Friday, November 24, 2023

The Purpose and Powers of the Senate, Part LXXXV: “Our Rather Irrational Action”

            When, on March 27th, 1962, the Senate finally arrived at a formal consideration of Spessard Holland’s anti-poll-tax amendment after enduring two weeks of pseudo-filibuster by a gang of Holland’s fellow Southern Democrats, the senior senator from Florida had more than a few things to get off his chest. For two weeks he had patiently borne the incessant prattle of men who would normally have counted him as an ally, listening calmly and cooly as they insisted without proof that his efforts were all in vain, that his methods were out of order, and that the problem he was trying to solve wasn’t really a problem at all. On occasion, he would interject – mostly to provide the same increasingly wearied clarification of fact – but for the most part, he allowed his opponents to talk to their heart’s content. By March 27th, however, Holland was through with listening. He had permitted his fellow Southerners to pour out their resentment at his efforts without interruption and stood by as his various allies rose to the defense of what was arguably his life’s work. But now that the Senate had formally agreed to hear his proposal, the time had at long last come for the gentleman from Florida to make his case. Whether he had waited simply out of a sense of propriety – preferring to discuss his proposed amendment after the appropriate motion had been adopted – or because he wished to take stock of all of his opponents’ various counterpoints before beginning to dismantle them, the effect was ultimately the same. This is all to say that, on the 27th, Spessard Holland put on a clinic.

            To begin with, Holland addressed himself to his opponents’ hand wringing over his supposed disregard for Senate procedure. As custom dictated that proposed amendments had to be submitted to, and approved by, the Senate Committee on the Judiciary before being brought to the floor for a vote, a number of the senators who took issue with Holland’s proposal avowed that his attempt to circumvent this process was fundamentally improper and represented a threat to the long-term health of the upper chamber of Congress. In response to this criticism, the senator from Florida keenly asserted that the reverse was actually the case. That is to say, he wasn’t actively harming the Senate by threatening the authority of the Judiciary Committee. Rather, he was saving the Senate by circumventing the efforts of the obstructionists in control of the same. To this end, he observed that,

Some comment has been made to the effect that we are destroying the jurisdiction of one of our ablest committees, the Committee on the Judiciary, in taking up this measure as we are. I want it made very clear that not only are we not destroying that jurisdiction, but that for 14 long years I have been invoking that jurisdiction, and that there have been five thorough, detailed hearings upon this proposal, the records of which are printed and are available now to any Senator who may wish to read them, and on four occasions there have been recommendations from the subcommittees which handled these hearings to the full committee that the measure be reported to the Senate. However, the measure has never been reported to the Senate.

Holland seemed to want to make clear that he was not a radical by nature. His instinct had always been to go through the proper channels and observe the established procedures. And so he had done while pursuing a federal ban on the poll tax. In this case, however, the established procedure had become a trap. In spite of submitting and resubmitting his proposal to the Judiciary Committee over the course of fourteen years – and in spite of the relevant subcommittee holding numerous hearings and publishing a number of favourable reports – the proposed amendment in question had yet to be sent to the Senate floor. Clearly, something or someone was actively stopping the Judiciary Committee from properly performing its essential function. Bearing this in mind, it was only sensible for Holland and his cosponsors – within the bounds of propriety, of course – to take matters into their own hands.

            Certainly, Holland wasn’t of the opinion that the Judiciary Committee should be ignored as a matter of course. Nor did he feel that his desire, in this instance, to circumvent the same represented any kind of imposition upon the authority of one of the most venerable organs of the United States Senate. It was just that, as far as Holland and his cosponsors were concerned,     

The conditions in which we found ourselves were such that the joinder of 68 Senators, more than enough to sustain this or any other constitutional amendment, had not brought forth a report or even a report without recommendation which would bring the measure to the floor of the Senate. So when we come to the point where the inaction of a great committee has resulted in such a situation as this for 14 years; and when we now have an ample number of Senators as cosponsors of this measure to assure its submission to the States, so far as the Senate is concerned, it is a protection of the rights of Senators and a protection of the rights of the Senate itself to bring up the matter in any way that is available, from a strict parliamentary standpoint, and that is what we have done here.

The Judiciary Committee was important. Its authority was worth respecting. But it was not more important or more worthy of respect than the Senate itself. When sixty-eight senators signaled their support for a given measure, but a single Senate committee prevented them voting on the same, clearly something was amiss. And it was not just a majority that favoured the Holland amendment, but a two-thirds majority. That was enough – at the time – to break a filibuster, confirm a cabinet nominee, ratify a treaty, or send a constitutional amendment to the states. Did it make any sense at all that a single committee – or perhaps just the chair of a single committee – should have been able to deny such an overwhelming majority from making manifest its will? Spessard Holland certainly did not think so and acted appropriately.

            As to the argument – put forward frequently by a number of Southern Democrats during the preceding two weeks of debate – that Holland and his allies were carrying out the will of pro-civil rights interest groups rather than working on behalf of the welfare of the American people, Holland likewise had quite a bit to say. “There are persons [,]” he said,

Who think we are interested only in white voters, and there are persons who think we are interested only in Negro voters. So far as I am concerned, I think a citizen is entitled to vote for his President, his Vice President, his Senators, and his Representatives, regardless of what may be the law of the State with reference to local elections. I think the results accomplished in our State, where in 1960 1,540,000-plus voted, indicate rather conclusively the beneficent nature of what Florida has done.

Certain of Holland’s fellow Democrats, to be sure, would violently disagree with this particular view of things. Indeed, they had done so numerous times already. As far as these Southern senators were concerned, it was no business of anyone living in any state outside of their own what went on there in terms of the law and its enforcement. Every state was sovereign, they said, and answerable only to its citizens. But while Holland, in almost any other instance, would have heartily agreed, in this case he could not help but beg to differ.

            Consider, the Floridian asked of his fellow senators, the results of the recent Election of 1960 in the State of Mississippi. “The winning ticket of electors [,]” he said, referring to that of the Democratic Party,

Polled 116,000 votes, just under 10 percent of the total. As I have just remarked, the total vote cast was 25 percent. How anyone can feel that that was a representative expression of the people of that good State, and how anyone can feel that other States and other people everywhere in the Nation do not have a stake and a proper interest in that sort of situation, I do not see. Personally, I have a very deep interest in seeing that representative expressions are made in elections for national officers, whether it be in my own city, my county, my State, or any other State, by as full participation of the citizens as can be had, because I believe in the voice of the people. I decry any effort to confine the voice that is heard at elections to a much smaller segment of the citizens than that which truthfully represents the whole people.

In presenting this argument, Holland effectively reiterated the essential premise of American federalism under the auspices of the Constitution. That is to say, he asserted the existence of dual layers of sovereignty existing on roughly co-equal terms. Within this model, the states are each sovereign and self-governing entities and thus fully entitled to all of the accustomed powers and responsibilities thereof. And each of these sovereign states derives said powers and responsibilities from the constituent citizens residing therein. But these same constituents, in addition to being citizens of a given state, are also citizens of the United States of America. And that entity, which is also sovereign and self-governing, has powers and responsibilities separate from those of the states and is entitled to exercise the same outside of state interference.

In consequence, if a majority of the citizens of the United States – through the medium of their elected representatives – express their collective intention to ensure that federal electoral laws across the country are structured and applied in a fair, equitable, and consistent manner, it makes no difference if a handful of states raise objections. In the first place, the outcomes of federal elections affect the residents of more than just a handful of states, thereby arguably placing the regulation of federal election law more in the federal sphere than in that of the states. And also, unless the relevant states amount to a majority of the overall population, denying the majority’s right to make manifest its will would place a potentially dangerous amount of power in the hands of the minority. Again, this could hardly be said to constitute a novel line of reasoning. Federalism and majority rule are at the heart of the American understanding of republican government. But given the circumstances, it’s not so hard to understand why Senator Holland felt the need to restate their importance as he did. His opponents were acting in a way that essentially defied how the United States was designed to function. Individual states are not supposed to be able to countermand the will of an overwhelming national majority to see accomplished an entirely constitutional objective. And for that matter, said national majority is not supposed to turn a blind eye when it perceives an injustice taking place, even if said injustice is only occurring in a few states. Whether Alabaman or Mississippian, New Yorker or Californian, Americans of all stripes have a vested interest in looking out for one another and in ensuring that the same rights and privileges are enjoyed by all.

Operating from within this very basic understanding of American federalism, Holland’s tone was very much one of neighbourly concern. “How can we feel that that is a representative expression?” he lamented of the cited election results.  

Should not other States be deeply concerned about expressions from my State, or from the State so ably represented by the present Presiding Officer, the Senator from Illinois [Mr. Douglas], or from every other State, as representative of the thought of the people of those States? How else may we be satisfied that righteous verdicts are being reached?

Certainly, in some very important ways, the states were – and are – legally distinct and sovereign entities upon which neither the federal government nor the governments of their fellow states can rightly exert their will. But in other ways – equally real and important – there exists a single country called “The United States of America” whose citizens are both bound and empowered to be responsible for one another. And so while it may have been fair in some cases to say – as men like J. Lister Hill and James Eastland were fond of saying – that it was legally beyond the remit of the people and government of the state of Florida, say, or New York, or Massachusetts to attempt to question or alter the legal status of the citizens of any other state, it was also perfectly acceptable – or indeed eminently desirable – for the inhabitants of one part of the American republic to express concern for, and attempt to render aid to, the inhabitants of another part.

            This, Holland avowed, was all that he was trying to do. Offer aid, that is, to some of his fellow citizens. And while certain of his colleagues in the Senate might have felt compelled to make a personal objection, none of them could rightly claim that the senior senator from Florida was acting either unconstitutionally or with anything less than the best interests of the Senate at heart. “I have done my level best [,]” he explained,

In every Congress to bring it out of committee and before the Senate in the regular way; and I have no apology whatever to make for bringing it up at this time, in this way, with the gracious concurrence of both the majority leader and the minority leader. When the time comes that the will of the Senate can be thwarted, instead of furthered, by the inaction in a committee for 13 years, it occurs to me that the Senate then has a right to act, particularly when it may act only by two-thirds vote of its membership, indicating the breadth of the support the measure enjoys.

In furtherance of his cause, Holland then described a series of letters and wires he had received from people living in Mississippi and Alabama who had been prevented from voting because of the poll tax laws then in force in their states. These people, he avowed, were not necessarily prevented from voting because they could not afford to pay said tax, but because the systems of collection created issues for them which they found they could not ultimately overcome. And if the senators from those states were adamant in their refusal to offer any kind of assistance, then Holland would take it upon himself to do so on their behalf.

            As if to drive home the patent absurdity of the situation that Holland had but moments before lamented, the Chairman of the Senate Subcommittee on the Constitution, one Estes Kefauver (1903-1963), then took the floor to commend Senator Holland on his efforts thus far. “I believe the committee system has served its legitimate purpose several times on this particular subject [,]” he began.

No useful purpose would be served by deferring action on this amendment. The hearings held by the subcommittee in the present and past Congresses have been widely distributed and many Members of the Congress and the public have made use of them. The issue is a clear and straightforward one. It has been thoroughly heard and discussed and debated more than enough over the past 12 years. I, therefore, strongly urge my colleagues to join me in voting in favor of the amendment proposed by the distinguished Senator from Florida.

For context, let it be recalled that the aforementioned Subcommittee on the Constitution was specifically a subcommittee of the Committee on the Judiciary. Which is to say that Kefauver – a Tennessee Democrat – was also a member of the Judiciary Committee, the chair of which was James Eastland. Bearing this fact in mind, Kefauver’s encouragement of Holland’s efforts would seem to take on an added significance. Not only was he arguing – as the leader of the body responsible for evaluating such things – that Holland’s proposed constitutional amendment was both sound and necessary, but he was doing so in defiance of the chair of the larger committee on which he sat. A member of the Judiciary Committee, he was in effect telling Holland to go ahead with his plan to circumvent the Judiciary Committee. This was quite far from normal procedure. But then again, so was keeping a proposed constitutional amendment from reaching the Senate floor for thirteen years in spite of numerous favourable reports from the relevant subcommittee.

            Eager, it seemed, to add strangeness to strangeness, Richard Russell chose this point in the debate to introduce the point of order he and his colleagues had threatened to bring to the Senate’s attention over a week prior on March 15th. “I take the position [,]” he said,

That the Constitution itself prescribes the method by which it may be amended, and that the pending proposal does not appear in the Constitution as a means whereby a proposed constitutional amendment may be submitted to the several States. I further submit that in the 173 years since the Constitution of the United States was first ratified and approved, no attempt whatever has ever been made to so distort the constitutional process. This is the first time in 173 years that an effort has been made to use a piece of proposed general legislation as a vehicle for amending the Constitution of the United States and submitting that amendment to the several States.

In point of fact, Russell was not wrong. It was true that the text of the Constitution did not explicitly justify Holland’s use of a joint resolution as a vehicle for a proposed amendment. Nor was there any precedent – “In the 173 years since the Constitution of the United States was first ratified and approved” – for the specific procedural “switcheroo” that Senator Holland was attempting. But whereas Holland did not take it as a given that these facts equated to a functional disqualification of his efforts, Russell and his cohorts very much did. “There is nothing in the rules of the Senate,” the Georgian continued, “there is nothing in any statute to be found anywhere in the statute books, and there is not a line in the Constitution of the United States that would justify the procedure which is undertaken here, today. I submit, Mr. President, that it is wholly unconstitutional.”

            The only problem with this position, of course, is that it was itself unjustified by any standing precedents, rules, or procedures. The fact that a particular legislative procedure is not explicitly mentioned in the Constitution does not necessarily make it unconstitutional. The fact that there is no precedent for a particular parliamentary manoeuvre does not necessarily make it invalid or functionally null. And the fact that the rules of the Senate do not give sanction to a particular congressional process does not necessarily make it against the rules of the Senate. Holland’s chosen approach was novel – he would not have argued otherwise – but that did not automatically mean that it was improper or impermissible. It would have been different, of course, if Russell could point to an explicit contradiction between what the senior senator from Florida was attempting and the specific terms of the Constitution. But he quite simply could not. Indeed – and though he had previously intimated otherwise – Russell couldn’t even argue that Holland was violating the rules of the Senate. He admitted as much when asked to clarify precisely which of the Senate explicit regulations Holland was supposed to have violated. “I did not say any rule of the Senate is violated by it [,]” Russell responded.

I said the Constitution is violated by it. The Senate itself has never dealt with this matter. Even in its wildest dreams, the Senate could never imagine that any resort would be made to such an unorthodox procedure as this one, in order to get such a matter as this before the Senate. Therefore, the Senate did not adopt a rule in that connection.

            Notwithstanding his and his cohorts’ prior claim to have had the defeat of Holland’s proposed amendment well in hand, it was at this point that Russell’s confidence began to waver. Heretofore unswervingly confident, the Georgian began to grow increasingly strident and embittered. Having been forced to admit that Holland was in fact not in danger of breaking any Senate rules, Russell hastened to add that this should not have been the end of the matter.  “I think that in order to justify our positions,” he noted sourly,

And our rather irrational action, we might follow rule XL—I believe we now have 40 Senate rules—by a rule XLI, stating about as follows: "Provided, That none of these rules shall be considered to apply in any case in which an organization of professional do-gooders claiming a membership of a million voters shall declare that any resolution, motion, legislation, or other proposal involves a question of minority rights. In all such cases, neither any rule, precedent, law, nor constitutional provision shall be binding or shall be cited in an effort to restrain the Senate from an immediate vote or the Presiding Officer from declaring all points of order out of order.

Almost two weeks prior, the Southern opponents of Holland’s amendment had been crowing that because the procedure he was endeavouring to follow required the unanimous consent of the Senate – and because they were in no way inclined to give their consent – the thing was as good as dead. And now, here was Richard Russell essentially admitting defeat while complaining that as long as the Senate was going to persist in making things up as it went, it might as well give itself written permission to do so.

            As ever a model of patience and composure, Spessard Holland ignored his fellow Southerner’s rather petulant outburst and instead addressed himself entirely to the logical basis of the latter’s argument. “The rule laid down in article V of the Constitution does not go so far as to provide what vehicle shall be used by Congress [,]” he stated accordingly.

It simply says Congress, by two-thirds vote in both Houses, may accept the amendment. My information and belief is that there is no requirement at all as to the vehicle or resolution number, so long as the body of the resolution is there. It describes definitely that it must be approved by two-thirds of the Members of each House before it can be submitted to the several States. There is no doubt at all in my mind that that is the situation.

Naturally, Russell was disinclined to budge. He and his fellow obstructionists had not held up the business of the Senate for almost two weeks just to completely cave in when the going got tough. “This proposal to amend a regular legislative proposal,” he replied,

Which requires a majority vote and which would go to the President for his approval or disapproval, by a constitutional amendment, which requires a two-thirds vote and which would not go to the President for his approval or disapproval, is wholly unconstitutional and that it should be so declared, and that this matter should be brought up in a way in keeping with the Constitution of the United States.

            So, perhaps it would not be fair to say that Russell had already admitted defeat. He had granted, upon being pressed, that Holland’s initiative did not violate any of the Senate’s rules as written, and seemed to tacitly acknowledge that, regardless of any precedents or regulations to the contrary, the Senate was going to do whatever the majority commanded. But he wasn’t prepared to concede that the means by which Spessard Holland was attempting to amend the Constitution were themselves constitutional. This, in the end, is what his point of order sought to establish—whether it was constitutional to submit an amendment for the approval of the Senate by way of a joint resolution of the same. Fortunately for all concerned – with the notable exception of Russell and his fellow obstructionists – there was a procedure in place for adjudicating the constitutionality of motions before the Senate. Accordingly, Vice-President Johnson – in his capacity as presiding officer – declared that the precedents of the Senate held that such a question could only be settled by resorting to a roll call vote. The yeas and nays were thus ordered, and Russell’s point of order was subsequently tabled – suspended, that is to say – by a margin of 58-34. The finding, in essence, was that Russell’s belief in the unconstitutionality of Holland’s plan was not reason enough to keep said plan from being enacted.

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