donald R. Matthews was closer to the truth when he referred to Mr. White’s infatuation with the Senate of the fifties as “an almost embarrassing love affair.” In U.S. Senators and Their World, he wrote of the Senate as “a legislative chamber of imposing power which sometimes finds it impossible to act; an institution heavy with tradition whose members occasionally act like school boys on a spree.” And schoolboys on a spree are not good enough in today’s world. For the problems which confront us are getting harder, not easier. And the Senate had better be on its toes if it is to play its part in solving them.
There are two major unanswered political questions: First, how can we substitute real peace and disarmament under internationally enforced world law lor the delicate balance of nuclear terror under which we have been living since Russia acquired atomic weapons in 1949? Second, how can we adjust our oasis of prosperity to that desert of despair in which a constantly increasing number of underprivileged people presently exist, a desert where two out of every three human beings go to bed hungry every night?
But there are a host of scarcely less important worries. On the international scene, to mention only a few, there are Southeast Asia, South Africa, Latin America, Cuba, the Congo, Russian imperialism, the challenge of competitive coexistence, Communist China, Berlin — indeed, the whole German question — any one of which may erupt at any time into angry violence. And then there are world trade, the tariff, and the Common Market. At home there are education, unemployment, the proper utilization of manpower, housing, agriculture, the renewal of our cities, problems of the aged and aging, civil rights, tax reform, and the constant threat of inflation.
Problems as complex as these could not be resolved successfully in Mr. White’s Senate. We must sharpen our obsolete senatorial tools. For, our country and the civilization of which we are a part will not survive unless we awaken from our national political lethargy and speed up the pace of intelligent governmental action. We have inherited a government of checks and balances, based on the eighteenth-century theory that that government is best which governs least and on Lord Acton’s precept that power tends to corrupt, and therefore should be grudgingly granted. Our national, state, and local governments are divided into executive, judicial, and legislative branches, thus diffusing power among nine governmental sources — each of which inhibits action. It is with the decision-making power of the Senate at the national level that this article is concerned.
The Senate was originally conceived in 1787 as a body of wise elders, chosen not by the people but by the state legislatures, and selected because they could be relied upon to defeat impetuous action by either the popularly elected House of Representatives or by a President who, if not checked, might in time become a tyrant. In a day when governmental action, if needed at all, could afford to be slow, when the memory of the “tyrant” George III was fresh in men’s minds, this original conception, favoring inaction, made good sense.
Does it still do so? I think not.
Our first controversy when I came to Washington in 1957 was an attempt to modify the rules of the Senate so as to put reasonable limits on debate. “The Senate,” said Woodrow Wilson, “is the only legislative body in the world which cannot act when its majority is ready for action.” We proved him right in 1957, in 1959, and twice in 1961. In each instance, a majority of the Senate decided it did not wish to change its rules at the time and in the manner then proposed in order to pass legislation a majority favored. Yet, until the rules are changed, a small but determined minority can prevent the Senate from performing its constitutional duties by preventing any matter from being decided on its merits.
ROADBLOCKS TO ACTION IN COMMITTEE
Today, legislation proposed by the President can be bottled up in committee indefinitely by a determined and hostile chairman. Thus, no civil rights bill has ever been recommended to the Senate by the Senate Judiciary Committee, despite urgent recommendations by both President Truman and President Eisenhower. Nor, it may be safely predicted, will President Kennedy have any better luck if he ever decides to attempt to implement his campaign commitment. Senator James Eastland and his Southern colleagues, assisted by rightwing Republicans, have an unbreakable majority in the committee. The last, rather innocuous civil rights legislation debated in the Senate was tacked on as a non-germane amendment to a measure entitled “A bill to authorize the Secretary of the Army to lease a portion of Fort Crowder, Missouri, to Stella Reorganized Schools, R-l, Missouri.”
Even if legislation finally reaches the floor, it can be emasculated in the process by hostile chairmen who control bipartisan majorities in their committees. Thus, Senator Harry Byrd and his conservative colleagues in the Finance Committee have successfully prevented tax-reform measures such as limitation of the business-expense “swindle sheet” deduction, the oil-depletion allowance, and withholding of the tax on dividends and interest at the source from being incorporated in the committee drafts of the annual bills extending corporation and excise taxes. In each such case, efforts had to be made on the floor, sometimes successfully, sometimes not, to amend the bill — always a difficult task when the chairman, supported by a majority of the committee, objects.
Any member of the Senate can prevent any committee from meeting while the Senate is in session. If the measure is complicated, requiring prolonged executive sessions, this is a particularly effective method of preventing action, especially toward the end of a congressional session. All last spring and summer, Senator Barry Goldwater, by exercising this right, delayed committee action on extension and revision of the National Defense Education Act. Eighteen executive sessions were held in the Labor and Public Welfare Committee and its Education Subcommittee to mark up the bill. Thirteen of these were forced to recess after an hour or two because objection was raised formally or informally to the meeting’s continuing while the Senate was in session. On the other five occasions, the Senate did not meet on the day of the committee session; but toward the end of the summer, the Senate meets almost every day.
Senator Morse of Oregon, chairman of the Education Subcommittee and responsible for managing the Administration bill, would call an executive session for ten or nine thirty or even nine A.M. It would be difficult to get a quorum of the committee to show up on time, particularly since several of the Republicans would always fail to appear. At last, a quorum would appear an hour or two before the Senate met, at eleven or noon, as the case might be. A controversial section of the bill would be brought up for discussion. Assisted by his colleague on the committee. Senator Dirksen of Illinois, the able and distinguished junior senator from Arizona (to lapse into Senate semantics) would criticize the proposal at some length, frequently enticing Democratic proponents into extended committee-room debate.
Senator Morse’s eyes would wander to the clock over the door in the committee room. Five minutes, four minutes, three minutes to go before the Senate convenes. Finally, the discussion would be interrupted by the ringing of the bell, which silences talk. The Senate was in session. “I’m sorry, Wayne, but under the rule I must object to the subcommittee’s meeting further.” So that was that until the next day. Senator Goldwater was quite within his rights under the rules. In the end, the subcommittee got the bills out of committee and on the calendar, but too late for floor action until 1962.
STALLING ON THE SENATE FLOOR
If a measure is voted out of committee and reaches the calendar, it must be brought to the floor by motion of the majority leader approved by the policy committee of the party in power. The Democratic policy committee, until recently, was controlled by the opponents of action. As a result of agitation by a number of liberal Democrats led by Senator Albert Gore of Tennessee, the policy committee was reconstituted so as to give the Kennedy men a majority.
If the motion to take up is approved, debate on the merits of the measure is unlimited and need not be germane. Amendments can be offered without limit: so can amendments to amendments and substitutes for amendments. Amendments need not be germane to the bill or to the amendment to which they are offered. On each of these, debate is unlimited and need not be germane. Thus, when extension of the life of the Civil Rights Commission for two years was proposed last summer, twenty-one amendments were filed. Had any of these amendments been called up for action, any number of amendments to each amendment could have been proposed. Senator Javits’ amendments constituted a comprehensive civil rights bill. Senator Ervin of North Carolina proposed an amendment which would overturn the recent Supreme Court decision ruling out confessions obtained during unreasonable periods of detention after arrest and prior to arraignment. An amendment by Senator Thurmond of South Carolina would have invalidated all acts of Congress impinging on state statutes unless the former specifically “pre-empted” the field.
The Southerners began to talk. I said to Senator Eastland; “Jim. how long are you fellows going to keep this up?” He replied with a grin: “Until we know we have the votes to table those javits amendments.”
After a couple of days the leadership capitulated. The majority leader, Mike Mansfield of Montana, announced that he would move to table all amendments which were called up. Senator Dirksen, the minority leader, concurred. A majority of the Senate supported the leadership. Dow n the drain went not only the Javits amendments but also my own proposals to extend the commission’s life indefinitely, or, in the alternative, for four years. A determined minority had once again forced its will on the Senate.
Actually, Mansfield and Dirksen. under the present rules, had no alternative. It was late in the session. The calendar was crowded with “must” legislation sponsored by the President. Already senators were clamoring for adjournment. The leaders knew that the Southerners would permit a short extension of the commission’s life if no serious effort were made to enact important civil rights legislation, advocated in the platforms of both political parties. The sensible thing to do was to compromise. So, compromise they did. The point is that the rules give to a small minority the power to frustrate the will of a majority, which was unwilling at that time to try to break a filibuster.
Each legislative day, as debate proceeds, any senator can require the journal of the preceding day to be read in full. Such reading ordinarily takes about four hours. On August 21, 1961, I objected to a request by Senator Mansfield, majority leader, for unanimous consent to dispense with the reading of the journal. The clerk began to drone out the record of the previous day’s proceedings. For the better part of an hour the Senate was immobilized. Then, the point having been made, I withdrew my objections. Had I wished to exercise all of my rights under the rules, I, acting alone, could have prevented any action by the Senate for several days.
If a bill is passed and is in different form from a bill on the same subject passed by the House, the differences must be resolved in conference or the bill will not become law. In recent years, Senate conferees from some committees, notably finance, have been selected by seniority and are often in opposition to action taken on the Senate floor which reverses recommendations of the committee. Conferees holding such views are, to put it mildly, unlikely to support for long the floor action of the Senate when it differs from their conception of what is wise. Thus, amendments adopted on the floor of the Senate, but not included in the House bill, closing tax loopholes were quietly and quickly abandoned in conference by Senate Finance Committee conferees who had opposed them in committee and on the floor.
CHANGING THE RULES
It may well be asked: “Is there no way of modernizing Senate rules and procedures so as to put an end to these stubborn roadblocks?” The answer is at best a qualified yes.
There is a provision in the Senate rules requiring that “all changes in the rules” can be made “only in accordance with the rules.” This means that each of the methods of defeating or delaying a bill is available to defeat a change in the rules. Proposed changes sponsored by me and designed to limit or abolish such delaying tactics are presently resting in the Committee on Rules and Administration. Very little money is being wagered on their surmounting the very difficulties they are aimed at eliminating. Senate Rule XXII in theory permits some limitation of debate. But it takes two thirds of those senators present and voting to invoke it — 67 for all practical purposes; and there are at present 60 senators at the most who are willing to vote to limit debate.
Vice President Nixon, as presiding officer of the Senate, ruled in 1959 and again in January of 1961 that provisions in Senate rules designed to prevent the Senate, at the beginning of each new Congress, from adopting new rules or modifying existing rules by majority vote were unconstitutional. In his view, a majority of the Senate could set aside existing rules and adopt new ones in January of odd-numbered years. Debate could be terminated under general parliamentary law by “moving the previous question,” a parliamentary device available in one form or another in practically every legislative body in the free world except the Senate of the United States. A ruling of the presiding officer thus terminating debate (or refusing to do so) could be appealed to the whole Senate. If the parliamentary situation is such in 1963 that a ruling can be obtained, there is some hope that a majority of the Senate would be willing to modify Rule XXII to permit limitation of debate by a three fifths instead of a two thirds vote. But, for the present, one third plus one of the members of the Senate present and voting can prevent any measure, regardless of its nature, from ever coming to a vote.
One third plus one means 34 senators. By my count there arc presently 61 senators who, by and large, would support action programs strongly recommended by the President and intended to strengthen international understanding and the causes of world peace and disarmament. The count is about the same for moderate civil rights legislation in aid of school desegregation and fair employment practices. This leaves 39 senators in opposition — a leeway of 5 votes for those who resist change.
My box score breakdown follows:
Kennedy supporters 43
Anti-Kennedy Democrats 10
Moderate liberals 7
Dirksen-Goldwater axis 29
61 39 100
This analysis varies a little, depending on the particular issue. But, barring an international or domestic crisis of the first magnitude, it is highly unlikely that in 1962 the Senate will be able to act with the alacrity it needs if a determined minority desires to prevent action.
Does this mean that the President’s program in a year of tension, such as 1962, will be lost? Not at all. Much of it will probably go through. Most important legislation supported by the President finally reaches the floor in one way or another, largely because no group of senators is strongly enough against it to utilize the weapons of delay and obstruction which are available to them. Opposition in committee frequently brings watering down and compromise, which make the measure less distasteful to its enemies and thereby weaken their ardor. Some of the opposition is more political — that is, for home consumption — than ideological. It is therefore less intransigent than it seems.
The Senate usually acts on major bills by “unanimous consent agreements,” limiting debate after a reasonable opportunity has been given to those who wish to speak at length. To be sure, any one senator has the right to withhold such consent. But those who do are frowned upon by a majority of their colleagues, who usually want to vote promptly and go home for dinner.
There is a curious and, on the whole, laudable esprit de corps in the Senate. Most politicians want to be both liked and respected. Senators are no exception. There is strong pressure not to make a nuisance of oneself, not to fight the leadership of one’s party, not to appear as a mere obstructionist, not to become emotionally involved in any particular bill or controversy, always to be able to sit down at lunch with one’s colleagues in committee or on the iloor without embarrassment resulting from one’s behavior of the day before.
Finally, the Senate of 1962 is quite a different body from the Senate of 1957, I can well remember the tense situation when we met in Democratic caucus the morning of January 3, 1957. There were then in the Senate 47 Republicans and 49 Democrats, including Frank I.ausche, an independent, just elected the junior senator from Ohio, ostensibly as a Democrat. We were all there at the caucus but Frank. Nobody knew where he was or what he was up to.
We chose Lyndon Johnson leader. He made a little speech saying he did not know whether he had been elected majority or minority leader. It Lausche voted with the Republicans, as we feared, the vote on the leadership would be a tie. Vice President Nixon would break it, and the Republicans would organize the Senate. We went to the floor. A motion was made to elect Lyndon B. Johnson majority leader. William Knowland was nominated by the Republicans. The roll was called in alphabetical order. When Lausche’s name was reached, there was a dramatic pause. Finally he voted “Aye.” I can remember the mounting tension as the roll call began, the buzz of conversation, and the sighs of relief from both floor and galleries as doubt grew and was at length dispelled. The Democrats had organized the Senate by the skin of their teeth.
Two years later, things were quite different. The election of 1958 brought 15 new liberal Democrats to the Senate to replace as many, on the whole conservative, Republicans. The 3 new Republicans were all in the liberal wing of their party. Instead of a 49-47 majority, the Democrats had a 65-35 advantage. Ultimate power shifted to 15 Democratic “switch-hitters,” largely controlled by the leadership, men who would vote right one day and left the next, pretty much as Lyndon Johnson wanted.
Still, even in 1959, after the 1958 turnover in membership, there was no real sense of urgency. The White House proposed no dramatic program. There was no change in the Senate leadership’s outlook.
The election of 1960 supplied the missing element. Senator Kennedy went to the White House. Senator Johnson, no longer majority leader, became Vice President and lost his senatorial power. Among the new senators arc four young vigorous liberals, Burdick of North Dakota, Metcalf of Montana, Pell of Rhode Island, and Maurine Neuberger of Oregon, who took her highly respected late husband’s seat. The average age in the Senate has dropped; the level of vitality has risen. With Mike Mansfield as leader and Hubert Humphrey as whip, a score of liberal measures passed the Senate last year, among them minimum-wage legislation, federal aid to public schools, an expanded housing program, the Wilderness Bill, O.E.C.D., the Retraining for the Unemployed Bill, the Peace Corps, the Arms Control and Disarmament Agency, a vastly better foreignaid bill. The votes were there to pass them. The opposition chose not to use the tools of delay which could have brought about defeat of the measures.
But there is more to the change in voting strength than mere numbers indicate. The caliber of the men in the Senate has changed drastically in the last five years. Gone are the Joe McCarthys, the Jenners, the Welkers. Gone, too, are Bill Knowland, Styles Bridges, and Edward Martin, earnest, sincere conservatives. Gone are fine, but elderly, liberals like Theodore Francis Green and Jim Murray. Bill Langer was the last old ex-Populist to pass from the scene, just as Tom Connally wore the last string tie.
In their stead are men in their forties, and even late thirties: Ed Muskie of Maine, Eugene McCarthy of Minnesota, Frank Church of Idaho, Phil Hart of Michigan, Gale McGee of Wyoming, Bill Proxmire of Wisconsin, Ralph Yarborough of Texas, to name only a few. These men and a dozen others, some of them older, like Wayne Morse of Oregon, Jacob Javits of New York, John Carroll of Colorado, Clifford Case of New Jersey, and Paul Douglas of Illinois, but all of them twentiethcentury men, are on their way to make over the Senate so as to enable it to perform its constitutional function in the modern world. They are not interested in the Senate of Mr. White’s Citadel. They understand the deadly peril in which we live. They know the need for reform at home and for security and peace abroad. They will follow aggressive leadership. Eventually they will change the rules.
Having said all this, I must conclude on a note of grave concern. There are two areas where the Senate is not yet prepared to act, where action may well be essential to survival. In the case of civil rights, only Senate procedures and rules block the way. In the area of foreign affairs, the Constitution itself sets requirements that delay action.
Civil rights legislation is necessary not only to our domestic well-being but to the success of our foreign policy. At home, an awakened and better-educated Negro citizenry is just not going to put up much longer with a denial of the equal protection of the laws. Progress has, of course, been made. Strong executive action is bringing more progress. But there remain wide areas of discrimination in employment, in education, in housing which can be eliminated only with the aid of further legislation. And discrimination is actively supported by a highly vocal minority both north and south of the Mason-Dixon line and ably represented in both houses of Congress. Meanwhile, abroad, Africa, Asia, and large areas in Latin America write off our protestations of liberty and equality as hypocrisy. The resulting endless and continuing damage to our position of world leadership is growing more serious every day.
Civil rights is a highly emotional issue. Southern senators feel strongly enough about it to oppose legislation with every parliamentary device at their command. There are 18 of them in the Democratic Party. Haifa dozen more Democrats would vote for a civil rights bill but against limitation of debate. A minimum of 10 Republicans, probably more, would join forces. There is a majority in the Senate for civil rights legislation. But at least one third of all senators plus one would vote against limiting debate.
Thus, the Senate cannot act, though its majority is ready for action. Knowing this, and fearing reprisals in other areas of his program, the President has been hesitant to antagonize the Southerners. So, a majority throughout the country cannot act. The American giant is rendered impotent in this area by procedures at variance with our American concept of majority rule. And the procedures appear impervious to change.
The seemingly perpetual international crisis becomes even more serious when we consider the constitutional provision that two thirds of the Senate present and voting is required for the ratification of a treaty. Consider the areas in which delicate negotiations looking toward the establishment of permanent peace must be brought to successful conclusion through the treaty process: trade agreements, nuclear testing, strengthening the Charter of the United Nations, repeal of the Connally amendment to the ratification of our adherence to the World Court, conclusion of a meaningful disarmament agreement.
In each instance, some yielding of national sovereignty is required. In each instance, an informed executive exercising his best judgment will probably conclude that certain risks must be taken in the hope that the cause of lasting peace may be advanced. Conservative public opinion will be rallied against ratification of the treaty by the Senate. One can predict in advance the recourse to the flag, to patriotism, to the pocketbook, to the deeply felt distrust of “foreigners.” A test of intellectual and emotional maturity will be presented each time.
It will never be popular to vote to yield any small part of national sovereignty. A President can perhaps be excused if, realistically appraising Senate opposition, he fails to assume aggressive leadership in all of these areas. The history of Woodrow Wilson and the League of Nations is written too plainly not to be read and understood by every occupant of the White House.
Today there is a group which comprises more than one third of the Senate plus one who would be loath indeed to move very far toward that internationalism which many believe essential to peace and well-being. And this group has at its command not only the constitutional requirements of a two-thirds vote, but all the rules and procedures of the Senate as well.
What will the role of the Senate be in the 1960s? Will it remain a hesitant supporter of that status quo so much admired by those friends of Mr. White’s who resist change in a changing world? Or will it. with its new members, under its new and vigorous leadership, spurred on by the President, take arms against the troubles which contront it, and by opposing — somehow or other — end them before it is too late?
It requires a rasher prophet than the author to hazard the answer. One can only hope for the best.