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Senate Filibusters and the Two-Speech Rule [a third working thread about forcing the (real) filibuster]

March 20th, 2010 by selise

This is the third in a series of working threads with powwow, and anyone else who wishes to join in the fun, on the Senate filibuster rules and precedents (for links to prior working threads and other background and reference material, see the working threads section of my Senate Filibuster Reference List).

Some of our latest discussions have centered on the two-speech rule in Senate Rule XIX. The authoritative reference for this Rule is in the Debate section of Riddick’s Senate Procedure, under the heading of “Speeches Allowed in Same Legislative Day” (pp 781-5).

Below is a key portion from Riddick’s and selections of the Congressional Record inclusive of citation 561 (Sept. 25, 1986, 99-2, Record, pp. 26136-54) for discussion. Unfortunately this portion of the Record is not yet online, so we have to make due with a pdf (12MB) from a scan of a microfiche photo copy or the typed text (subject to my typos).

An abbreviated version of this post will be x-posted at FDL for the discussion.

________________

From Riddick’s Senate Procedure: section Debate, pages 782-3 in the subsection on “Speeches Allowed in Same Legislative Day”:

A Senator may make two speeches upon the same question in the same legislative day, and if he yields for a speech by another Senator he will lose the floor upon a point of order being made, and his speech will thereby be terminated.557

Under Rule XIX, a Senator is not entitled to speak more than twice in the same legislative day on the same question and when called to order during his third speech will lose his right to the floor.558

A Senator who has spoken twice on the same question may be recognized to make a motion,559 and by leave of the Senate or the adoption of a motion to that effect, to be determined without debate, a Senator may speak more than twice upon the same question on the same legislative day.560

When a Senator called for the regular order, the Senator who had the floor was directed to take his seat, since it was determined that he had already spoken twice on the question before the Senate on that legislative day, the Chair holding that recognition for any purpose constituted a speech. On appeal this ruling was not sustained as the judgment of the Senate. By this vote of the Senate, it was determined that standing alone, the following procedural motions and requests were examples of actions that did not constitute speeches for purposes of the two speech rule: parliamentary inquiries, appeals from rulings of the Chair, points of order, suggesting the absence of a quorum, withdrawal of appeals, requests for the yeas and nays, requests for a division vote, requests for reading of amendments, and requests for division of amendments. Therefore, the two speech rule requires not a mechanical test, but the application of the rule of reason.561

   561 Sept. 25, 1986, 99-2, Record, pp. 26139-53.

Congressional Record, beginning on page 26136 (typos are mine):

—==—

VOTE

The PRESIDING OFFICER (Mr. STEVENS). A quorum is present.

The question is, Is it the sense of the Senate that debate on the motion to proceed to the consideration of S. 2760, the Product Liability Reform Act, shall be brought to a close? The yeas and nays are automatic under the rule, and the clerk will call the roll.

[...]

The PRESIDING OFFICER. On this vote there are 97 yeas and 1 nay. Three-fifths of the Senators duly chosen and sworn having voted in the affirmative, the motion is agreed to.

—==—

PRODUCT LIABILITY REFORM ACT

Mr. KASTEN. Mr. President, when I spoke to the delegates at the White House Conference on Small Business, many of whom had businesses that were literally on the edge of survival, many of whom had businesses whose very existence depended upon the needed reforms of the product liability system, I promised them that this legislation, this bill, would be on the floor of the Senate.

I also promised them, as did the majority leader and others, that we would find out who supported them and were concerned about their problems and who supported the trial lawyers. I am doing everything I can, and I am going to do everything I can, to move this bipartisan consensus bill, the package which I proposed as an amendment in the nature of a substitute on behalf of Senators on both sides of the aisle–to do everything I can to work with this bipartisan consensus until those who support the small businessmen and women across the country are given an opportunity to vote.

I am not a lawyer, but I understand that one of the things that attorneys do, particularly trial lawyers, is they drag things out in court. They stall in court. They use legal technicalities in court to prevent a solution or to prevent any decision from being made.

These legal technicalities that we are seeing now is a process under which a small number of people who are using legal technicalities and not willing to vote up or down on an issue are dragging out this issue on the floor of the Senate, just as trial attorneys drag out an issue in a courtroom.

We cannot let them get away with that on the floor of the Senate. I strongly urge my colleagues to vote for the Kasten-Inouye-Gorton-Stevens-Kasscbaum-Riegle amendment to Senate bill 2760. the Product Liability Reform Ad. I believe we have a strong, bipartisan consensus.

I do not believe, Mr. President, that we ought now to go through this dragging out process, which would include up to 30 hours, possibly, of debate, now that we have invoked cloture on the motion to proceed. I shall not use my time, and I do not believe that any of us who are fighting for the small business men and women across this country want to use their time, because we do not want to participate in this delay.

[...]

So, Mr. President, in the interest of trying to move alone, at the same time giving people an opportunity to debate–and I know there are some Senators on the floor who desire to debate–I ask unanimous consent that, notwithstanding the provisions of rule XXII, a vote occur on the motion to proceed on S. 2760, the Product Liability Act, at 12:30 today.

The PRESIDING OFFICER. Is there objection?

Mr. HOLLINGS. I object.

The PRESIDING OFFICER. Objection is heard

Mr. KASTEN. I ask unanimous consent that, not withstanding the provisions of rule XXII, a vote occur on the motion to proceed on S. 2760 at 1 o’clock today.

Mr. HOLLINGS. I object.

The PRESIDING OFFICER. Objection is heard.

Mr. KASTEN. Mr. President, let me just say to the Senator from South Carolina, I am trying, if we can, to expedite the process of the Senate. We would be willing to try a vote at 1:30 or 2 o’clock. I ask unanimous consent that, notwithstanding the provisions of rule XXII, a vote occur on the motion to proceed to S. 2760 at 2 p.m.

Mr. HOLLINGS and Mr. HART. I object.

The PRESIDING OFFICER. Two objections are heard.

Mr. KASTEN. Mr. President, I yield the floor.

Mr. HART. Mr. President, a parliamentary inquiry.

The PRESIDING OFFICER. The Senator will state it.

Mr. HART. What is the time situation, Mr. President?

The PRESIDING OFFICER. There are 30 hours of consideration that began at 11:23 a.m.

[...]

Mr. HART. [...] Mr. President, at a time when the Senate ought to be very seriously considering trade legislation, a true deficit reduction measure such as an oil import fee, or overdue revisions of the farm bill–measures to help the American people–we are considering something else: an unjust and unwise measure to injure people who have already been hurt.

I cannot support legislation to make it more difficult for victims of dangerous and defective products to be compensated for their injuries. Most of the provisions of the product liability bill would undercompensate the injured or insulate the guilty. The consumers of this Nation and the firms which conscientiously apply the highest standards in manufacturing both deserve better.

[...]

It is well documented that the tort system has functioned to drive from the market dangerous products–flammable fabrics, unsafe automobiles, birth control pills which cause cancer and stroke, and others. The threat of damages forces otherwise irresponsible manufacturers to pay close attention to the safety consequences of their products. With legislation freeing them of liability concerns, that attention to safety will disappear.

Sound reforms of the Nation’s tort liability system can be accomplished. But solutions to those problems which do exist must involve contributions from all parties–insurers aand consumers, manufacturers and attorneys. That would be a principled approach.

But this legislation is a bailout. It seeks to protect manufacturers from the consequences of their actions at the expense of consumers who have been injured.

I congratulate the distinguished Senator from South Carolina [Mr. Hollings], who has been this Chamber’s conscience on product liability legislation. I commend him for his leadership in opposition to this flawed bill.

Mr. President, a further parliamentary inquire.

The PRESIDING OFFICER. The senator will state it.

Mr. HART. Would a statement unrelated to the pending matter be in order at this point?

The PRESIDING OFFICER. It is not in order at this time.

Mr. HART. Would it be in order if unanimous consent were obtained?

The PRESIDING OFFICER. It would be in order to ask unanimous consent for that purpose.

Mr. HART. Mr. President, I ask unanimous consent that it be in order to present brief remarks on the occasion of the memorial service to the late Governor Harriman.

Mr. KASTEN. I object.

The PRESIDING OFFICER. Objection is heard.

Mr. HART. I am sure the friends of Governor Harriman appreciate that.

Mr. HOLLINGS. Mr. President, I suggest the absence of a quorum.

The PRESIDING OFFICER. Business has not intervened since the last quorum call; therefore—

Mr. HOLLINGS. No business has intervened, Mr. President?

The PRESIDING OFFICER. That is the rule, that during a cloture period, there cannot be another quorum call unless business has intervened in the interim since the last rollcall.

Mr. HOLLINGS. Mr. President, may I inquire of the Chair–we have had some talk. What constitutes business?

The PRESIDING OFFICER. The Chair states that that is a very technical question. There are a series of things that constitute business. Ordering the yeas and nays on a motion would be business.

Mr. HOLLINGS. But not debate?

The PRESIDING OFFICER. Not debate. There must be action by the Senate disposing of pending business before another quorum call is in order.

Mr. HOLLINGS. I appeal the ruling of the Chair and ask for the yeas and nays.

The PRESIDING OFFICER. Is there a sufficient second for that purpose? There is not a sufficient second for that purpose.

Mr. HOLLINGS. Mr. President, I suggest the absence of a quorum.

The PRESIDING OFFICER. A quorum is not in order.

Mr. HOLLINGS. Oh, yes, Mr. President; now business has occurred.

The PRESIDING OFFICER. The Chair is corrected by the Parliamentarian. The Senator having appealed the ruling of the Chair, it is now in order to have a quorum call to get sufficient time to get seconders for the request. The clerk will call the roll.

The legislative clerk proceeded to call the roll.

Mr. KASTEN. Mr. President, I ask unanimous consent that further proceedings under the quorum call be rescinded.

The PRESIDING OFFICER. Is there objection?

Mr. KASTEN. Mr. President, it is our intention to move to the yeas and nays on this question now if the Senator from South Carolina is agreeable.

Mr. HOLLINGS. I object right now. Let me get this understood. You can move it, but I would be recognized talk, I misunderstood the request of the distinguished Senator.

The PRESIDING OFFICER. The Senator from Wisconsin has the floor and has made a request.

Mr. HOLLINGS. Is is unanimous consent?

The PRESIDING OFFICER. Is there sufficient second for the yeas and nays?

Mr. HOLLINGS. Parliamentary inquire. What is the motion?

The PRESIDING OFFICER. Is is the Chair’s understanding the Senator from Wisconsin has asked for the yeas and nays on the appeal.

Mr. HOLLINGS. The appeal was out and then we got the quorum call.

The PRESIDING OFFICER. No. The appeal was not out because the Senator had appealed the ruling of the Chair and asked for the yeas and nays and there was not a sufficient second. And then the Senator asked for a quorum call, which leaves the Senator’s motion remaining before the Senate and that is the appeal of the ruling of the Chair.

Mr. HOLLINGS. I withdraw the appeal. Is that alright?

The PRESIDING OFFICER. The Senator has that right. The appeal is withdrawn.

—==—

QUORUM CALL

Mr. HOLLINGS. The appeal is withdrawn and I suggest the absence of a quorum.

The PRESIDING OFFICER. The clerk will call the roll.

[...]

The PRESIDING OFFICER (Mrs. KASSEBAUM). A quorum is not present.

The clerk will call the names of absent Senators.

The assistant legislative clerk proceeded to call the roll.

Mr. KASTEN addressed the Chair.

The PRESIDING OFFICER. The Senator from Wisconsin.

Mr. KASTEN. Madam, President, I move that the Sergeant at Arms be instructed to request the attendance of absent Senators, and I ask for the yeas and nays.

The PRESIDING OFFICER. Is there a sufficient second? There is a sufficient second.

The yeas and nays were ordered.

[...]

The result was announced–yeas 90, nays 5,…

[...]

So the motion as agreed to.

The PRESIDING OFFICER. With the addition of Senators voting who did not answer the quorum call, a quorum is now present.

—==—

PRODUCT LIABILITY REFORM ACT

Mr. KASTEN. Madam President, I ask for regular order.

The PRESIDING OFFICER. Regular order is the motion to proceed.

Mr. HOLLINGS addressed the Chair.

The PRESIDING OFFICER. The Senator from South Carolina.

Mr. HOLLINGS. The distinguished Senator from Wisconsin Madam President, has referred to trial lawyers.

Mr. KASTEN. Madam President, a parliamentary inquiry.

The PRESIDING OFFICER. Does the Senator yield for a parliamentary inquiry?

Mr. HOLLINGS. No, I do not. I would like to make this thought. I have not spoken today on this particular matter, I would like to be heard because there have been some misleading statements made.

[... continues by reading into the record a letter from the ABA - s]

Mr. KASTEN. Madam President, I ask for regular order. The Senator fro South Carolina has already spoken twice on this issue. Under the rules, he cannot speak again on this issue.

Mr. HOLLINGS. I have not yielded the floor Madam President.

The PRESIDING OFFICER. Regular order has been requested.

Mr. HOLLINGS. I am in regular order, having been recognized. How can he be recognized? He has already made five motions. I have not made one talk. I am trying to complete it.

The PRESIDING OFFICER. The Senator from Wisconsin does have to be recognized. He made a call for regular order. Under regular order, The Senator from South Carolina has already delivered two speeches on the same subject. A third speech would be our of order.

Mr. HOLLINGS. As you were. I respectfully–I disrespectfully, I should say–object to that ruling, Madam President. That is babble from the Parliamentarian. You cannot rule in the U.S. Senate that when I made a request for a quorum, that is a speech. The only other thing I made was an appeal from the ruling of the Chair. If that is a case of being recognized, he has already been recognized, made six talks this morning. I make the point of order that he is out of order, has been recognized because he made two speeches so you could not recognize him. That is utter nonsense. I never heard of such a thing in my life–there is no precedent. The Parliamentarian referred to page 625. I have read it. I say he is wrong. I respect you, Madam President. I know you take that nonsense from him. I am going to appeal it, if you please.

If a motion in the U.S. Senate is a speech, if an absence of a quorum is a speech, if an appeal is a speech, we are in sad shape if we are going to take the majority or minority leader and rule him out of order because that is two speeches. He knows that. He has been recognized for three unanimous consent requests and four others so on a point of order, he was not in order to be recognized. Therefore, he could not call for regular order under that nonsensical ruling.

I still have the floor. I thank distinguished chairman.

The PRESIDING OFFICER. The Senator from South Carolina knows a ruling of the Chair is not debatable. An appeal is not debatable.

Mr. METZENBAUM. Madam President, I suggest the absence of a quorum.

The PRESIDING OFFICER. The clerk will call the roll

The assistant legislative clerk called the roll.

[... Quorum No. 12: 14 Senators answered to their names. -s]

Mr. KASTEN. Madam President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. HOLLINGS. I object.

Mr. METZENBAUM. I object.

The PRESIDING OFFICER. Objection is heard.

Mr. KASTEN. Madam President, I move that the Sergeant at Arms call for the return of the absent Senators.

Mr. HOLLINGS. Madam President, I object. A rollcall is in progress and he has not taken off the quorum.

Mr. METZENBAUM. Madam President, I invoke the two-speech rule. I invoke the two-speech rule.

Mr. HOLLINGS. That is right. He is out of order.

Mr. METZENBAUM. For that and seven other reason why I object.

Mr. KASTEN. Madam President, I ask for the yeas and nays.

Mr. HOLLINGS. We are still in a quorum call.

The PRESIDING OFFICER. The Quorum has been completed. The clerk just announced a quorum is not present.

Mr. METZENBAUM. I invoke the two-speech rule.

Mr. KASTEN. I ask for the yeas and nays.

The PRESIDING OFFICER. Is there a sufficient second?

Mr. HOLLINGS. I raise a point of order that he not be recognized because this is his seventh speech.

The PRESIDING OFFICER. A point of order cannot be the absence of a quorum and there is not a sufficient second. The question is, Shall the Sergeant at Arms call for the return of the absent Senators? All those in favor say “aye.”

All those opposed.

The ayes appear to have it.

Mr. METZENBAUM. The what?

The PRESIDING OFFICER. The ayes appear to have it.

Mr. METZENBAUM. Madam President, there was 1 yea and 1 nay.

Mr. KASTEN. I ask for a division.

The PRESIDING OFFICER. Those in favor stand and be counted.

Mr. METZENBAUM. Madam President, I ask for a rollcall. I ask for the yeas and nays.

The PRESIDING OFFICER. Is there a sufficient second? There is a sufficient second.

The yeas and nays were ordered.

[...]

The result was announced–yeas 87 nays 6…

[...]

So the motion was agreed to.

The PRESIDING OFFICER. With the addition of Senators voting who did not answer the quorum call, a quorum is now present.

Mr. BYRD addressed the Chair.

The PRESIDING OFFICER. The Democratic leader.

Mr. BYRD. Mr. President, I am allowed 1 hour–or 2 or 3 if yielded to me, is that correct?

The PRESIDING OFFICER. That is correct

Mr. BYRD. I understand that some problem has risen with respect to the rule XIX, involving two speeches in the same legislative day on the same subject, the contention being that Senator HOLLINGS, on the suggestion of the absence of a quorum, was being charget with one of his two speeches to which he is entitled under the rule.

I was not on the floor at the time. I have asked for a transcript and it is quite lengthy, as I see here. I would like to have an opportunity to read this transcript and I shall shortly complete my one speech on the same subject during the same legislative day.

But, before I do so, I shall record the pertinent provision of rule XIX:

… and no Senator shall speak more than twice upon any one question in debate on the same legislative day without leave of the Senate, which shall be determined without debate.

Mr. President, if I am correct in the understanding that Mr. Hollings got recognition, suggested the absence of a quorum, and that that action on his constituted a speech. I would ask the Chair if I am correct in that the Chair has rendered such an opinion.

The PRESIDING OFFICER. It is the interpretation of the Parliamentarian that any recognition is considered in this context as a speech and, of course, the reading of the transcript would give full evidence of the exact request of the Senator from South Carolina.

Mr. BYRD. I will read the transcript in a moment to ascertain in facts in that regard.

But we are told by the Chair, upon the advice of the Parliamentarian, that any recognition for any purpose when the Senate is proceeding under the cloture rule, the Senate having voted cloture, that such recognition constitutes a speech; am I correct?

The PRESIDING OFFICER. That is correct.

Mr. BYRD. If I might ask the Chair to inquire of the Parliamentarian: What is the basis for the Parliamentarian’s recommendation or advice on that point?

The PRESIDING OFFICER. The precedent is set by the debate on June 12, 1935. During consideration of an amendment from the House, the President pro tempore, in reply to a parliamentary inquiry by Mr. Huey P. Long, from Louisiana, held that he would lose the floor if he made a motion for a recess. In reply, then, to a parliamentary inquiry of Mr. Pat McCarran, of Nevada, if any other Member than the Senator who occupied the floor could move a recess without the other Senator losing the floor, the President pro tempore said:

If there is any business intervening, then the Senator is construed as starting another speech. If any business intervenes and the Senator allows it to intervene, having the power to prevent the intervention of any business, then if he is recognized it will be regarded as the beginning of a second speech.

And then, in reply to a parliamentary inquiry by Mr. Alben Barkley, of Kentucky, the President pro tempore held that where a Senator yielded to another Senator to make a motion to recess or adjourn or for any other motion, that constituted business, and if such Senator was again recognized, it would be for a second speech.

There is more to that precedent that I call share with the Democratic leader.

Mr. BYRD. I thank the Chair.

Would the Chair, with the advice of the Parliamentarian, indicate where in the footnotes that such precedent is referred to?

The PRESIDING OFFICER. It is on page 626 of Senate Procedure, footnote No. 487.

Mr. BYRD. I thank the Chair.

Mr President, if Senators will pay close attention, the Senate will be called upon to make a decision on this point. It is going to be a serious impairment to any leader, whether majority or minority, if this ruling which has been taken as stated by the Chair, with the advice of the Parliamentarian, is allowed to stand.

Let me just say that I have been studying these rules for 20 years and have been a constant companion on the floor pretty much of that time and have probably been instrumental in establishing more precedents than any other Senator before my time or during my time.

Let me hastily say that I can be wrong, and I am the first to recognize that I have been wrong and have admitted that I have been wrong.

But let us proceed now in connection with this matter.

All Senators have the book titled Senate Procedure. It may be in their desks or may be in their offices.

Let me read to Senators therefrom.

The Chair has cited a so-called precedent on page 626 of the book on Senate Procedure. We find a footnote, 487; “See June 12, 1935, the 74th Congress, 1st Session, RECORD pages 4495, 4496.

If each Senator will also look at the preface in this book, which is on page small Roman numerals xi, I will read this paragraph.

It will be observed that the footnotes divide themselves into two classes: those without, and those with the word “See” and “See also.” Those without

Meaning those without the word “See” or See also,”

are rulings by the Presiding Officer or decisions by the Senate.

Those are precedents. Whether they are “rulings” by the Presiding Officer or “decisions” by the Senate, that is what we mean when we refer to a “precedent.” The Senate guards zealously its rules and precedents because, like the common law of England which is based on precedents from time immemorial rules and precedents are what we depend on here in this body, in addition to unwritten rules of courtesy, comity, and mutual respect.

Reading further:

Those with “See” are responses by the Chair are responses by the to parliamentary inquiries in cases where the opinions expressed are in keeping with the practices of the Senate, even though in such cases an appeal from an opinion expressed by the Presiding Officer in reply to a parliamentary inquiry is not in order.

Where the Chair, therefore, expresses an opinion in response to a parliamentary inquiry, that opinion is not a precedent and, therefore, not subject to appeal. The Chair expressed opinions in only the footnote cited.

The footnote cited says “See”, and “See” is in italics which means that it was a response by the Chair to a parliamentary inquiry.

A response by the Chair to a parliamentary inquiry is not a precedent. I have already indicated that a precedent is a “decision”, by the Senate or a “ruling” by the Chair. The Chair rules on a question of order.

If the Chair’s ruling is not contested by the Senate, the ruling stands as a precedent of the Senate. If the ruling is appealed, the Senate decides. Whatever the Senate decides, whether it is in support of the Chair or opposes the Chair, that is a precedent of the Senate. A decision by the Senate is the stronger of the two precedents.

A ruling by the Chair, uncontested by the Senate, is a precedent, but not as strong as a decision by the Senate.

But in this footnote, we are being referred to responses by the Chair in answer to a parliamentary inquiry.

The Presiding Officer has already read the responses. The Chair was not asked to rule. A Senator simply arose and asked a parliamentary inquiry. The Chair responded that it was the Chair’s opinion thus and so. It may be the Chair’s opinion based on a past precedent set by the Senate, but if there is such a precedent established by a Senate decision or a ruling by the Chair that would back up the Chair’s opinion, it ought to be in the footnote also and we ought to see what it is, but none is indicated.

So the Chair’s ruling today is not based on precedent. It is against all commonsense it seems to me; it is against logic, to maintain that simply because a Senator rises and suggests the absence of a quorum, that that in itself constitutes a speech.

If this is going to be the rule here, then the distinguished majority leader, if he wishes to put in a quorum call, that is going to constitute a speech.

Well, he will be allowed to do that twice. Then, of course, when he has done that twice, the leader is going to be confronted with having spoken twice already on the same legislative day, and without the consent of the Senate, he cannot proceed. We all know that is impractical, it is implausible, it is illogical, it does not make sense. I think it would be a very serious thing if the Senate were to allow this matter to stand that, on the basis of the Senator from South Carolina’s having arisen, having addressed the Chair, having gotten recognition, having suggested the absence of a quorum, that constitutes a speech within the two-speech rule.

I hope the Senate will not allow that ruling, if the ruling has indeed been made, to stand unchallenged. I hope the Senate will not allow that to become a precedent.

Any Senator has the right to–does a Senator have to be recognized to as for the yeas and nays, I ask the Chair?

The PRESIDING OFFICER. It is so that a Senator would have to be recognized to ask for the yeas and nays.

Mr. BYRD. I thank the Chair.

The Constitution gives any Senator the right to ask for the yeas and nays on any question and he is entitled to have the yeas and nays if one-fifth of those Senators present signify that they support that can for the yeas and nays. But if he does that, under today’s ruling, that is one speech. If he asks for the yeas and nays twice, he has made his two speeches.

Is that logical? Does that make sense, that a Senator who asks for the yeas and nays on a given matter, to which he is entitled if supported by one-fifth of Senators present, under the Constitution of the United States-which is on a much higher plane than the rules of the Senate or the precedents of the Senate-then, is he going to render himself further speechless on a matter that may be vitally important to his State? No State shall be deprived of equal representation in the Senate without its own consent. Is he, by virtue of the fact that he asked for the yeas and nays twice unable to speak on a matter vital to his State, thus denying representation for his State?

The majority leader may say. “I move that the Sergeant at Arms be instructed to request the attendance of absent Senators.” The majority leader may then say, “I ask for the yeas and nays.” He has made two speeches? Is that what we are being told?

Mr. HART. Will the Senator yield for a question?

Mr. BYRD. Yes. I am happy to yield.

Mr. HART. Is it the contention of the Senator from West Virginia that the precedent cited by the Chair is incorrect or that the interpretation placed upon that precedent by the Chair is incorrect?

Mr. BYRD. I am saying that, No.1, it is not a precedent.

The Chair is referring not to precedents. The Chair is referring, rather, to an opinion expressed by a previous Chair in response to a parliamentary inquiry. That is not a precedent. I am saying, furthermore, that the interpretation based upon the nonprecedent is incorrect, and illogical.

I shall read this paragraph on page 626 which the Chair has cited:

If a Senator in possession of the floor yields to another Senator to make a motion to recess or makes such a motion himself he would lose the floor, and would have no prior right to recognition, and if recognized again, it would be his second speech.

If Senator HOLLINGS had had the floor and had spoken, let us say, for 2 minutes. 3 minutes, 10 minutes or 15 minutes–whatever it was–and he yields to another Senator to make a motion to recess, or makes the motion himself, he would indeed lose the floor, and he would have indeed made a speech, but the motion to recess, standing alone, would not, in and only of itself, constitute a speech. It he has the floor and speaks for an hour and a half and then puts in a quorum, of course, he has made a speech.

Or he speaks for 20 minutes and yields to me on another matter and I put in a quorum call, of course he has made a speech. No one would argue that he has not done so.

But for the Senator simply to stand and say, “Mr. President, I ask for the yeas and nays on this question,” who in the name of common sense would maintain that that request for the yeas and nays–which he has a right to make under the Constitution of the United States, the organic law which created this Senate–constitutes a speech?

I hope the Senators will think about this carefully. because–

Mr. METZENBAUM. Will the minority leader yield for a question?

Mr. BYRD. Mr. President, I do not have to ask unanimous consent to yield to the distinguished Senator if he is going to ask a question. I have not taken my hour.

The PRESIDING OFFICER. There will be no objection.

Mr. METZENBAUM. If we follow this procedure, that any kind of recognition is tantamount to a speech. is it not the fact that the majority leader, as well as the minority leader, in their responsibilites are called upon day in and day out to seek recognition not only 2 times but 22 times in connection with a matter? And that any Senator seeing fit to do so could totally tie the Senate up in knots and tie up the leadership, preclude them from accepting their responsibilities? Does not the minority leader believe that would be the case?

Mr. BYRD. Mr. President there is no question in my mind that this ruling would be a ball and chain around both hands and both feet of any leader, in addition to having a gag thrust in his throat. No leader could lead the Senate if this ruling is going to stand. If what is being maintained by the Chair, and I say this with all respect to the Chair–and the distinguished Senator in the Chair at the moment is there by reason of having answered the call to preside, I answer by simply saying, yes, that would be a serious impairment to the leaders and to managers of bills, and to any Senator who wishes to offer an amendment and is required repeatedly to explain or defend his amendment.

Mr. METZENBAUM. Another question I would then pose to the minority leader is, so far as the Chair’s ruling as based upon the Parliamentarian’s advice would put the Senate in a very tight bind and one that I believe would totally frustrate the ability to run this body in an orderly fashion, does the minority leader have an opinion as to how the Senate might act in order to make it clear that recognition for the yeas and nays, or for a quorum call, or for any one of number of other issues, might be resolved and make it clear that that is not the position of this body? I am wondering if the minority leader, who is unquestionably the most renowned authority on the Senate rules we have in this body, could suggest how we might clarify the situation?

Mr. BYRD. Yes, by appealing the Chair’s ruling. In a few minutes I am going to suggest the absence of a quorum so that I can read the transcript. I want to see what the facts are. I was not on the floor when the situation developed. I want to see if the distinguished Senator from South Carolina was indeed making a speech. He has indicated he was not. I will take his word for it. But the transcript I want to read. Was he indeed making a speech, after which he put in a quorum. That is one thing. But he says he was not malting a speech. He got recognition and suggested the absence of a quorum and then at a later time he was speaking and someone in the middle of the speech called for the regular order. It is appropriate for another Senator to ask for the regular order even in the middle of a Senators’ speech, If then he is charged with having made a second speech and therefore he cannot proceed because the Chair rules that he has already made two speeches, why then, I want to see by the transcript just what it was all about.

But it will have to be challenged if it is the ruling by the Chair that the Senators’ call for a quorum, in and of itself and standing alone constituted a speech. That cannot be allowed to remain unchallenged.

Mr. METZENBAUM. I thank the minority leader. As a matter of fact, when the Senator from South Carolina was involved in this issue, the Senator from Ohio suggested the absence of a quorum and then learned, to my total surprise after inquiry of the Parliamentarian, that that constituted one speech. And I am frank to say that I have been on this floor for a number of years and involved in a number of parliamentary debates and issues and, to the best of my recollection. I have never heard of a ruling that suggesting the absence of a quorum, or asking for the yeas and nays, or anyone of a number of other items that call for recognition but do not involve a speech are considered to be a speech within the interpretation of the two-speech rule.

Would the minority leader care to clarify my thinking on that subject and am I wrong that that has been the general interpretation in the past? At least the issue haa never been raised to my recollection.

Mr. BYRD. I regret to say I was distracted by my own thoughts.

Mr. METZENBAUM. I understand.

Mr. BYRD. I beg the Senator’s pardon. Here is what I was thinking. Here is what ran through my mind. A Senator asks for the yeas and nays. That is one speech. The Chair says, “Is there a sufficient second There is not a sufficient second.” Then the same Senator says. “I suggest the absence of a quorum.” He wants to get a quorum here so he can get his yeas and nays. Well. he has made two speeches. He made two speeches. In suggesting the absence of a quorum, he has made a speech.

Mr. METZENBAUM. Right.

Mr. BYRD. The Chair says. “Is there a sufficient second?” He looks around. Only one hand goes up. The Chair says, “There is not a sufficient second.” The same Senator, determined to get a rollcall on the question–and it is a vital question, perhaps vital to the Nation, vital to his State or whatever–says, “I suggest the absence of a quorum.” He is out of the ball game for the rest of–

Mr. METZENBAUM. He cannot ask for it the next time.

Mr. BYRD. He is out of the ball game for the rest of the legislative day on that question. He cannot then get up and express the views of his constituents, not once. He has already run out his time by asking for the yeas and nays, and that demand not having been supported by an adequate show of seconds, he suggests the absence of a quorum. he has had it for tre day–go home.

Mr. DODD. Will the Senator yield?

Mr.DECONCINI. Will the Senator yield for a further question?

Mr. METZENBAUM. As a matter of fact, is it not the case that he could not ask for the yeas and nays the second time because he has already used up his right to recognition twice?

Mr. BYRD. Of course. Of course he has.

Mr. DODD. If the leader will yield for a question, presumably he would have made a speech on the matter that was before the Senate.

If he had then asked for the yeas and nays and only one Senator raised his hand, then proceeded to make a point of order that a quorum was present, another Senator could call for regular order and he could not even make the point of order because the point of order would be a second speech, a third speech.

Let me just try to explain that again. Assuming there was a matter before the Senate. The Senator gives a speech on it. The Senator from West Virginia has a very important matter affecting his State. He has given an hour-long speech on the matter. No one else wishes to speak on the matter and so the Senator from West Virginia says he would like to have the yeas
and nays on the amendment. He asks for the yeas and nays. Only one Senator raises his hand. The Chair says there is an insufficient second. At that point the Senator from West Virginia says, “Well, I wouid make a point of order that a quorum is not present.”

Mr. BYRD. Yes.

Mr. DODD. Having a speech, having asked for the yeas and nays, he would be out of order even making the point of order that a quorum was not present. Is that correct?

Mr. BYRD. No. No,. I would not agree with that. He makes the speech and then asks for the yeas and nays. That is not two speeches. He has the floor. He has recognition already. He speaks and, in closing says, “I ask for the yeas and nays.” That is only one speech. The Chair says that recognition–recognition–for any purpose–the Senator already has recognition. I am standing here speaking. In closing my speech, and before yielding the floor, if I would say, “Mr. President, I ask for the yeas and nays,” I have not made two speeches. That is not what the Chair maintained, because I shall have had recognition already for a true speech. I do not have to seek recognition again at the close thereof to ask for the yeas and nays, because I already have the floor.

Mr. DODD. If another Senator had spoken, if the Senator from West Virginia had given his speech on the matter and then yielded the floor, another Senator had risen and addressed the same matter, that concluded the debate; then the Senator from West Virginia came back at that point and asked for the yeas and nays, and then made the point of order that a quorum was not present. Would that be the third speech?

Mr. BYRD. I am sorry. I am still wrapped up in my own thoughts, the question occurs to me–I beg the Senator’s pardon. Would he ask that again.

Mr. DODD. The Senator from West Virginia had an amendment on the floor and he gave a speech about his amendment. The Senator from North Carolina then decided he wanted to address the same amendment and gave a speech on the subject. The Senator had yielded the floor at the conclusion of his speech. Once the Senator from South Carolina had finished his speech, no one else wished to address the, matter. At that point. the Senator from West Virginia, since it was his amendment hypothetically, asked for the yeas and nays on his amendment. Now he has given a speech on the amendment.

Mr. BYRD. Yes.

Mr. DODD. He has now had an intervening speaker. He has now arisen and said, “I would like the yeas and nays on my amendment.”

Mr. BYRD. Yes.

Mr. DODD. The Chair says there is an insufficient second, at which point the Senator then comets back and says, “I would make a point of order that a quorum is not present.” What I understand the Senator, the minority leader is saying is that tthat request, or making a point of order that a quorum was not present would be a third speech? That would be the scenario that I described.

Mr. BYRD. I do not know if it would ever get to that point, because he has already run his speech out. He made one speech on his amendment and then another Senator spoke, and the Senator asked for the yeas and nays. That is recognition. That is his second speech.

Let me ask the Chair: The Chair has said, I believe, that to get the yeas and nays; the Senator has to be recognized. Am I correct?

The PRESIDING OFFICER. That is correct.

Mr. BYRD. Once he asks for the yeas and nays, if the Chair says that there is not a sufficient second, has the Senator lost the floor when he asked for the yeas and nays and there is not a sufficient second and the Chair says, “There is not a sufficient second”? Has the Senator lost the floor, and does he have to be recognized again to suggest the absence of a quorum?

The PRESIDING OFFICER. The Senator has lost the floor under those circumstances. That is correct.

Mr. BYRD. So the point of order that a quorum is not present would constitute three speeches. He is knocked out when he made the second. That is what I was trying to say.

Mr. DODD. I thank the Senator.

Mr. BYRD. I think the question is an incisive one and a good one, because what the Senator is saying is that he has been recognized twice and cannot even suggest the absence of a quorum.

Mr. DODD. That was my question.

Mr. BYRD. That is a good point. I am sorry I was a little slow.

Mr. EXON. Mr. President, will the Senator yield for a question?

Mr. BYRD. I yield.

Mr. EXON. I appreciate the Democratic leader yielding for a question. I hesitate, as a nonlawyer, even to speak on the floor of the U.S. Senate on this subject because I do not want to bring any commonsense into this argument or discussion. [Laughter.]

Mr. HOLLINGS. Don’t worry.

Mr. EXON. But, as a nonlawyer, it sounds to me as though if the ruling of the Parliamentarian and backed by the Chair, becomes the precedent that we are going to follow in the future, what we are basically saying is that we nonlawyers are not going to be doing much speaking in postcloture situations in the future in the U.S. Senate.

In asking my question of the minority leader, it appears to this nonlawyer that we are wasting a great deal of time on a nonsensical question that, if the Parliamentarian is right–and I do not know whether he is right or wrong–must be changed immediately.

Therefore I think that what transcends our discussion here–and I happen to be on the side of the Senator from Wisconsin on the underlying debate that is taking place here, and not on the side of my great friend and colleague, the Senator from South Carolina–but as long as I have one speech or two speeches or have to stand here as long as I can within my hour, I am going to do everything I can to defend the right of my friend from South Carolina to at least proceed under the rules as is normally presented.

My question is this: The minority leader has indicated that he was about to put in a quorum call so that he would have a chance to read the transcript, to determine whether or not, under the reasonable interpretation of the rule, the Senator from South Carolina had offered two speeches. It seems to me that what we have brought out in the very interesting discussion, which I have listened to with great interest, is that whether or not the Senator in this case made two speeches, the question before us–and it is a very vital one–the question more important is whether the ruling of the Parliamentarian, through the Chair, in this particular case is going to be the ruling from here on out.

I cannot imagine any Senator, regardless of how he feels about this issue, backing up the ruling of the Parliamentarian, through the Chair, in this instance.

I simply ask the question: Aside from the immediate consideration of whether the Senator from South Carolina has given one, two, or no speeches, how does the minority leader suggest, with his skill and expertise in this area, that we extricate ourselves from the position we are presently in? What suggestion would he have in that area? I think he agrees with me that, aside from the rights of the Senator from South Carolma, the overriding issue is going to be the rights of all of us in postcloture situations in the future. What do we have to do? Do we overrule the Chair; and if we do, would that set the precedent that would keep this from happening in the future?

Mr. BYRD. Mr. President, I shall answer the question. It is an incisive and good question and appropriate.

In the first place, if the facts are as they have been described to me, then the Senator from South Carolina has been wrongfully–wrongfully in the context of Senate rules and precedents–deprived of his right to speak. But, more important, and I am sure the Senator from South Carolina will agree with me, what we have here is a matter before the Senate that involves whether or not the Senator from South Carolina, will be deprived of his right to speak tomorrow, or a year from now.

It involves the right of every Senator on this floor–the right of the Senator from Nebraska–to speak twice, to make two real speeches in the same legislative day, on the same question, once another Senator has challenged his right under the circumstances as found here today. That is what is at stake here.

As a matter of fact, some people may not realize it, but this question here is more important in the long term, in the overall future of this unique body’s rules which give Senators the right to stand and speak as long as their feet will hold them–in the long run it is a more far-reaching question than the legislative matter that is being debated.

Mr. EXON. How do we get out of it?

Mr. BYRD. How do we get out of it? By appealing the ruling. First of all, I said I was not in here when this all happened.

I will have to ask whether or not the Chair has actually ruled. If the Chair has ruled, then I will appeal that ruling. If a Senator wants to move to table the appeal, he can move to table it, and I will ask for the yeas and nays, and the Senate will decide.

If the Senate refuses to table my appeal or if the Senate sustains my appeal, then the Chair’s ruling is overturned, and we then have a real precedent, not just an opinion expressed by different occupants of the chair, as referred to in the footnote involving the June 12, 1935 date.

Mr. HARKIN. Mr, President. will the minority leader yield on that?

Mr. BYRD. Yes.

Mr. HARKIN. I am intrigued by what the leader has said earlier in reading the preface to the Senate rules, trying to understand the difference between the word “without” and the words “see” and “see also.” Then I referred back to page 785 of the Senate rules where it discusses a parliamentary inquiry. I could direct the leader’s attention to page 785.

Mr. BYRD. I am looking on that page. Yes.

Mr. HARKIN. And where it speaks of the parliamentary inquiry on that third paragraph from the top it said:

Unlike rulings of the Chair, the responses to parliamentary inquires do not create precedents for the Senate; if there are a series of responses to parliamentary inquiries over a long period of time on which nothing to the contrary has occurred, such responses are used as guidelines for decisions.

I emphasize that–”guidelines for decisions” but not rulings.

The reason that a response to a parliamentary inquiry is not considered as a precedent is due to the fact that a Senator may not take an appeal from the Chair on the response to a parliamentary inquiry.

Mr. BYRD. That is right.

Mr. HARKIN. So we had the strange situation that according to the footnotes the Parliamentarian has suggested to the Chair a ruling not based upon precedents but based upon a parliamentary inquiry. It could not have been a precedent because no appeal could have been taken from the Chair on that.

So we have the strange situation here of the Chair being advised by the Parliamentarian to make a ruling on something which could not have ipso facto been a precedent of the Senate.

So now how can we appeal from a ruling of the Chair which on the face of it had to be based upon an erroneous interpretation of what was and what was not a precedent of the Senate? It seems it is almost like we are in a bit of a grid lock here on this if in fact that was the ruling of the Chair because the ruling could not have been based upon a precedent because it could not have been a precedent.

Mr. BYRD. Let me say at this point, the Chair is called upon to make a ruling, whether or not there has been a precedent and I am trying to answer the Senator’s inquiry.

If a question of order is raised, the Chair has to make a ruling or submit the matter to the Senate for its decision. If there is no precedent–as the Senator states–the Chair still is required to make a ruling or submit the question to the Senate.

Let us say the Chair rules. He may make his ruling on the basis of opinions that have been expressed by the occupants of the chair in previous years in response to parliamentary inquiries. I am not saying the Chair has no right to make a ruling thereon. There may be no precedent. There may be no clear rule. Yet, he is required either to rule or to submit the question to the Senate for its decision.

In making his ruling, if there is no previous precedent, he may depend upon previous responses to parliamentary inquiries, but they are not precedents.

The Chair, indeed. in setting a precedent launching out on his own when he does that, and in that instance it is my contention that the ruling not only has no basis in precedent but that it also is a bad ruling and that it will wreck havoc upon the deliberations of the Senate in the future and certainly upon the rtahts of Senators to speak if it is allowed to stand.

Mr. HARKIN. Mr. President. If the minority leader will yield further on that, I thank him for that response. That is the response I thought would be elicited from my inquiry. I know this Senator would have to think long and hard about overturning an opinion of the Chair that was based upon precedent because we have to rely on precedents if we are going to have orderly running of the Senate. My point was that ruling is not baaed upon precedents.

Mr. BYRD. No. it Is not.

Mr. HARKIN. Not whatsoever.

Mr. BYRD. None whatsoever if nothing more can be shown than the two or more responses by the Chair that were made to parliamentary inquiries back in 1935, cited in the footnote.

The Senator can during any time during the day whether under cloture or not, stand and ask the Chair, “Mr. President, a parliamentary inquiry.” The Chair will say “The Senator will state his parliamentary inquiry.” And the Senator will ask the Chair question. The Chair will render an opinion in response. That is not a precedent. That is merely an opinion of the Chair.

Now. I came into the Chamber,there was a quorum call under way, and Senator HOLLINGS told me what had happened.

Someone had called for the regular order. The Chair interpreting. I will say the rule–there is no rule–but the Chair in response to the call for the regular order took Mr. HOLLINGS off his feet and said, “The Senator has already made his two speeches.” I would like to know what the Chair said.

The PRESIDING OFFICER. The Chair did rule under the regular order the Senator from South Carolina has already delivered two speeches on the same subject and a third speech would be out of order.

Mr. BYRD. Mr. President, before I appeal the ruling of the Chair, I yield to the distinguished Senator from South Carolina for a question.

Mr. HOLLINGS. Will the distinguished Senator from West Virginia, since I am not allowed to talk. Ask unanimous consent to include the authority that the Parliamentarian relies upon because, as the book says, it says “See” and when you see it that means read it and understand it and if you read it and understand it a fifth grader will tell you this is no authority, no precedent, no basis for the point we are talking about. absolutely none. He has no precedent; he has no authority.

So I would ask the distinguished Senator from West Virginia as a personal favor to me please include by, unanimous consent his so-called authority in the Record so anyone can read the full Record and look at his authority and understand the nonsensical nature of this particular rule.

Mr. BYRD. Mr. President, I will do that but at the moment does the Senator from Wisconsin wish me to yield to him?

Mr. KASTEN. No, I do not wish that.

Mr. BYRD. Yes.

Mr. President. I shall appeal the ruling of the Chair just in a moment but before doing so I shall ask unanimous consent, first of all, so that Senators in a future day may have the whole matter before them, in a future day.

I ask unanimous consent that beginning on page 624 of the book on Senate Procedure by Floyd M. Reddick, the Parliamentarian Emeritus, copyright 1981, beginning on page 624 paragraph titled “Speeches Allowed in Same Legislative Day” page 625 through page 626 and down to the close of the paragraph on 627 be printed in the RECORD.

There being no objection, the material was ordered to be printed in the RECORD, as follows:

SPEECHES ALLOWED IN SAME LEGISLATIVE DAY

“No Senator shall speak more than twice upon any one question in debate on the same legislative day without leave of the Senate, which shall be determined without debate.”470 and “day” as used in Rule XIX means a legislative day,471 but the rule is not self enforcing.471a

A Senator has a right to speak twice only in the same legislatlve day on the same questlon,472 for example, on a conference report,473 on a bill or on any amendment thereto.474

If a Senator has spoken twice on an amendment in the same day, he is entitled to make two additional speeches on an amendment proposed to that amendment,475 or any different question brought…

[...]

[The 1981 version of this section of Riddick's is included in the Record, but for the sake of space, and my typing, skipped here. To read the 1981 version, see the pdf. To read the current version, see pages 781-5 of Riddicks, or my Senate Filibuster Reference List page. -s]

Mr. BYRD. Mr. President. I ask unanimous consent that paragraph 3 on page 626 be printed in the RECORD together with the footnote citation.

There being no objection, the paragraph was ordered to be printed in the RECORD, as follows:

If a Senator in possession of the floor yields to another Senator to make a motion to recess or makes such a motion himself he would lose the floor, and would have no prior rlght to recognition, and if recognized again, it would be his second speech.

Mr. BYRD. I ask unanimous consent to have printed in the RECORD the actual opinions expressed by the Chair referred to in that footnote which says “See June 12, 1935, RECORD page 9127.”

There being no objection, the material was ordered to be printed in the RECORD, as follows:

A Senator, in the course of an address, would loss the floor if be made a motion to recess, or yielded to another Senator to make such motion.

If a Senator is again recognized after yielding for such a motion, it would be a second speech.

A Senator yielding for such a purpose would have no prior right of recognition.

On June 12, 1935 (in 74th Congress, 1st session, Record p. 9127), during the consideration of an amendment of the House of Representatives to S.J. Res 114, extending certain provisions of the National Recovery Act, the President pro tempore (Mr. Kay Pittman, of Nevada), in reply to a parliamentary inquiry by Mr. Huey P. Long, of Louisiana, held that he would lose the floor if he made a motion for a recess. In reply to a parliamentary inquiry by Mr. Pat McCarran, of Nevada, if any other Member than the Senator who occupied the floor could move a recess with out the other Senator losing the floor, the President pro tempore said:

If there is any business intervening, then the Senator is construed as starting another speech. If any business intervenes and the Senator allows it to intervene, having the power to prevent the intervention of any business, then if he is recognized it will be regarded as the beginning of a second speech.

In reply, to a parliamentary inquiry by Mr. Alben W. Barkley, of Kentucky, the President pro tempore held that where a Senator yielded to another Senator to make a motion to recess or adjourn or for any other motion, that constituted business and if such Senator was again recognized, it would be for second speech.

The President pro tempore further held that a Senator losing the floor under such circumstances had no prior right of recognition upon the disposition of the motion, but that if he rose and addressed the Chair first, then it was the duty of the Chair to recognize him.

Mr. BYRD. Mr. President, I will not make my appeal at the moment because two Senators wish first to speak. As I understand it, the distinguished majority leader wishes to speak and the distinguished Senator from Wisconsin wishes to speak.

I will not at this moment make my appeal. I do not waive my right to make such an appeal and will make such an appeal.

I ask unanimous consent that I be recognized for that purpose if I so seek recognition following the speeches by Mr. Dole and by Mr. Kasten.

The PRESIDING OFFICER. Without objection.

Mr. KASTEN. Mr. President, I suggest the absence of a quorum.

The PRESIDING OFFICER. The clerk will call the roll.

The bill clerk proceeded to call the roll.

The PRESIDING OFFICER (Mr. Chafee). The majority leader.

Mr. DOLE. Mr. President I listened with great interest to most of wbat the distinguished minority leader had to say earlier about the two-speech rule. As I understand, he is now framing an arpeal to the ruling of the Chair. The Chair ruled that Senator HOLLINGS had already spoken twice on the same issue during the same legislative day and therefore cannot speak again on the Product Liability Act during this same day.

I have visited at some length with the Parliamentartian, Mr. Dove.

I must say in reading the transcript I could not find anything but one speech. But I also have gone over the transcript with the Parliamentarian.

As I understand, it is the Chair’s interpretation that there were in fact three speeches, the first of which is on page 55 ot the transcript that I have. I understand some transcripts have different pages because the reporters rotate and thereby a different number.

The first speech would be by the distinguished Senator from South Carolina [Mr. HOLLINGS] saying:

Mr. President. I suggest the absence of a quorum.

The PRESIDING OFFICER. Business has not intervened since the last quorum call. Therefore–

Mr. HOLLINGS. No business intervened Mr. President?

That is interpreted as speech No. 1.

The second speech of the distinguished Senator from South Carolina [Mr. HOLLINGS]:

Mr. President. May I inquire of the Chair, we have had some talk. What constitutes business?

Then a response from the Presiding Officer. Then Mr. HOLLINGS.

But not debate?

The PRESIDING OFFICER. Not debate. There must be action by the Senate disposing of pending business before another quorum call is in order.

Mr. HOLLINGS. I appeal the ruling of the Chair and I ask for the yeas and nays.

And then there is the question:

Is there a sufficient second?

Mr. HOLLINGS. Mr. President. I suggest the absence of a quorum.

The PRESIDING OFFICER. A quorum is not in order .

Mr. HOLLINGS. Oh yes Mr. President; now business has occurred.

That constitutes the second speech, as I understand the Chair has indicated.

Then the third speech. which I thought was the first speech, started on page 68 of the transcript that I have. It is probably different in the others.

In any event. I guess the question I would have is, what constitutes a speech and how, maybe perhaps, we would be better able to discuss this after the distinguished minority leader has framed the question in his appeal.

I do share the view unless it is clarified, particularly the leaders would have a difficult time in trying to operate the Senate if we were to conclude, after suggesting the absence of a quorum, or being recognized on two occasions, that is all we could do or nearly all we could do for the remainder of the legislative day.

Mr. President. I would hope the distinguished minority leader might be prepared to frame the question. I guess the only question I would not have at this time but, after the question is framed would be: What would be the result if the appeal of the ruling of the Chair is overruled, what would be the precise impact overruling of the Chair would have? That will depend, in part, on how tightly or how loosely the Question is framed.

Mr. KASTEN. Will the majority leader yield?

Mr. DOLE. I yield the floor.

Mr. KASTEN addressed the Chair.

The PRESIDING OFFICER. The Senator from Wisconsin.

Mr. KASTEN. Mr. President, it is important that we maintain the two speech rule. I believe, however, that the current interpretation is too narrow and the procedural motions such as asking for the yeas and nays, calling for a quorum call, moving to instruct the Sergeant at Arms, asking for a division, making a unanimous consent request for a committee to meet, as I did, and I am told that that counted as a speech, these kinds of procedural provisions ought not to be interpreted as speeches under the two speech rule.

So because I believe these procedural motions ought not to be considered as speech, I will vote with the leadership to overturn the ruling of the Chair. However; it is crucial that we maintain the two speech rule and that Senators be limited to two speeches on the same subject on the same day. Our challenge, I think, as the majority leader said, is to define a speech. I am hopeful that we will define a speech in a way that will not be so narrow as to permit Senators, particularly the leadership but all Senators, to be able to have their rights to make procedural motions and not have those procedural motions be counted against them with the two-speech rule.

Mr. BYRD addressed the Chair.

The PRESIDING OFFICER. The minority leader.

Mr. BYRD. Does the Senator from South Carolina wish to be recognized?

Mr. HOLLINGS. Will they let me talk? Yes.

Mr. President. I ask unanimous consent that I be recognized for a minute or two.

The PRESIDING OFFICER. Without objection, it is so ordered. The Senator from South Carolina is recognized.

Mr. HOLLINGS. Mr. President. I only refer to page 51 of the transcript when the Presiding Officer asked did I yield, and my answer was, according to the record:

No. I do not. I would like to make this thought. I have not spoken today on this particular matter. I would like to be heard because of certain misleading statements.

I realized I had not made a talk. In fact, I was waiting for other Senators to talk. So it boiled down into the fundamental. The fundamental is, shall motions, mere recognition and motions, whether it is a call to order, whether it is really technically a motion to require a quorum, a motion to make a parliamentary inquiry, whether any recognition for a motion in a parliamentary body is considered a speech.

Obviously, it is not. There is no precedent whatsoever to sustain.

We have asked the distinguished minority leader. The distinguished minority leader has included those things referred to by the Parliamentarian as his authority.

I would request respectfully of my colleagues to look at those so-called precedents or authorities and you will immediately see that they are not precedents; they are not authority. They have to do with rulings where speeches are being made and interruptions are suffered or the speech maker turns to make a motion for a recess, losing the floor, and then constituting a second speech.

It all relates to making a speech but not to actually being recognized and making a motion.

We could not constitute a parliamentary body if mere recognition constituted a second speech. The distinguished leaders, not just the managers of the bill but every day the leaders on both sides of the aisle, have the duty of trying to keep the flow of business flowing and they would talk several times under that strained ruling.

This does not refer just to the matter of postcloture but this refers generally to the two-speech rule. That would be a very, very strained rule and inhibit any orderly proceedings.

That never was the rule. It is not the rule. The rule is very clear. It says do not make more than two speeches.

Do not make more than two motions, do not make more than two inquiries of the Chair, whether for a quorum or a parliamentary ruling. This is strained nonsense. It has no support whatsoever in any precedent in any parliamentary body.

Mr. DOLE. Mr. President. I just want a point of clarification. As I understand it, the two-apeech rule applies to two speeches on the same issue. If I had 10 amendments, I could make 20 speeches, is that correct?

The PRESIDING OFFICER. Two speeches on the same question.

Mr. DOLE. So whatever the question was, if there were dozens of questions, I could make dozens of speeches?

The PRESIDING OFFICER. The Senator is correct.

Mr. DOLE. I think that is precisely what the Senator from South Carolina had in mind. It is important that we understand that, I think.

Mr. HOLLINGS. Right.

Mr. BYRD. Mr. President, precisely what was the Chair’s ruling?

The PRESIDING OFFICER. The Chair ruled as follows:

Under regular order, the Senator from South Carolina has already delivered two speeches on the same subject. A third speech would be out of order.

Mr. BYRD. Mr. President, if that constitutes the ruling of the Chair,then the appeal to that ruling–which, under cloture; is not debatable. and to which I intend to speak–this may be my second speech; it is, I guess. But I shall still have some time under the hour, I suppose, and I can get additional time, maybe. That rings up another point. If my hour runs out, that is the end of my second speech. Can another Senator yield mean additional hour under the cloture rule? I ask the Chair.

The PRESIDING OFFICER. Another hour can be yielded to the Senator as leader.

Mr. BYRD. Suppose at the end of my second speech, my hour runs out. The Chair says the time has expired. I no longer have recognition, am I correct, at that point?

The PRESIDING OFFICER. The Senator is correct.

Mr. BYRD. Then Mr. DOLE very graciously says. “Well. I will yield the Senator from West Virginia an additional hour.” But I have already made two speeches. What good does it do for him to yield me a second hour, or third hour, to which I am entitled under rule XXII as a leader or as a manager or as the ranking manager? Under this ruling. I am just pointing out that such a ruling in essence would, to all practical intents and purposes, invalidate the provision under rule XXII whereby other Senators may yield additional time to the majority leader or to the minority leader or to the manager of the bill or to the ranking manager. They may yield, but the recipient cannot be recognized for what would then constitute a third speech.

The ruling says:

Under regular order, the Senator from South Carolina has already delivered two speeches on the same subject. A third speech would be out of order.

If we simply appeal that ruling, the Senate would be doing this:

It would be simply saying that the Senator from South Carolina had not delivered two speeches on the same subject and he will be allowed to speak the third time. That is all we would achieve. We would just be saying, no, the Chair was wrong, Senator HOLLINGS has not delivered two speeches.

Second, the Senate would be making a very bad judgment in that case, because the Chair said a third speech would be out of order. We all agree that the third speech is out of order. So if we appeal the ruling of the Chair just based on that language alone, we are saying the Chair is wrong, a third speech would not be out of order. The verbiage of the ruling itself is not sufficient alone for the Senate to clarify this simple matter simply by appealing the ruling of the Chair.

The PRESIDING OFFICER. The Senator’s 1 hour has expired.

Mr. BYRD. Mr. President. I ask unanimous consent that I may speak further in advance of the appeal which I shall make.

The PRESIDING OFFICER. Is there objection? Hearing none, it is so ordered.

Mr. BYRD. Mr. President, the Presiding Officer said, reading from the transcript:

It is the interpretation of the Parliamentarian that any recognition is considered in this context as a speech and, of course, the reading of the transcript will give full evidence of the exact request of the Senator from South Carolina.

I had asked the question as to whether or not, Mr. HOLLINGS having gotten recognition and having suggested the absence of a quorum, that action on his part in suggesting the absence of a quorum constituted a speech. The Chair says:

It is the interpretation of the Parliamentarian that all recognition is considered in this context as a speech–

We are told by the Chair, upon the advice of the Parliamentarian, that any recognition for any purpose when the Senate is proceeding under cloture rules, the Senate having voted cloture, that such recognition constitutes a speech. That is one speech.

Mr. LONG. Will the Senator yield?

Mr. BYRD. Yes.

Mr. LONG. I ask the Senator to yield on my time.

Mr. President, the precedent to which the Senator addresses himself is the precedent made by the father of the Senator speaking. My father was standing right there at that chair. At that time, the National Recovery Act had been declared unconstitutional when Franklin Delano Roosevelt was President. My father knew the public was overwhelmingly disgusted with the whole thing and he tried to make a revised National Recovery Act. My father was joined by a minority of the Senate–they were Democrats, by the way. They undertook to speak against the National Recovery Act, that the public was disgusted with the whole thing. It should be declared a lousy idea and forgotten and dispensed with. But the administration was trying to save what it could of an act that had been declared unconstitutional under the Constitution of the United States by the Supreme Court.

I recall my father standing there and going on at great length about what fine, courageous justices they were, to have the courage to stand up against a powerful President of the United States and the rest of it. I was about 15 years old at that time, sitting right over there on that side of the family gallery that we are looking at from here.

So, as his speech went on and on, he suggested the absence of a quorum. Now, prior to that time, the record for a filibuster was set by Senator Robert La Follette of Wisconsin. He spoke for about 18 hours, but he had about a dozen quorum calls in the course of all that. In the tradition of the La Follette speech, the great Senator from Wisconsin, Huey Long suggested the absence of a quorum. So someone made the point of order that by suggesting the absence of a quorum, he had terminated his first speech and commenced a second speech.

John Nance Garner, in loyalty to the White House, sitting there in the chair, proceeded to rule that that was correct, and in doing so he overruled all the precedents prior to that time. How could Bob La Follette get away with it a dozen times and Huey Long not get away with it once? Well, it was because, I assume, the powers that be decided Huey Long should not be accorded the same courtesy as accorded Bob La Follette so such a ruling was handed down, and he proceeded to go on from there notwithstanding that ruling.

Now, at the conclusion of that speech, there was a Senator from one of the other States–either Senator Gore or Senator Schall–who was in total agreement. There were two blind Senators, it turned out at that time, both of them strong supporters of my father’s position, so one of these blind men got up and submitted a transcript that would stand about a foot just in the written pages. He sent it to the desk and asked under usual courtesy that the speech might be read. The clerk proceeded to rifle through that speech about five pages at a turn. He would lower his voice and turn about five pages; lower his yolce and turn about five pages and disposed of a 150-page speech in about 5 minutes. And those who where on my father’s side thought that was not fair at all. I recall that the man who was then my father’s assistant clerk, who today is described as administrative assistant–his name was Bob Christianberry–was outraged about that and he said, “How dare you do something like that? That speech would have taken at least 2 hours to read, maybe 5 houn.” And I recall one speaking from the other side said. “Well, now, let me ask you fellows how long it would have taken that gentleman when you were Governor?” And Mr. Christianberry said, “Well, we probably would have gotten through it in about half that time.”

But, it is best to recognize practicality on occasion. The practical matter was that rule was set. It was something of a usurpation at the time.

Now, to suggest that a mere parliamentary inquiry, for example, would be a speech, in my judgment is an outrage. At some point we ought to be willing to be fair about a matter like this and to recognize that a speech means more than just making a point of order or to ask a parliamentary inquiry or something of that sort. Now, as one who has been in many filibusters in years gone by, if it is a crime–and a filibuster by definition is an act of piracy–then I would assume that one could have a very tight rulebook on anyone who is filibustering in the Senate, if that is what it be. But what would it gain one to deny a Senator his rights to speak on the motion to proceed when you look at what lies just beyond that? For example, when you get the bill before the Senate, a Senator can offer an amendment–he can offer any number of them–so that one can still speak at great length even when the motion to proceed has been agreed to.

So my thought about the matter is we should be reasonable and tolerant about this matter. And I say that as one who voted for the bill and one who intends to vote for it.

Mr. BYRD. Mr. President. I thank the distinguished Senator from Louisiana. The Chair referred to the occasion when the distinguished Senator’s illustrious father was speaking and made the point about a quorum.

Mr. President let me also make it clear that the two speech rule does not obtain just when the Senate is operating under cloture. It obtains at any time on any day. Am I correct, may I ask the Chair?

The PRESIDING OFFICER. The Senator is correct.

Mr. BYRD. Now. Mr. President,looking at the Chair’s ruling and laying the predicate for my appeal, the Chair said: “The Senator from Wisconsin does not have to be recognized. He made a call for the regular order.”

Well, obviously. none of that constitutes the ruling of the Chair. No one disagrees.

The Chair went on to say. “A third speech would be out of order.” Well, nobody disagrees with that. That is clear. So we must confine ourselves in crafting the appeal and in voting thereon, confine ourselves to address the ruling–it being that under regular order, “the Senator from South Carolina has already delivered two speeches on the same subject.”·

Now, the Chair had to have some rationale on which to base that ruling. Now, if I could ask the Chair at this point if the Chair would please state the reasonings behind its ruling, the rationale behind the ruling to wit, that the Senator from South Carolina had already delivered two speeches on the same subject.

The PRESIDING OFFICER. Since it is the responsibility of the Chair to keep time, the Chair had noted that on at least two occasions the Senator from South Carolina has used least 1 minute in debate.

Mr. BYRD. Mr. President, would the Chair cite those two instances?

The PRESIDING OFFICER. The Chair now has the transcript which it did not have at that point and has ascertained that the Senator from South Carolina spoke on 11 different occasions in that period.

Mr. BYRD. Mr. President. has the Chair just stated that the Senator from South Carolina had made 11 speeches?

The PRESIDING OFFICER. The Chair did not say that the Senator from South Carolina had made 11 speeches. The Chair said that the Senator from South Carolina had spoken 11 times.

Mr. BYRD. Would the Chair cite for the RECORD those 11 instances?

The PRESIDING OFFICER. The Chair will read each instance.

Mr. HOLLINGS. Mr. President. I suggest the absence of a quorum.

The PRESIDING OFFICER. Business has not intervened since the last quorum call; therefore–

Mr. BYRD. Mr. President, will the Chair indulge me for a suggestion? We are reading from the same transcript. So that I might follow the Chair, will the Chair indicate the page numbers on which the Senator from South Carolina spoke 11 times?

The PRESIDING OFFICER. The first instance the Chair read from is on page 55.

Mr. BYRD. I thank the Chair.

The PRESIDING OFFICER. The second is also on page 55:

Mr. HOLLINGS. No business has intervened, Mr. President?

Mr. HOLLINGS. That is a motion, not a speech.

The PRESIDING OFFICER. The third instance is on page 56.

Mr. LONG. Is the Chair saying that that was a speech?

The PRESIDING OFFICER. The Chair did not say there was a speech. The Chair said the Senator from South Carolina spoke on 11 occasions.

Mr. LONG. Will the Chair state which one was a speech?

Mr. BYRD. I ask the Chair be allowed to state the 11 instances, so that the RECORD will be concise and clear.

The PRESIDING OFFICER. The third instance is on page 56:

Mr. HOLLINGS. Mr. President. May I inquire of the Chair–we have had some talk. What constitutes business?

The fourth instance, on page 56:

Mr. HOLLINGS. But not debate?

The fifth instance, on page 56:

Mr. HOLLINGS. I appeal the ruling of the Chair and ask for the yeas and nays.

The sixth instance, on page 56:

Mr. HOLLINGS. Mr. President. I suggest the absence of a quorum.

The seventh instance, on page 56:

Mr. HOLLINGS. Oh yes, Mr. President; now business has occurred.

The eighth instance, on page 68:

Mr. HOLLINGS. Parliamentary inquiry. What is the motion?

Page 68, the ninth instance:

Mr. HOLLINGS. The appeal was out and then we got a quorum call.

The tenth instance, on page 68:

Mr. HOLLINGS. I withdraw the appeal. Is that all right?

The eleventh instance:

Mr. HOLLINGS. The appeal is withdrawn and I suggest the absence of a quorum.

Mr. BYRD addressed the Chair.

The PRESIDING OFFICER. The minority leader.

Mr. BYRD. Mr. President, it is obvious to anyone who is willing to look the facts in the eye that we are not talking the same language in this Chamber. I have searched this transcript. There is one speech, which everyone would have to agree, by Mr. HOLLINGS–one speech–and that was before he could finish. That was on page 51 of the transcript–it began on page 51 of the transcript–and that was interrupted, without his having yielded the floor. That was interrupted by Mr. KASTEN when he asked for the regular order, saying:

The Senator from South Carolina has already spoken twice on this issue…

Mr. HOLLINGS. I have not yielded the floor, Madam President.

That was one speech.

The instances the Chair has cited make it very clear that the Chair, on the advice of the Parliamentarian, is defining any motion, any request for the yeas and nays, any quorum call, any appeal, any of such motions which require any action whatsoever of the Senate. as a speech, in the interpretation of the two-speech rule.

Mr. HOLLINGS. Mr. President, will the distinguished minority leader yield at that point?

The PRESIDING OPFICER. The Chair only said there were two speeches.

Mr. HOLLINGS. Will the distinguished Senator ask the Parliamentarian to designate the two speeches? Then we will know where they are.

Mr. BYRD. Yes, I will be glad to.

The PRESIDING OFFICER. The first speech is on page 55 to page 56, and the second one is on page 68.

Mr. BYRD. On page 55, would the Chair read the first speech by the Senator from South Carolina?

The PRESIDING OFFICER. All that the Chair read. the statements, 1 through 7, constitute the first speech.

Mr. HOLLINGS. All of that, 1 through 7 constitutes the first speech? Come on.

Mr. BYRD. And the second speech?

The PRESIDING OFFICER. The second speech, page 68, includes items 8 to ll.

Mr. HOLLINGS. That is when I was objecting to the ruling.

Mr. BYRD. Mr. President, the ruling of the Chair having been that “The Senator from South Carolina has already delivered two speeches on the same subject,” and that, from a careful study of the transcript, it having been shown that in the ordinary understanding of the English language, the Senator from South Carolina made one speech, that being the one which begins on page 68 of the transcript and which speech was interrupted by the call for the regular order by Mr. KASTEN. I appeal that ruling on the basis-

Mr. LONG. Mr. President, will the Senator yield at that point?

Mr. BYRD. I yield.

Mr. LONG. Mr. President. I hope the Senator will withhold that appeal for a moment. I would like to claim the floor for a moment or two.

The PRESIDING OFFICER. (Mr. EVANS). The Democratic leader has the floor.

Mr. LONG. Mr. President, will the Senator yield?

Mr. BYRD. I will yield.

The PRESIDING OFFICER. The Senator from Louisiana.

Mr. BYRD. If the Senator will allow me. I yield, Mr. President, with the understanding that I do not lose the right to the floor.

The PRESIDING OFFICER. Without objection, it is so ordered.

The Senator from Louisiana.

Mr. LONG. Mr. President, In situations such as this, the Senator from Louisiana has been involved on both sides of these issues. The Senator from Louisiana has been in filibusters on occasion, and on occasinn he has been on the other side, seeking to shut off a filibuster. One finds himself in that situation, having served 38 years in this body.

And when these type situations occur, this Senator has always asked himself, Does the end justify the means? In other words, Do you want to deny the person the right to further proceed, or are you justified under the circumstances?

While that moral question has troubled me many times, I finally conclude it is all a matter of degree.

In this situation the Senator from South Carolina has been opposing a motion. Cloture has been voted. He is
entitled to 1 hour and that is all he is entitled to. He is entitled to speak for 1 hour. But the way I read the ruling of the Chair he would be denied the right to speak for 5 minutes.

I found myself in situations where I went to the then majority leader, Mr. BYRD, now the minority leader, and suggested to him that we were going to have to make some new precedents because one exercising his rights after cloture has been voted was unduly delaying the Senate and it gave the then majority leader, Mr. BYRD, problems that he provide leadership to cut off the filibuster which was necessary to do under the circumstances.

But in this situation, Mr. President, for the life of me I do not understand why we need to rule that a Senator has made a speech when he has talked about 1 minute, when he has merely made a motion or spoken about one line in the RECORD.

It just seems to this Senator that that is not justUied. If he had 1 hour, let the Senator from South Carolina speak his 1 hour and during his 1 hour he has the right to make several motions.

I do not think anyone can find any precedent in the record, and I will invite the Parliamentarian to find one if he can, where the mere making of a motion was regarded as a speech by the occupant of the chair. That will be the first time we had such a ruling. If it were made, it would be wrong.

Mr. President, in situations like this, every Senator better· consider his own situation. There may be a time it has served us here but he might be strongly opposed to something that is transpiring in the Senate. He may need to claim his rights on the floor to speak, and to suggest that the one who speaks five or six words or makes a motion or makes an appeal that he has made a speech would be a trespass upon the rights of every Member of this body.

The worst thing about all that is that it would set a precedent that the Senate should not be asked to live with. There is nothing that this Senator ever suggested that ahould be done even in terms of making, new precedents that would go that far.

I have heard the quotatlona in the RECORD that have been read, and please understand, Mr. President, I am for the bill, voted for it in the committee and in due course if the bill reaches final passage I intend to vote for it, but I respect the rights of the Senator from South Carolina, and he is not speaking for a few votes. He is speaking the views of many Senators.

In my judgment, Mr. President, I could not support a proposal to say that the Senator has made two speeches based on that which has been cited for the RECORD.

I would think,. Mr. President, that those who want to pass the bill should do what you have to do in this body when you do not agree with the speech the Senator is making, sit there, or if you want to do what they have done now, vacate your seats, just walk on out and let someone else protect your rights. But the Senator has the right to speak under these circumstances and if it is forced to a vote, even though I for one would like to see the bill passed, I would be compelled to vote to protect the rights of the Senator from South Carolina.

Mr. HOLLINGS. Mr. President, could I have unanimous consent for 30
seconds?

Mr. BYRD. Mr. President, I yield for that purpose with the same understanding as before.

The PRESIDING OFFICER. Without objection, it is so ordered.

Mr. HOLLINGS. Just 30 seconds.

Mr. President, looking at the RECORD right quickly. Mr. HOLLINGS objected on page 50, which is disregarded by the Parliamentarian. On page 51, he disregards again another appearance of mine in recognition for an objection, and again on page 51 down at the bottom of that page; again on page 52 when I said: “By all means. I suggest the Senator go right ahead.”

He just disregards that, and he starts in after his disregard of those appearances, starts counting on page 55 with one and then he goes down and counts 11 instances, and in the 11 instances he says now a quorum call one, a question two, a question three, a question four, appealing of the Chair five, a quorum call six, and seven a statement. “Oh, yes, but business has occurred” Those first seven that constitutes a speech.

Maybe that is why I was not understood on the Presidential campaign if that is the thought.

Then, the second speech I have is 8, 9, and 10 when I asked for a parliamentary inquiry and object and appeal.

I still had not gotten to the talk, and then, when I talk it is the third talk.

It is quite obvious that the Parliamentarian, is a moving target. He was trying to get authority in the books and he could not find authority in the rules or in the precedents and now when asked just a moment ago he moves over to time and he culminates an objection or motion or request for a quorum and he packages those nicely together and he· calls that speech one, and then culminates all times and calls that speech two.

We are going to have to get a magician for a Parliamentarian up here for the regular, ordinary, sane, and prudent man to determine when a speech is made.

This is absolutely ludicrous.

I thank the distinguished minority leader.

Mr. BYRD. Mr. President. I suggest the absence of a quorum, but before doing so, I ask unanimous consent that I may be recognized immediately upon the termination of the quorum call.

The PRESIDING OFFICER. Without objection, it is so ordered.

The clerk will call the roll.

The bill clerk proceeded to call the roll.

Mr. BYRD. Mr. President. I ask unanimous consent that the order for the quorum call be rescinded.

The PRESIDING OFFICER. Without objection, it is so ordered.

The minority leader is recognized.

Mr. BYRD. Mr. President, I appeal the ruling of the Chair, to wit, that the Senator from South Carolina had already delivered two speeches on the same subject. I appeal the ruling of the Chair and I make my appeal to the Senate and base it upon the fact that procedural motions or requests, such as, for example, parliamentary inquiries, appeals from the ruling of the Chair, points of order, suggesting the absence of a quorum, the withdrawal of appeals, requests for the yeas and nays, do not, in and of themselves, constitute a speech within the context of the two speech rule. And I ask for the yeas and nays on this motion.

The PRESIDING OFFICER. Is there a sufficient second? There is a sufficient second.

The yeas and nays were ordered.

Mr. DOLE addressed the Chair.

The PRESIDING OFFICER. Appeals after cloture are not debatable.

Mr. DOLE. Mr. President, I ask unanimous consent that I may proceed for 2 minutes.

The PRESIDING OFFICER. Is there objection? The majority leader is recognized for 2 minutes.

Mr. DOLE. Mr. President. I do this just to make–and I am certain the distinguished minority leader has given this a lot of thought and with a lot of experience.

I guess the question of the Chair would be: If the Chair is overruled, then what would be the consequences?

The PRESIDING OFFICER. If the Chair is overruled, then the Senator from South Carolina would still be making his first speech and would be recognized.

Mr. DOLE. And then, any additional speaker, or from this time on then, in addition to the impact it would have on the distinguished Senator from South Carolina, any of the requests that the distinguished minority leader pointed out at a future time would not, in any event, constitute a speech?

The PRESIDING OFFICER. That is correct.

Mr. DOLE. Are there any others that come to mind of the Chair that should be included?

The PRESIDING OFFICER. The only additional element that comes to mind is a request to divide an amendment as a procedural request.

Mr. DOLE. In addition, there were, I think-–

Mr. BYRD. Would that not be included within the verbiage of the appeal that I made? I said any procedural motion-–

The PRESIDING OFFICER. The Senator is correct.

Mr. BYRD. Or request.

And besides, I did not phrase my appeal in such a way that it is the alph and omega; it is not all inclusive. But these specifics were all set out only as examples.

The PRESIDING OFFICER. The Senator’s statement was not all-inclusive. It was by example.

Mr. BYRD. Exactly.

Mr. DOLE. In this case the Senator from Wisconsin, Senator KASTEN, made a unanimous-consent request that committees be allowed to meet. Would that be covered by the distinguished minority leader’s request?

Mr. BYRD. That would be in the language I included.

The PRESIDING OFFICER. The Chair understands it would tend to include all unanimous-consent requests as being within the purview of this motion and not counted as intervening material.

Mr. BYRD. I said they were procedural. That is in the appeal language now, and we can have the official reporter read it back. It is there.

Mr. DOLE. As I understand the unanimous-consent request itself would be covered by the distinguished minority leader’s appeal.

Mr. BYRD. Yes, and not counted as a speech, standing alone.

The PRESIDING OFFICER. The Chair believes that since the motion is intended to become precedent [of] the Senate, the motion should be available in printed form so that everyone clearly understands precisely what the request is.

Mr. BYRD. The Chair is correct. I would like to prepare it in written form.

Mr. BYRD. Mr. President. I ask unanimous consent that the order of the quorum call be rescinded.

The PRESIDING OFFICER. There is no quorum call in progress.

Mr. BYRD. Mr. President, in response to the Chair’s request that the appeal be made in writing, which the Chair has a right to make and any Senator has a right to make, I have prepared the following appeal in writing:

I appeal the ruling of the Chair, and I make the appeal to the Senate on the basis that, standing alone, procedural motions or requests such as, but not limited to, the following shall not constitute a speech within the context of the two-speech rule: Parliamentary inquiries, appeals from the ruling of the Chair, points of order, suggesting the absence of a quorum, withdrawal of appeals, request for the yeas and nays, requests for a division vote requests for reading of amendments, requests for division of amendments.

The PRESIDING OFFICER. Can the Chair ask for a clarification on the term “standing alone”? Is it the Democratic leader’s intention that if a motion of the sort he has mentioned is preceded by as little as two or three sentences of explanation, that would constitute a speech?

Mr. BRYD. I am attempting to avoid a situation in which a Senator in making a motion to the table, for example, or making a point of order, or making an appeal, stands and lays the predicate for his point of order and speaks thereon; the motion itself would not be standing alone. It would have been preceded by a speech. What I am trying to say is that the motion itself, standing alone, in and of itself, does not constitute a speech.

The PRESIDING OFFICER. For further clarification, the Senator is really speaking of the words that constitute the motion itself?

Mr. BRYD. Yes, the procedural motion.

The PRESIDING OFFICER. Yes.

Mr. BRYD. Or request. And we should keep in mind what we are talking about is the two-speech rule, and that the two-speech rule refers to two speeches on the same question in the same legislative day.

In the case that brought all this colloquy about, the Senator from South Carolina was speaking–he began one speech–and it was on the motion to proceed to the product liability bill.

We are speaking now on an appeal. I am not speaking on the motion to proceed to the product liability bill right now. I am speaking about the Chair’s ruling. So what I am saying is in explanation of the appeal.

There may be those who say, “Well, if he makes a point of order, he has to state why he makes the point of order.” Is that going to constitute a speech? Well, it might very well. It will constitute a speech on that point of order. But, the point of order without the speech, does not, in itself, constitute a speech.

The PRESIDING OFFICER. The Chair says to the Democratic leader that the motion is not debatable.

Mr. BYRD. I understand that. I was only trying to respond to the Chair’s appropriate inquiry.

Mr. DOLE. Mr. President. I ask unanimous consent that I may proceed for 5 minutes.

The PRESIDING OFPICER. Is there objection? The Chair hears none, and it is so ordered.

Mr. DOLE. Mr. President, earlier, I made an inquiry. I think the word “request” was used in the earlier appeal, and I asked whether or not that would cover unanimous-consent requests. Would that be covered in this appeal?

The PRESIDING OFFICER. The latest statement, as put by the Democratic leader, did not include unanimous-consent requests.

Mr. BYRD. May I clarify that? It did include unanimous-consent requests. I said: “I make the appeal of the Senate on the basis that, standing alone, procedural motions or requests…

Mr DOLE. The reason I am concerned about that particular one is that I can envision somebody making a unanimous-consent request that might take a couple of hours. It seems to me that we, in effect, invoke cloture and then permit somebody to speak for hours propounding some unanimous-consent request.

He could get up and say, “I ask that the Committee on Agriculture be permitted to meet.” and then read the bill.

I know that the distinguished minority leader does not intend that.

So I hope it did not include unanimous-consent requests, unless we had some way to circumscribe the request.

The PRESIDING OFFICER. The term “unanimous-consent request” was not in the written version, but the term “request” was in there, and presumably it could be concluded that unanimous consent requests are requests.

Mr. BYRD. Mr. President, I ask unanimous consent that I may respond to the distinguished Senator’s question, which is an appropriate question, and that the time not be charged against him.

The PRESIDING OFFICER. With out objection. It is so ordered.

Mr. BYRD. Mr. President, the predicate itself is the appeal. The examples I have set forth are for explanatory purposes. That is precisely what they are–they are specific examples, and they are not all-inclusive, because I used the verbiage “not limited to.” The appeal is all one sentence.

If I wanted to take out the “such as” and the providing of examples, I would simply say: “on the basis that, standing alone, procedural motions or requests shall not constitute a speech within the context of the two-speech rule.”

So I have used tne words “requests” and “procedural motions.”

Parenthetically, as it were, I am saying, “such as, but not limited to, the following.” That is the parenthetical, explanatory material: parliamentary inquiries, appeals from the ruling of the Chair, points of order, and so on. But it is clear from the verbiage that unanimous-consent requests are included; so that if the leader rises and makes a straight forward unanimous-consent request–nothing more–that does not constitute a speech within the context of the two-speech rule. If the Chair’s ruling were to be upheld, the leaders unanimous-consent request would constitute a speech.

Besides, we have the legislative history, so certainly the readers of the RECORD 100 years from now will understand what we are talklng about, especially now that the majority leader has asked specific the question.

I thank the distinguished majority leader.

Mr. DOLE. I thank the distinguished minority leader.

Mr. President, I will suggest the absence of a quorum, and I would like to discuss the appeal with two of my colleagues who have just come to the door.

I suggest the absence of a quorum.

The PRESIDING OFFICER (Mr. McConnell). The clerk will call the roll.

[... Several other unrelated matters are addressed while Mr. Dole consults with his colleagues -s]

—==—

PRODUCT LIABILITY REFORM ACT

Mr. BYRD addressed the Chair.

The PRESIDING OFFICER. The Democratic leader.

Mr. BYRD. Mr. President, I ask unanimous consent that I may speak for 30 seconds.

The PRESIDING OFFICER. Without objection, it is so ordered.

Mr. BYRD. Mr. President, I hope Members of the Senate do not feel that I have held up the Senate from voting. I have been ready to vote for the last hour or hour-and-a-half. There was some question concerning the appeal. But I think ample time has now transpired so that the Senate may proceed to vote on the appeal.

Mr. DOLE addressed the Chair.

The PRESIDING OFFICER. The majority leader.

Mr. DOLE. I ask that I may proceed for 2 minutes.

The PRESIDING OFFICER. Without objection, it is so ordered.

Mr. DOLE. I think we are ready to proceed, I want to thank the minority leader for his having been ready to proceed for a couple of hours. We have bean having discussions. There are some differences of opinion. I have discussed with Parliamentarian and I think that the Senator from Wyoming has a couple of questions to ask.

We have to keep in mind that this a postcloture situation. As I understand, any of these things could be ruled dilatory. Is that correct?

The PRESIDING OFFICER. The Senator is correct.

Mr. DOLE. I am ready to support the distinguished minority leader’s appeal.

Mr. BYRD. I thank the majority leader. I may say I seek no partisan advantage. I have been seeking to protect the rights of all Senators on both sides of the aisle.

Mr. SIMPSON. Mr. President, I ask unanimous consent to inquire of the minority leader two questions, if I may.

The PRESIDING OFFICER. Without objection, it is so ordered.

Mr. SIMPSON. Mr. President, I think our majority leader has covered it nicely. I do appreciate what the Democratic leader has done. I do not sense that he seeks partisan advantage. If we follow on, we will be severed by the same sword. I do not feel that way at all. I assure the Democratic leader.

I believe we have answered the question that any of these could be ruled dilatory by the Chair under this particular unique procedure in these cloture-type proceedings. Is that correct?

As a matter of fact, there are few precedents that the quorum calls in a postcloture situation can be ruled as being dilatory and various other motions and requests and actions.

The final question, Mr. President is that I am assured then, and I think any of us in the legislative body would want to be assured, that this presentation, this procedure, this rule change, does not have any deleterious or lessening effect upon the essence or the effectiveness of the two-speech rule under our present procedure?

Mr. BYRD. May I say it is not the intent of this Senator to in any way impair the two-apeech rule. I would prefer–I think the question is a good question and should be answered on the record, not only by the offerer of the appeal, the’ mover of the appeal. But I would like it if the distinguished majority whip would propound this question to the Chair so we can an answer from the Chair through the advice of the Parliamentarian, aside from the answer by the mover of the appeal.

Mr. SIMPSON. I do direct that to the Chair of the Chair’s determination of that.

The PRESIDING OPPICER. This appeal will certainly change the interpretation of the two-speech rule from a mechanical interpretation to a rule of reason.

Mr. SIMPSON. I thank the Chair. I thank the distinguished Democratic leader.

The PRESIDING OFFICER. The yeas and nays have been ordered on the appeal. The question is, shall the decision of the Chair stand as the judgment of the Senate?

The clerk will call the roll.

[...]

The result was announced–yeas 5, nays 92…

    3 Responses to “Senate Filibusters and the Two-Speech Rule [a third working thread about forcing the (real) filibuster]”

  1. 1 selise said:

    usatoday helpful posted a scan of senator byrd’s dear colleague letter. since the letter itself is in the public domain, i don’t think there should be any problem for me to post the contents in full here (via ocr):

    February 23, 2010

    Dear Colleague:

    During my half-century of service in various leadership posts in the U.S. Senate – – including Minority Leader, Majority Leader, Majority Whip and now President Pro Tempore – – I have carefully studied this body’s history, rules and precedents. Studying those things leads one to an understanding of the Constitutional Framers’ vision for the Senate as an institution, and the subsequent development of the Senate rules and precedents to protect that institutional role.

    I am sympathetic to frustrations about the Senate’s rules, but those frustrations are nothing new. I recognize the need for the Senate to be responsive to changing times, and have worked continually for necessary reforms aimed at modernizing this institution, using the prescribed Senate procedure for amending the rules.

    However, I believe that efforts to change or reinterpret the rules in order to facilitate expeditious action by a simple majority, while popular, are grossly misguided. While I welcome needed reform, we must always be mindful of our first responsibility to preserve the institution’s special purpose. The occasional abuse of the rules has been, at times, a painful side effect of what is otherwise the Senate’s greatest purpose – the right to extended, or even unlimited, debate.

    If the Senate rules are being abused, it does not necessarily follow that the solution is to change the rules. Senators are obliged to exercise theirbest judgment when invoking their right to extended debate. They also should be obliged to actually filibuster, that is go to the Floor and talk, instead of finding less strenuous ways to accomplish the same end. If the rules are abused, and Senators exhaust the patience of their colleagues, such actions can invite draconian measures. But those measures themselves can, in the long run, be as detrimental to the role of the institution and to the rights of the American people as the abuse of the rules.

    I hope Senators will take a moment to recall why the devices of extended debate and amendments are so important to our freedoms. The Senate is the only place in government where the rights of a numerical minority are so protected. Majorities change with elections. A minority can be right, and minority views can certainly improve legislation. As U.S. Senator George Hoar explained in his 1897 article, “Has the Senate Degenerated?”, the Constitution’s Framers intentionally designed the Senate to be a deliberative forum in which “the sober second thought of the people might find expression.”

    Extended deliberation and debate – when employed judiciously – protect every Senator, and the interests of their constituency, and are essential to the protection of the liberties of a free people.

    With kind regards, I am

    Sincerely Yours,
    Robert C. Bryd

    replyReply to this comment
  2. 2 Blissex said:

    «facilitate expeditious action by a simple majority, while
    popular, are grossly misguided.»

    But the senate is *already* a place where minorities are
    over-protected, by the intentional device of giving states two
    senators irrespective of population.

    Senate simple majorities are already supermajorities of the
    population of the USA because of that. Turning debating rules
    into an additional requirement for further supermajorities is
    not just an abused of the debating rules, it is a wild
    exxageration.

    Byrd evidently thinks of the Senate as a council of equals, but
    it is not, because senators from states with small populations
    matter a lot more than those representing states with large
    populations.

    replyReply to this comment
  3. 3 selise said:

    @Blissex: hi, thanks for your comment. with this post (and previous working threads), i’ve been trying to figure out what the senate rules actually say — since there is quite a bit of misinformation on that. but i do intend to write at least a couple more posts on the subject – one of them will be on the political implications of filibusters. hope you will come back for that one and if you still disagree with me after reading it, give me your best arguments there.

    for now, i’ll just say that a majority of the senate can also represent a minority of the population of the usa. so, like most things, it may be more complicated than it appears at first blush.

    replyReply to this comment

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