Dawes vs. Moses

Charles G. Dawes, Vice President, and Knight errant for reform in the rules of the Senate, traveled into the fastnesses of New Hampshire, home of Senator George Higgins Moses, protagonist of the Senate rules as they are. At Manchester, he jousted in the lists, setting forth his arguments, many of which were rebuttals to his opponents' replies. This was the substance of his argument tor a strict cloture (closure) rule--i.e., a rule that would enable the Senate to stop debate in order to secure a prompt vote:

1) The power of a minority to hold up legislation by filibustering leads to the making of barters, whereby, if they do not avail themselves of their privilege they secure as concessions legislative transactions which "could not endure publicity."

2) The filibuster power is a grave menace which must be removed. Since May 12, 1910, the majority and minority leaders of the two parties have had to arrange on 66 occasions unanimous consent agreements in order to get consideration for important legislation. In the 63rd Congress (1913-15) the Rivers and Harbors bill was debated 32 days; the Panama Canal bill 30 days; the Federal Trade Commission bill 30 days; the Clayton Act 21 days and then for 9 days more, after it came from conference. As a result of this condition, the present rule for a deferred cloture by a two-thirds vote was adopted (1917. Yet, immediately afterwards, six important appropriation bills were killed by filibuster.

3) It is not true that unrestricted debate tends to reduce the number of bills enacted. In the last eight congresses, chiefly because of filibusters, seven extra sessions have been held, which resulted in the passage of 386 bills and 98 public resolutions. Likewise, in the last five Congresses, the House with 435 members, and a cloture rule received 82,632 bills and resolutions and passed 2,931, whereas the Senate with 96 members received 29,332 bills and resolutions and passed 3,113--182 more.

4) Because of great delays in Senate procedure through filibusters, the Senate at times has to make undue haste, passing bills in less time than it takes to read them, on one recent occasion passing more than 100 bills in about 100 minutes. Some of the bills so passed appropriate millions of dollars.

5) The reasons why the Senate's original cloture rules were dropped are no longer valid. At its inception, the Senate had rules for cloture. In 1806, these rules were dropped. Then the Senate had only 34 members, represented less than 7,000,000 people, and had comparatively little business to transact--so little that cloture had been invoked only three times in 17 years, and the cloture rules were discarded as unnecessary.

"The people of this Nation believe in their Constitution, but they do not understand the justice of Senate rules under which, at times, one senator exercises a power greater than the veto power granted by the Constitution to the President of the United States; under which, at times, one senator can render the Senate impotent, and under which secret legislative barter is encouraged, which not only modifies the due course of legislative processes, but legislation itself." Almost simultaneously with the making of Mr. Dawes' speech, appeared Senator Moses' "reply"--an article in The Saturday Evening Post. His remarks were more discursive than Mr. Dawes', but in their course he made the following points:

1) He challenged anyone to point out "a measure of real advantage to the country which has ever been defeated or even unduly delayed in its enactment through the operation of the rules of the Senate. I am willing to say that within my own close observation of the Senate and its modus operandi I have seen more than one disastrous or costly measure prevented from passage simply because its opponents have known how to use the Senate rules."

2) Filibusters are not frequent. From 1841 to 1917 there have been only 19 occasions when a real filibuster has taken place in the Senate.

3) Cloture results in inadequate consideration of important measures. "I have seen [in the House which has a cloture rule] a measure involving scores of millions of annual expenditure for all time to come put through with only 40 minutes of debate and the time parceled out by the opposing leaders. The founder of this journal [Benjamin Franklin], speaking in the Constitutional Convention, and using words suited to the polite customs of that day, described the Senate as 'the saucer into which the tea of legislation would be poured for cooling before drinking.' "

4) Powers of delay are a necessary protection, at times. Six states now provide nearly two-thirds of the federal revenue. These six states have only twelve Senators in 96, and if this minority had not the use of the threat of a filibuster their states might be horribly robbed.

5) It is possible to conduct concealed filibusters, where every speaker speaks directly to the issue, which it is almost impossible to break up by rule. Such a filibuster was conducted in the last session of the 65th Congress in 1918-19 in order to prevent the passage of revenue bills by the Democrats until the new Republican Congress should come into office "No one could have said that the ensuing debate was not legitimate. It transcended no rule of relevancy, and it proceeded to the very eve of adjournment. Then, early in the evening of March third, the filibuster emerged from its concealment, and the three Senators --Sherman of Illinois, LaFollette of Wisconsin, and France of Maryland-- undertook to hold the floor until the following noon. Their undertaking was successful-- so successful, indeed, that the tensity of feeling among the majority found sardonic expression in the words of Vice President Marshall, who at the stroke of noon, halted the last of the filibusters by declaring the Senate of the 65th Congress adjourned sine deo, instead of sine die."

6) There are other tactics instead filibustering which can be used to cause delay. On one occasion five and a halt hours on end were spent in roll-calls by means of clever parliamentary tactics.