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Congress - Senate Changes in Rule XXII
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Congress - Senate Changes in Rule XXII
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John O. Marsh Files (Ford Administration)
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The original documents are located in Box 9, folder "Congress - Senate Changes in Rule
XXII" of the John Marsh Files at the Gerald R. Ford Presidential Library.
Copyright Notice
The copyright law of the United States (Title 17, United States Code) governs the making of
photocopies or other reproductions of copyrighted material. Gerald R. Ford donated to the United
States of America his copyrights in all of his unpublished writings in National Archives collections.
Works prepared by U.S. Government employees as part of their official duties are in the public
domain. The copyrights to materials written by other individuals or organizations are presumed to
remain with them. If you think any of the information displayed in the PDF is subject to a valid
copyright claim, please contact the Gerald R. Ford Presidential Library.
Digitized from Box 9 of The John Marsh Files at the Gerald R. Ford Presidential Library
FLOW CHART PREPARED
BY: Wm KENDALL.
RESOLUTION To AMEND RULE XXII
PROJECTED SCENARIO
OF RULE XXII FIGHT
ON SENATE PLOOR.
WRITTEN NOTICE MUST HAVE BEEN
GiVEN UNDER RVLE XL
one LEGISLATIVE DAY MUST PASS
RULE XIV
PROPONENTS MOVE TO
CONSIDER
1.
2.
3.
OPPONENTS MOVE TO
OPPONENT MAY ALSO SEEK
OPPONENTS MAY RAISE
TABLE MOTION TO
TO DEFEAT MOTION TO
CONSIDER - simple
CONSIDER- simple MAJORITY
POINT OF ORDER
MAJORITY NEEDED
4.
A FILIBUSTER DEVEL OPS
Cloture 13 SOUGHT UNDER
PRESENT RVLE XXII REQUIRING
TWO-THIRDS VOTE
CLOTURE IS SOUGHT BUT while A
MAJORITY IS OBTAINED, Two- THIRDS is
NOT GAINED. THE VICE PRESIDENT
NOW HAS THREE OPTIONS
IF TWO- THIRDS OBTAINED-
VOTE THEN TAKEN ON
RESOLOTION- SIMPLE MAJORITY
1.
2.
3.
OPPONENTS MOVE TO
OPPONENT MAY ALSO SEEK
OPPONENTS MAY RAISE
TABLE MOTION TO
TO DEFEAT MOTION TO
CONSIDER - simple
POINT OF ORDER
MAJORITY NEEDED
CONSIDER. - simple MAJORITY
4.
A FILIBUSTER DEVEL OPS
Cloture is SOUGHT UNDER
PRESENT RVLE XXII REQUIRING
TWO-THIRDS VOTE
CLOTURE IS SOUGHT BUT while A
MAJORITY IS OBTAINED, TWO- THIRDS is
NOT GAINED. THE VICE PRESIDENT
NOW HAS THREE OPTIONS
IF TWO- THIRDS OBTAINED-
VOTE THEN TAKEN ON
RESOLUTION - SIMPLE MAJORITY
1.
2.
3.
THE V.P. Rules IN FAVOR
THE VICE PRESIDENT RULES AGAINST
THE Vice PRESIDENT CAN EXPRESS
OF PROPONENTS -
PROPONENTS- DECLARES DEBATE
NO OPINION: Rules IT A CONSTITUTIONAL
DECLARES DEBATE ENDED
NOT ENDED BECAUSE NO TWO-THIRPS.
QUESTION ONLY SENATE CAN DECIDE. 1
PROPONENTS APPEAL RULING -
OPPONENTS APPEAL
SUBJECT TO UNLIMITED DEBATE
RULING
a.
b.
V.P. PUTS Question
V.P. PUTS Question
To SENATE
a.
To SENATE AND
PRUPONENTS MOVE
b.
WITHOUT DEBATE
ALLOWS DEBATE
To TABLE APPEAL
PROPONENTS NeeD
PROPONENTS NEED MOVE
"PRIeNDLY MOTION TO
BY V.P. TO MOTION TO A
TABLE IN FACE OF DEBATE
VOTE WITHOUT DEBATE
RULE (Resolurion)
ANOTHER PILIBUSTER
IF TABLED- VOTE
IF TABLING FAILS -
IF NO DEBATE- Res
IS AMENDED
BEGINS
ON RESOLUTION
DEBATE CONTINUES
comes TO immediate VOTE.
IS TAKEN
VOTE
MOTION
ON
MOTION
CARRIES
TO
MOTION
CURTAIL
TO
DEBATE
CURTAIL
POINT
MOTION
DEBATE
OF
PARLIAMENTARY
TO
BY
INQUIRIES
ORDER
MAJORITY
TABLE
VOTE
MOTION
FAILS
VOTE
2/3
ON
MOTION
AFFIRMATIVE
TO
MOTION TO
PROCEED
PROCEED TO THE
VOTE
TO
CONSIDERATION
CONSIDERATION
OF
S. RES. 4
MOTION
To
INVOKE
CLOTURE
UNDER
RULE 22
1/2 BUT
RULE
BULING IS:
LESS THAN
CLOTURE
APPEALABLE
2/3
&
NOT
DEBATABLE
FILIBUSTER
AFFIRMATIVE
VOTE
INVOKED
JAN 11 1974
THE WHITE HOUSE
M
WASHINGTON
January 10, 1975
MEMORANDUM FOR:
JACK MARSH
PHIL BUCHEN
FROM:
DICK CHENEY
D
The President wants to see the paper that is being prepared on what
position we might want to take with respect to changes in Rule 22 in
the Senate regarding filibusters. We may ultimately want a meeting
on that sometime on Monday, but the paper that's now being worked
on in conjunction with the Vice President ought to go to the President
before anything is finally locked in.
JAN 10 1975
THE WHITE HOUSE
WASHINGTON
January 10, 1975
MEMORANDUM FOR THE PRESIDENT
THROUGH:
MAX L. FRIEDERSDORF
FROM:
WILLIAM T. KENDALL
with
SUBJECT:
The Rule XXII Resolution
SUMMARY: An attempt will be made at the opening of the 94th Congress
to amend Rule XXII of the Standing Rules of the Senate. The Resolution
will provide that three-fifths, rather than the current two-thirds, of
those Senators present and voting may invoke cloture and limit debate
on a pending matter.
First, this group may attempt to get the necessary two-thirds under
old Rule XXII to stop a filibuster which will surely develop. Second,
they will attempt to combine a favorable Vice Presidential ruling on
the question with a Senate vote favoring that ruling in order to get a
vote on the resolution.
The scenario will probably be as follows for the second option:
Senator Mondale will seek recognition following the opening formalities,
having submitted written notice (under Rule XL) of his intention to amend
a Senate rule. He will then seek to obtain assurances that transaction of
business will not prejudice his right to consider a rules change; that by
operating under the rules he is not acquiescing to those rules - particularly
Rule XXII; and try to obtain assurances that Senate will adjourn, rather
than recess, so that a legislative day will pass. (Rule XIV)
On the second legislative day, Senator Mondale will request the presiding
officer to lay the resolution before the Senate during the morning hour and
at the conclusion of morning hour, the resolution will be placed on the
calendar. Mondale will then ask for its immediate consideration.
The opponents will have these options:
1. Move to table motion to proceed. Majority needed.
2. Seek to defeat motion to take up resolution. Again a majority.
Page 2
3. Raise a point of order against motion to consider.
4. Filibuster the motion to consider and/or the resolution itself.
Senator Mondale can respond in two ways to option 4. He can attempt
to invoke cloture under the old rules (XXII). OR, he can attempt to
combine a favorable Vice Presidential ruling with a Senate vote supporting
that ruling.
The Vice President can rule favorably or unfavorably.
If he rules favorably, Senate will proceed with cloture vote and when a
majority (but less than two-thirds) votes to invoke cloture, the Vice
President will rule debate ended. This ruling will be appealed by the
opponents. Mondale will move to table the appeal. If the tabling is upheld,
cloture is invoked and Mondale gets a vote on his original resolution (to
change Rule XXII). If the Vice President rules unfavorably, the cloture vote
proceeds. When a majority (but less than two-thirds) votes for cloture, Mondale
will appeal the Vice President's contention that debate is not ended. The key
here is that Mondale's appeal is subject to unlimited debate. Mondale needs
a "friendly" tabling motion to end debate on the appeal and needs a favorable
vote on this to end debate. The only hope for Mondale under this option is
for the Vice President, on appeal, to put the question to the Senate without
debate (as Humphrey did in 1969).
The Vice President may decide not to express an opinion (as in the case
of Johnson in 1963, Humphrey in 1967 and Agnew in 1971). He may rule
that it is a constitutional question to be ruled on by the Senate rather than
by him and subject to appeal by the Senate. Mondale will hope that the
Vice President will put the constitutional question to the Senate without
debate - otherwise the question is subject to unlimited debate, and probable
failure.
bcc: Vice President Rockefeller
Donald Rumsfeld
John O. Marsh, Jr.
Ronald H. Nessen
James Cannon
JAN 9 1975
THE WHITE HOUSE
WASHINGTON
January 9, 1975
ADMINISTRATIVELY CONFIDENTIAL
MEMORANDUM FOR: MAX FRIEDERSDORF
THROUGH:
WILLIAM KENDALL
FROM:
PATRICK E. O'DONNELL
POR
SUBJECT:
Cloture/Filibusters
As the attached papers will indicate, Senators Mondale,
Pearson and others are leading a bipartisan group (Hugh
Scott included) which will attempt on the first day of the
94th Congress to amend Senate Rule XXII (Cloture) to
require only 3/5's (60) instead of 2/3's (67) to invoke
cloture. An educated guess by Bill Hildenbrand is that
it will not have sufficient oomph to pass. If it does, we
are in deep trouble.
Rocky will be presiding when the attempt is made and MUST
be fully briefed on significance of the effort. To this end,
Senator Carl Curtis and members of the Senate Republican
Steering Committee will seek a meeting with the Vice President.
Needless to say, however, this in an internal business matter
of the Senate and the White House should avoid any public or
obvious role.
cc: Jim Cannon
John Marsh
ADMINISTRATIVELY CONFIDENTIAL
United States Senate
WASHINGTON, D.C. 20510
January 8, 1975
MEMORANDUM
FROM:
Tom Cantrell, Executive Director
Senate Steering Committee
SUBJECT: An Attempt to Amend Rule XXII
Attached for your careful perusal is a proposal to amend
Rule XXII of the Standing Rules of the Senate. Excerpting from
the attached, "The resolution to be introduced.
.will provide
that three-fifths, rather than the current two-thirds of those
Senators present and voting may invoke cloture and limit debate on
a pending matter."
One of the salient points which has been overlooked by
those proposing enactment of this legislation is the truly bad
legislation which as missed passage BECAUSE OF this Rule.
TC/ap
1 Attachment
URGENT
!
KITTRO
RULE XXII RESOLUTION
Background Information for Staff
I. WHAT
A large, bipartisan group of Senators will attempt, at
the opening of the 94th Congress later this month, to amend
Rule XXII of the Standing Rules of the Senate. The resolution
to be introduced by these Senators will provide that three-
fifths, rather than the current two-thirds, of those Senators
present and voting may invoke cloture and limit debate on a
pending matter.
II. WHY
It is impossible to accurately describe the effects of
the filibuster in the United States Senate. Bare statistics
reveal that dozens of bills have been blocked or delayed by
filibusters. But these statistics do not tell the whole story.
Dozens of filibusters have taken place that did not culminate
in record cloture votes. Many appropriations bills have been
talked to death because of something they did -- or did not
include. Many bills have been lost in the jam created by
filibusters. Filibusters have sought and achieved the enact-
ment of legislation favored by those leading filibusters.
Moreover, the threat of a filibuster has often blocked, delayed
or substantially altered legislation. The time lost is impossi'
to measure.
The sponsors of the Rule XXII resolution believe that
the two-thirds rule has exacted too dear a toll. It is simply
too difficult to end debate under the current rule. In the
58 years since the original cloture rule was adopted, there hav
been 100 cloture votes. Only 20 have been successful. Since
the most recent Senate consideration of this important matter
in 1971, the filibuster has been repeatedly used to block
social, economic, consumer, and reform legislation with the
sponsorship of Senators of all political philosophies and from
all sections of the country.
Despite this fact, the supporters of the resolution are
sensitive to the important minority rights and to the principle
of extended debate that Rule XXII is designed to protect. They
-2-
believe that the three-fifths cloture rule which they propose
would sufficiently protect these values while preventing the
frequent use of the filibuster to thwart the will of the Senate.
III. HOW
At the opening of the 94th Congress, a resolution will
be introduced to amend Rule XXII as described above. The
sponsors of the resolution will then follow two parallel
paths.
First, the sponsors will attempt to invoke cloture on
the anticipated filibuster by the opponents of change in Rule
XXII. They will do this by attempting to secure a two-thirds
vote on cloture motions filed under the old Rules.
At the same time, the sponsors will assert the constitutiona
right of a majority of the Senate to make changes in the Rules
uninhibited by provisions of the old Rules. Vice Presidents
Nixon (in 1957, 1959, and 1961) and Vice President Humphrey (in
1969) have confirmed this right. The sponsors will hope to
combine a favorable ruling on this question by Vice President
Rockefeller with a Senate majority vote sustaining this ruling
on appeal.
IV. WHO
The effort to amend will be led by Senator Mondale and
Senator Pearson. They hope to have the cosponsorship of a
majority of the members of the 94th Senate. A list of the
51 cosponsors of a similar resolution in 1971 is attached for
your information.
Cosponsorship by a majority of the Senate membership is
important (1) to withstand initial motions to table and (2)
to show that a majority of the Senate is, in fact, asserting
the constitutional right to change rules at the opening of a
new Congress under Article I, Section 5.
V. WHEN
The resolution will be introduced on the first day of the
94th Congress. It is vitally important that cosponsorship be
determined by January 9th, at the latest. If you wish further
Calendar No. 1
92D CONGRESS
1sT SESSION
S. RES. 9
IN THE SENATE OF THE UNITED STATES
JANUARY 25, 1971
Mr. CHURCH (for himself. Mr. PEARSON, Mr. ALLOTT, Mr. ANDERSON, Mr. BAYH,
Mr. BENTSEN, Mr. BROOKE, Mr. BEALL, Mr. Вукриск, Mr. CASE. Mr. Cook,
Mr. CRANSTON. Mr. DOMINICK, Mr. EAGLETON, Mr. FONG. Mr. GRIFFIN, Mr.
HARRIS, Mr. HART. Mr. HARTKE. Mr. HATFIELD, Mr. HUGHES. Mr. Hum-
PHREY, Mr. JACKSON, Mr. JAVITS, Mr. KENNEDY. Mr. McGoveRN, Mr. Mc-
INTYRE, Mr. MAGNUSON, Mr. MANSFIELD, Mr. MATHIAS, Mr. MONDALE, Mr.
MONTOYA, Mr. Moss, Mr. MUSRIE, Mr. NELSON. Mr. PACKWOOD, Mr. PASTORE,
Mr. PELL, Mr. PERCY, Mr. PROXMIRE, Mr. RANDOLPH, Mr. RIBICOFF, Mr.
SAXBE, Mr. SCHWELKER, Mr. Scorr, Mr. STEVENSON. Mr. SYMINGTON, Mr.
TAFT, Mr. TUNNEY, and Mr: WILLIAMS) submitted the following resolu-
tion; which was ordered to lie over under the rule (by Unanimous Consent)
JANUARY 26, 1971
Ordered to be placed on the calendar
FORD is LIBRARY GERALD
United States Senale
WASHINGTON, D.C. 20510
JAN C 1975
January 1975
Dear Colleague:
When the 94th Congress convenes in a few days,
we will cosponsor a Senate Resolution amending Rule
XXII of the Standing Rules of the Senate. The
Resolution will provide for cloture upon the vote of
three-fifths of those Senators present and voting.
Since the most recent Senate consideration of
this important reform in 1971, the filibuster has been
repeatedly used to block important social, economic,
and reform legislation with the sponsorship of
Senators of all political philosophies from all sections
of the country. Despite this fact, we are all sensitive
to the important minority rights and to the principle
of extended debate that Rule XXII is designed to protect.
We believe that the three-fifths cloture rule
which we propose would sufficiently protect these values
while preventing the frequent use of the filibuster to
thwart the will of the Senate.
We sincerely hope that you will join us in this
effort. If you would like further information about
the Resolution or would like to cosponsor, please
contact Robert Barnett (X5641) of Senator Mondale's
staff or Arthur Hill (X4774) of Senator Pearson's staff
as soon as possible.
Walter F. Mondale Sincerely James B. Pearson B. Peason
first Bazl
Birch Bayh
Fleyd Lloud M. Bentsen Benten
James Abourezk
Edward W. Blook
Edward W. Brooke
Mar Quentin N. Burdick
Clifford ford P. P. Case Case
DichCland
for Biden
Dick Clark
Joseph R. Biden, Jr.
Philpad Philip A. Hart
Vauce farike
Vance Hartke
You Floyd K. Haskell / Hashy
Mark O. Hatfield
Hubert H. Humphrey
Henry m Jachson
Jhuis Daniel Jacob HaiF K. K. Javits Inouye
Henry M. Jackson
Ed Edward M. Kennedy endy Wallen Warren Imogunsox G. Magnuson
Cha Charles Mr. McC Mathias Jr. Deorg George me McGovern Devern
Thomas J. McIntyre Gaylord Nelson
Joseph sh shoultoya
Joseph M. Montoya
Frank ed Moss Moss
Bob Packwood
John John O. Pastore Kinston
Bob Packwood
Club P.,,
Claiborne Pell
Jeanings Tennings Randolph Rondolgh
Hildett Fuch Scott
Robert T. Stafford
Adean Utermon
Adlai E. Stevenson, III
Stuart Symington
foles John V. Cunner Tunney
Hamin Horrison A. Williams, Jr.
Abraham are Rilicoff A. Ribico Charles Charles H. H, Percy Pay
JAN 14 1975
M
THE WHITE HOUSE
WASHINGTON
January 11, 1975
called 11:35 dl
MEMORANDUM FOR:
JACK MARSH
BILL BAROODY
MAX FRIEDERSDORF
RUSS ROURKE
FROM:
WAYNE VALIS WayneNol
SUBJECT:
Attempts to Amend
the Filibuster Rule
Although I do not know how useful this is, and I realize
the attack on the filibuster occurs at the beginning of every
session, I am enclosing something which Tom Cantrell,
Executive Director of the Senate Steering Committee sent
me on the coming effort to amend the filibuster rule.
I hope it is of interest.
FORD & LIBRARY 028870
CARL T. CURTIS
COMMITTEES:
NEBRASHA
FINANCE
AGRICULTURE AND FORESTRY
AERONAUTICAL AND SPACE SCIENCES
United States Senate
WASHINGTON, D.C. 20510
January 7, 1975
MEMORANDUM TO: Mr. Wayne Valis
Executive Office Building
Room 187
Washington, D.C. 20500
FROM:
Tom Cantrell, Executive Director
Senate Steering Committee
SUBJECT:
An Attempt to Amend Rule XXII
Attached for your careful perusal is a proposal to amend
Rule XXII of the Standing Rules of the Senate. Excerpting from the
attached, "The resolution to be introduced.
.will provide that three-
fifths, rather than " the current two-thirds of those Senators present
and voting may invoke cloture and limit debate on a pending matter."
One of the salient points which has been overlooked by those
proposing enactment of this legislation is the truly bad legislation
which HAS MISSED ENACTMENT BECAUSE OF this Rule.
Senator Curtis is aware of this and will want to fight it.
TC:jt
1 Attachment
URGENT - IMMEDIATE ATTENTION PLEASE
Calendar No. 1
92D CONGRESS
1ST SESSION
S.RES.9
IN THE SENATE OF THE UNITED STATES
JANUARY 25, 1971
Mr. CHURCH (for himself, Mr. PEARSON, Mr. ALLOTT, Mr. ANDERSON, Mr. BAYN,
Mr. BENTSEN, Mr. BROOKE, Mr. BEALL, Mr. Вуштск, Mr. CASE. Mr. (Sook,
Mr. CRANSTING Mr. DOMINICK, Mr. EAGLETON, Mr. FONG, Mr. GRIFFIN. Mr.
HARRIS, Mr. HART, Mr. HARTKE, Mr. HATFIELD, Mr. HUGHES, Mr. Ilum-
PHREY, Mr. JACKSON, Mr. JAVITS. Mr. KENNEDY. Mr. McGovers, Mr. Mc-
INTYRE, Mr. MAGNUSON, Mr. MANSFIELD, Mr. MATHIAS, Mr. MONDALE, Mr.
MONTOYA, Mr. Moss, Mr. MUSRIE, Mr. NELSON, Mr. PacKMoop, Mr. PASTORE,
Mr. PELL, Mr. PERCY. Mr. PROXMIRE, Mr. RANDOLPH, Mr. RIBICOFF, Mr.
SAXBE, Mr. SCHWELKER, Mr. -Scorr, Mr. STEVENSON. Mr. SYMINGTON, Mr.
TAFT, Mr. TUNNEY, and Mr: WILLIAMS) submitted the following resolu-
tion; which was ordered to lie over under the rule (by Unanimous Consent)
JANUARY 26, 1971
Ordered to be placed on the calendar
FORD is 07V839 LIBRARY
RULE XXII RESOLUTION
Background Information for Staff
I. WHAT
A large, bipartisan group of Senators will attempt, at
the opening of the 94th Congress later this month, to amend
Rule XXII of the Standing Rules of the Senate. The resolution
to be introduced by these Senators will provide that three-
fifths, rather than the current two-thirds, of those Senators
present and voting may invoke cloture and limit debate on a
pending matter.
II. WHY
It is impossible to accurately describe the effects of
the filibuster in the United States Senate. Bare statistics
reveal that dozens of bills have been blocked or delayed by
filibusters. But these statistics do not tell the whole story.
Dozens of filibusters have taken place that did not culminate
in record cloture votes. Many appropriations bills have been
talked to death because of something they did -- or did not
include. Many bills have been lost in the jam created by
filibusters. Filibusters have sought and achieved the enact-
ment of legislation favored by those leading filibusters.
Moreover, the threat of a filibuster has often blocked, delayed,
or substantially altered legislation. The time lost is impossible
to measure.
The sponsors of the Rule XXII resolution believe that
the two-thirds rule has exacted too dear a toll. It is simply
too difficult to end debate under the current rule. In the
58 years since the original cloture rule was adopted, there have
been 100 cloture votes. Only 20 have been successful. Since
the most recent Senate consideration of this important matter
in 1971, the filibuster has been repeatedly used to block
social, economic, consumer, and reform legislation with the
sponsorship of Senators of all political philosophies and from
all sections of the country.
Despite this fact, the supporters of the resolution are
sensitive to the important minority rights and to the principle
of extended debate that Rule XXII is designed to protect. They
believe that the three-fifths cloture rule which they propose
would sufficiently protect these values while preventing the
frequent use of the filibuster to thwart the will of the Senate.
III. HOW
At the opening of the 94th Congress, a resolution will
be introduced to amend Rule XXII as described above. The
sponsors of the resolution will then follow two parallel
paths.
First, the sponsors will attempt to invoke cloture on
the anticipated filibuster by the opponents of change in Rule
XXII. They will do this by attempting to secure a two-thirds
vote on cloture motions filed under the old Rules.
At the same time, the sponsors will assert the constitutional
right of a majority of the Senate to make changes in the Rules
uninhibited by provisions of the old Rules. Vice Presidents
Nixon (in 1957, 1959, and 1961) and Vice Presid ent Humphrey (in
1969) have confirmed this right. The sponsors will hope to
combine a favorable ruling on this question by Vice President
Rockefeller with a Senate majority vote sustaining this ruling
on appeal.
IV. WHO
The effort to amend will be led by Senator Mondale and
Senator Pearson. They hope to have the cosponsorship of a
majority of the members of the 94th Senate. A list of the
51 cosponsors of a similar resolution in 1971 is attached for
your information.
Cosponsorship by a majority of the Senate membership is
important (1) to withstand initial motions to table and (2)
to show that a majority of the Senate is, in fact, asserting
the constitutional right to change rules at the opening of a
new Congress under Article I, Section 5.
V. WHEN
The resolution will be introduced on the first day of the
94th Congress. It is vitally important that cosponsorship be
determined by January 9th, at the latest. If you wish further
-3-
information or wish to cosponsor, please call Robert Barnett
(X5641) of Senator Mondale's staff or Arthur Hill (X4774) of
Senator Pearson's staff as soon as possible.
Thank you.
THE WHITE HOUSE
WASHINGTON
1/13/75
MR. MARSH:
Mr. Buchen dropped this by.
He'd like to discuss it with you
this evening if he hasn't left - otherwise
tomorrow is fine. He also said it
hadn't gone out yet.
con
THE WHITE HOUSE
WASHINGTON
January 13, 1975
MEMORANDUM FOR THE PRESIDENT
THROUGH:
PHILIP BUCHEN
FROM:
KENNETH LAZARUS
SUBJECT:
The Rule XXII Resolution
I have reviewed William Kendall's memo of January 10 and submit
the following:
It is anticipated that Senator Mondale will introduce a resolution
providing that three-fifths, rather than the current two-thirds, of
those Senators present and voting may invoke cloture and thus limit
debate on a pending matter. Two issues are raised by the resolution.
First, should the use of the filibuster be further diminished? Although
the filibuster is an anti-majoritarian concept, it is firmly rooted in
Anglo-American systems of government and is consistent with the
need for stability in government which is met in part by the Senate.
On a more practical level, it provides a viable alternative to the veto
in Presidential decision-making. Thus, I believe that it would be
unwise to support any effort to reduce its utility. In this regard, it
should be noted that many recent votes on cloture have been extremely
close. Moreover, the current resolution is part of a continuing effort
to completely eliminate the filibuster.
Assuming that you will not support the Mondale resolution, the second
issue is which parliamentary option would best serve your goal? This,
in turn, involves the question of whether the Senate is a continuing
body, the rules of which continue from one Congress to another. If
the answer is affirmative, the rules on cloture can only be changed
by a two-thirds vote. If the answer is negative, the rules can be
changed by a simple majority.
Since 1789, there has been only one notable exception to the general
rule that Senate rules continue from one Congress to another. In
1969, then Vice President Humphrey ruled that the question was of
2
Constitutional dimension and put the question to the Senate as a
whole without provision for further debate. A similar ruling by
Vice President Rockefeller would, of course, pave the way for
adoption of the Mondale resolution since it would require a simple
majority vote to pass the measure.
I would recommend that the Vice President put the question to the
Senate as a whole but with provision for further debate, in effect
requiring a two-thirds vote for passage. This would recognize
that the Rules of the Senate have continuing vitality and would
likely lead to the defeat of the Mondale resolution. At the same
time, however, it would minimize the role of the Vice President
in the eventual outcome.
THE WHITE HOUSE
WASHINGTON
Vice Pres.
January 10, 1975
MEMORANDUM FOR THE PRESIDENT
THROUGH:
MAX L. FRIEDERSDORF
FROM:
WILLIAM T. KENDALL
WK
SUBJECT:
The Rule XXII Resolution
SUMMARY: An attempt will be made at the opening of the 94th Congress
to amend Rule XXII of the Standing Rules of the Senate. The Resolution
will provide that three-fifths, rather than the current two-thirds, of
those Senators present and voting may invoke cloture and limit debate
on a pending matter.
First, this group may attempt to get the necessary two-thirds under
old Rule XXII to stop a filibuster which will surely develop. Second,
they will attempt to combine a favorable Vice Presidential ruling on
the question with a Senate vote favoring that ruling in order to get a
vote on the resolution.
The scenario will probably be as follows for the second option:
Senator Mondale will seek recognition following the opening formalities,
having submitted written notice (under Rule XL) of his intention to amend
a Senate rule. He will then seek to obtain assurances that transaction of
business will not prejudice his right to consider a rules change; that by
operating under the rules he is not acquiescing to those rules - particularly
Rule XXII; and try to obtain assurances that Senate will adjourn, rather
than recess, so that a legislative day will pass. (Rule XIV)
On the second legislative day, Senator Mondale will request the presiding
officer to lay the resolution before the Senate during the morning hour and
at the conclusion of morning hour, the resolution will be placed on the
calendar. Mondale will then ask for its immediate consideration.
The opponents will have these options:
1. Move to table motion to proceed. Majority needed.
2. Seek to defeat motion to take up resolution. Again a majority.
3. Raise 2 point of order against motion to consider.
4. Filibuster the motion to consider and/or the resolution itself.
Senator Mondale can respond in two ways to option 4. He can attempt
to invoke cloture under the old rules (XXII). OR, he can attempt to
combine a favorable Vice Presidential ruling with a Senate vote supporting
that ruling.
The Vice President can rule favorably or unfavorably.
If he rules favorably, Senate will proceed with cloture vote and when a
majority (but less than two-thirds) votes to invoke cloture, the Vice
President will rule debate ended. This ruling will be appealed by the
opponents. Mondale will move to table the appeal. If the tabling is upheld,
cloture is invoked and Mondale gets a vote on his original resolution (to
change Rule XXII). If the Vice President rules unfavorably, the cloture vote
proceeds. When a majority (but less than two-thirds) votes for cloture, Mondale
will appeal the Vice President's contention that debate is not ended. The key
here is that Mondale's appeal is subject to unlimited debate. Mondale needs
a "friendly" tabling motion to end debate on the appeal and needs a favorable
vote on this to end debate. The only hope for Mondale under this option is
for the Vice President, on appeal, to put the question to the Senate without
debate (as Humphrey did in 1969).
The Vice President may decide not to express an opinion (as in the case
of Johnson in 1963, Humphrey in 1967 and Agnew in 1971). He may rule
that it is a constitutional question to be ruled on by the Senate rather than
by him and subject to appeal by the Senate. Mondale will hope that the
Vice President will put the constitutional question to the Senate without
debate - otherwise the question is subject to unlimited debate, and probable
failure.
bcc: Vice President Rockefeller
Donald Rumsfeld
John O. Marsh, Jr.
Ronald H. Nessen
James Cannon
RESOLUTION To AMEND RULE XXII
WRITTEN NOTICE MUST HAVE BEEN
GiVEN UNDER RVLE XL
ONe LEGISLATIVE DAY MUST PASS
RULE XIV
PROPONENTS MOVE TO.
CONSIDER
1.
2.
3.
OPPONENTS MOVE TO
OPPONENT MAY ALSO SEEK
OPPONENTS MAY RAISE
TABLE MOTION TO
CONSIDER - simple
TO DEFEAT MOTION TO
MAJORITY NEEDED
CONSIDER - simple MAJORITY
POINT OF ORDER
4.
of FILIBUSTER DEVEL OPS
CloTURE 13 SOUGHT UNDER
PRESENT RVLE XXII REQUIRING
TWO-THIRDS VOTE
CLOTURE IS SOUGHT BUT while A
MAJORITY IS OBTAINED, TWO-THIRDS is
NOT GAINGD. THE VICE PRESIDENT
NOW HAS THREE OPTIONS
IF TWO- THIRDS OBTAINED- -
VOTE THEN TAKEN ON
RESULATION - SIMPLE MAJORITY
2.
3.
1;
THE Y.P. Ryles IN FAVOR
THE VICE PRESIDENT RULES AGAINST
THE Vice PRESIDENT CAN EXPRESS
OF PROPONENTS -
PROPONENTS- DECLARES DEBATE
NO OPINION: Rules IT A CONSTITUTIONAL
DECLARES DEBATE ENDED
NOT ENDED BECAUSE NO TWO-THIRPS.
QUESTION ONLY SENATE CAN DECIDE.
PROPONENTS APPEAL RULING -
OPPONENTS APPEAL
SECAED
(SUBJECT TO UNLIMITED DEBATE
RULING
a.
G.
V.P. PUTS Question
V.P. PUTS Question
is SENATE
LISTARY
To SENATE AND
a.
b.
WITHOUT DEBATE
PRUPONENTS MOVE
ALLOWS DEBATE
PROPONENTS NeeD
To TABLE APPEAL
PROPONENTS NEED MOVE
"PRIENDLY MOTION To
BY V.P. TOPMOTION TO A
TABLE IN FACE OF DEBATE
VOTE WITHOUT DEBATE
RULE (Resolurin)
ANOTHER PILIBUSTER
IF TABLED - VOTE
IF TABLING FAILS -
IF NO DEBATE - Res
IS AMeNDeD
BEGINS
ON RESOLUTION
DEBATE CONTINUES
comes TO immediate VOTE.
IS TAKEN
Am 1-11-75
Washington Post
Sunday, January 26, 1975
Rowland Evans and Robert Novak
Sunday Jan 26, 1975
A Tough Warning From the Post
THE WHITE HOUSE
WASHINGTON
February 27, 1975
MEMORANDUM FOR:
THE PRESIDENT
FROM:
JACK MARSH
Background:
You are aware of the difficult situation which has arisen in the Senate
over Rule 22. I should emphasize that there are some deep and bitter
divisions in the Conservative ranks with old feuds coming to the surface
involving the Vice President.
The principle charges are that he has tilted to the proponents of changing
Rule 22 in two ways:
(1)
Parliamentary rulings.
(2)
Recognition on the Floor. (This has caused much personal
anger.)
On behalf of the Vice President, he and key advisors point out that he has
followed Senate rules and has tried to be even-handed in recognition
practices.
In your meeting today with Senator Tower, it might be helpful to keep in
mind:
(1)
As Chairman of the Policy Committee, he holds a major leader-
ship post.
(2)
He has retained his objectivity insofar as the Vice President
is concerned on Rule 22.
(3)
He has sought to be a peace-maker rather than a partisan.
(4)
He has defended the Vice President to other Members of the
Senate by stating the situation that has occurred "is not all
Rocky's fault."
-2-
(5)
Although not a member of the Wednesday Group, he has
some close associations there and enjoys their respect. On
the other hand, while he is philosophically attuned on major
issues to the Steering Group, he is not a member of their
Group either.
(6)
There is a desire to cool off the situation and seek a compromise
acceptable to Liberals and Conservatives. This move is sponsored
by Mansfield and Tower.
(7)
Because of his parliamentary skill, his broad background as
well as respect both among Democrats and Republicans,
Liberals and Conservatives, Senator Tower is probably our
best chance of achieving a resolution on this matter.
In discussions with him, I would suggest emphasis on:
(1)
Your role in this matter and the limitations placed upon you as
a member of the Executive Branch.
(2)
The efforts you have made to communicate your views on the
subject to the extent you appropriately could.
(3)
The need to divorce Rule 22 from the other major legislative
considerations before the Senate, i.e., energy bill; tax bill, etc.
(4)
To the extent you can your willingness to throw your support
behind a bi-partisan, Tower-sponsored compromise.
(5)
Urge a resolution of the matter in such a way that we do as
little damage as possible to:
(a)
solid supporters in the Senate from both parties you
need on your programs;
(b) the future effectiveness of the Vice President.
In summary you can expect him to ask you to convey your thoughts on this
Rule 22 matter to the Vice President.