October 1, 1977
Page 31868
Mr. MUSKIE addressed the Chair.
Mr. ABOUREZK. I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second? There is not a sufficient second.
Mr. DANFORTH. There is.
The PRESIDING OFFICER. There is not. There is a sufficient second.
The yeas and nays were ordered.
Mr. MUSKIE. Mr. President, I ask unanimous consent that there may be 10 minutes of debate on this issue.
The PRESIDING OFFICER. Will the Senator suspend? May we have order? The Senator wants to be heard. May we have quiet while the Senator proposes a request.
Mr. MUSKIE. I think this is an important issue. It will establish an important precedent with which we will have to live for years, and Senators ought to focus on that fact.
I have no desire for extended debate. I made my point somewhat earlier; Senator BYRD made it, and I think we ought to have 10 minutes of debate.
I ask unanimous consent that we have 10 minutes of debate simply to focus Senators' attention on the significance of the issue.
Several Senators addressed the Chair.
Mr. CURTIS. Reserving the right to object, may I inquire is the intention that the 10 minutes would be charged as part of the time allocated to the Members?
Mr. MUSKIE. I am willing to charge it all to my time.
Mr. DANFORTH. Mr. President, reserving the right to object, on that understanding I will not object provided it is clearly understood that at the end of 10 minutes we are not going to be in a position of then asking for an additional period of time, and providing that the time begins immediately, and providing that a vote will then occur 10 minutes from now without intervening quorum calls.
Mr. MUSKIE. I am willing to accept that as part of the request.
The PRESIDING OFFICER. Is there objection?
Mr. HEINZ. Reserving the right to object, Mr. President, I think the unanimous consent request should be clearly restated.
Mr. MUSKIE. The Chair has just ruled that it would submit to the Senate the question of whether or not as to an appeal from a ruling of the Chair that an amendment is not germane, that the appeal itself is itself dilatory. The Chair has submitted that question to the Senate.
I ask unanimous consent that that question be debated for 10 minutes and that immediately at the end of it there be a rollcall vote on that amendment. I think the rollcall vote has already been ordered.
That is my request.
The PRESIDING OFFICER. The question also propounded by the Chair would include that the amendment would have to be out of order on its face. The Chair would have ruled germaneness has nothing to do with it.
Mr. MUSKIE. All right. I understand that question.
Mr. DANFORTH. Mr. President, reserving the right to object.
The PRESIDING OFFICER. So there will be no misunderstanding, the Chair will restate the original statement. The Chair submits to the Senate the question, as to the point of order, that an appeal from the ruling of the Chair that an amendment is out of order on its face is dilatory, is that well taken?
Mr. DANFORTH. Reserving the right to object, it is my understanding that the unanimous consent request of the Senator from Maine includes the fact that the full 10 minutes will be charged to the time of the Senator from Maine.
Mr. MUSKIE. Yes. I have no objection.
The PRESIDING OFFICER. The only point of clarification the Chair makes is, is this a split on time or is the 10 minutes all to the Senator from Maine?
Mr. MUSKIE. To be equally divided between myself and the Senator from Missouri if that is his desire.
The PRESIDING OFFICER. The time to be equally divided, 5 minutes on each side.
Is there objection to the unanimous consent request of the Senator from Maine? Without objection, it is so ordered.
Mr. ABOUREZK. Could we have order, Mr. President, so the debate can be heard?
Mr. MUSKIE. Mr. President, I yield myself 4 minutes so that I may have 1 minute remaining for an appropriate response if necessary.
Mr. President, I understand what the proponents of these motions are seeking to do. They are seeking to eliminate dilatory amendments, and that is certainly their prerogative. But let me make this point: What is involved here is the question of whether at any time under any circumstances ever the Presiding Officer of the Senate, who is usually a Senator who has one position or another on an ssue, should be able to make a ruling from which the Senate itself cannot decide.
This ruling of the Chair says that on its face an amendment is not in order. I do not know what appears on the face of this amendment. I do not have them before me. Nor do I have before me in an orderly fashion the documents or the instruments to which the amendment pertains.
So the question of fact, first, must be determined whether or not on its face an amendment is out of order. The Presiding Officer would be in the position of ruling on that question of fact from which there would be no appeal. And it is conceivable that that finding of fact could be erroneous, but if it were there would be no appeal from it by any Member of the Senate.
So what we are talking about is a precedent that has the potential for putting arbitrary power in the hands of the temporary occupant of the Chair, power from which the whole Senate could not appeal if this precedent is established and sustained.
The precedent has already been established by an earlier ruling of the Chair today, and I sought to have a test case made so that the Senate as a whole could decide whether that should be the precedent. That is left behind by this debate. So I provoked this test. I asked for it. If that is what the Senate wants to decide, that is the Senate's prerogative. But I have seen these precedents of the past built upon so that I can foresee a time when if this precedent is established a Presiding Officer might assert this authority whether or not an amendment on its face is in order.
The Senate may wish, as I say, to establish this precedent. I will oppose it The distinguished Senator from New Mexico said he would oppose it. And cannot believe that a majority of this Senate upon reflection would not agree with us.
Mr. ABOUREZK. Mr. President, will the Senator yield 30 seconds?
Mr. MUSKIE. I yield 30 seconds to my good friend.
Mr. ABOUREZK. I have two additionalpoints to make in support of Senator MUSKIE's argument.
First of all, what Senator DANFORTH has sought to do is to change the rules of the Senate by majority vote instead of a two-thirds vote as the rules themselves require, because anytime a Senator makes a point of order and the Chair agrees with him and we vote on that as we are going to do it takes 51 percent of the Senate to decide that. The rules say that when we change the rules we do it with two-thirds vote.
The PRESIDING OFFICER. The Senator's time has expired.
Mr. ABOUREZK. May I have 30 additional seconds?
Mr. MUSKIE. I yield 30 seconds to the Senator.
Mr. ABOUREZK. The second point is that if the Senate wants to change the rules that is fine and dandy. I may even vote to support a change in rules if it is done during the regular procedure. But if we are going to change the rules for JIM ABOUREZK, HOWARD METZENBAUM, or ED MUSKIE, we better change them for everyone else in the Chamber, and do not single out one or two or three Senators to do it for.
I thank the Senator.
The PRESIDING OFFICER. The 4 minutes of the Senator from Maine have expired.
Mr. MUSKIE. I reserve the remainder of my time.
The PRESIDING OFFICER. The Senator from Missouri.
Mr. DANFORTH. Mr. President, this is really a very narrow question.
The question is whether an appeal from the ruling of the Chair that an amendment is out of order and is on its face dilatory will be taken.
This only applies after cloture is invoked. It has no relation whatever to the normal situation in the Senate, and the issue is whether when an amendment is challenged on a point of order and the Chair rules that it is not in order, then an appeal from that can be dilatory.
Let me give the kind of situation that is involved here. Amendment No. 1272, which is still at the desk, provides as follows: On page — and then there is a blank with a comma — line — and then there is a blank and a comma — insert the following: And there is nothing else that is printed on the page.
It is my position that this amendment is clearly out of order and that the Chair can rule that this amendment is out of order on its face.
There is no point in raising the point of order if by the very fact of raising the point of order on a matter such as this would then trigger a rollcall vote on an issue which is clear on its face when the Chair is being appealed.
Mr. ABOUREZK. Mr. President, will the Senator yield for a question ?
Mr. DANFORTH. No.
Mr. ABOUREZK. Has that amend ment been called up?
Mr. DANFORTH. No; I am not going to yield. The Senator had plenty of time.
Mr. ABOUREZK. Has that amendment been called up is the only question. It has not been.
Mr. McCLURE. Regular order.
Mr. DANFORTH. That is, in fact, the question. As a matter of fact, in courts there are certain matters that a court can determine when in litigation it is just clear on its face that certain matters are out of order.
Courts could dismiss lawsuits on motion under these circumstances. So, really, the question is, when it is absolutely clear on its face that the amendment is clearly not in order, it would seem to me, then, than an appeal from the decision of the Chair that it is not in order is itself simply a dilatory delaying tactic, and that such appeal should not be permitted.
I reserve the remainder of my time.
Mr. MUSKIE. Mr. President, do I have any time remaining?
The PRESIDING OFFICER. The Senator has 30 seconds.
Mr. MUSKIE. Mr. President, there is a rule on the books that there should not be legislation on an appropriation bill. Yet time and again this Senate approves legislation on appropriation bills deliberately, openly, and in violence to the rule, because the Senate reserves the right to rule finally.
The question of whether an amendment on its face is out of order may be obvious in one case and not another.
The PRESIDING OFFICER. The Senator's 30 seconds have expired.
Mr. MUSKIE. And it is the other cases I am worried about.
Mr. DANFORTH. I yield back the remainder of my time, and call for a vote.
The PRESIDING OFFICER. The question is, is the point of order well taken? The yeas and nays have been ordered, and the clerk will call theroll.