October 3, 1977
Page 31916
Mr. ROBERT C. BYRD. Mr. President, amendment No. 1226 is an amendment to the bill. Inasmuch as it is an amendment to the bill, and in view of the fact this is the 13th day on which the Senate has been debating the bill, there has been ample time for the calling up of perfecting amendments to the bill. Any amendment offered to the bill, even if adopted, would be moot by virtue of the fact that cloture goes to 862 and not to the bill. Now once 862, the substitute, is adopted, then there can be no more amendments offered to the bill.
If, for some reason, amendment No. 862 were defeated or rejected, then there would be no cloture on the bill, and Senators could write any amendments they wished to offer at that point.
But under the recent circumstance in which cloture goes to the substitute and not to the bill and the final action will be on adopting the substitute, if it is adopted, no amendment to the bill is in order at that point. Any perfecting amendments that will have been adopted to the bill prior to that point will be moot.
I make the point that this is a dilatory amendment. Furthermore, Mr. President, I make the point that when the Senate is operating under cloture the Chair is required to take the initiative under rule XXII to rule out of order all amendments which are dilatory or which on their face are out of order. I make that point.
Mr. MUSKIE. Mr. President, will the Senator from West Virginia yield for a question?
Mr. ABOUREZK addressed the Chair.
The PRESIDING OFFICER. A point of order is not debatable.
Mr. ABOUREZK. Mr. President I ask unanimous consent that 10 minutes be set aside to debate this point of order. There is an extremely crucial point of order.
The PRESIDING OFFICER. Is there objection?
Mr. ROBERT C. BYRD. Mr. President, I object to that, but I will be willing to debate. The Senator has time.
Mr. ABOUREZK. It is not debatable. It takes unanimous consent.
Mr. ROBERT C. BYRD. Mr. President, I ask unanimous consent that the point of order be debatable for 5 minutes.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from South Dakota is recognized.
Mr. ABOUREZK. Mr. President, I yield myself 2 minutes to make these two points against the double point of order that the distinguished majority leader is making.
His claim is that any amendment to the bill would be rendered moot in the event the substitute is agreed to. That is taken care of merely by the statement that the substitute has not been acted upon. The Chair cannot presume to say that the substitute will be adopted, thereby making any amendments to the bill moot.
Second, these amendments are offered to the bill. They are drafted properly and there is no way that the majority leader, or anyone else, can say that an amendment on its face is dilatory. I would suggest, as I did the other day, that any effort to change the entire rules of the Senate during the heat of a debate such as this on a majority vote will go contrary to those who might even want to support it at this time and they will live to regret it at a later date.
I reserve the remainder of my time.
Mr. ROBERT C. BYRD. Mr. President, I will repeat the point of order.
Mr. President, I make the point of order that when the Senate is operating under cloture, the Chair is required to take the initiative under rule XXII to rule out of order all amendments which are dilatory or which on their face are out of order.
Mr. MUSKIE. Mr. President, will the majority leader yield for a question?
Mr. ROBERT C. BYRD. Yes.
Mr. MUSKIE. The other day the Senate voted on the question whether or not an appeal from the ruling of the Chair was itself dilatory. The point that the majority leader put is that the Chair should take the initiative to rule as dilatory amendments which on their face are dilatory. I remind my colleagues that we at our desks here cannot know in all cases at the moment that the Chair makes such a ruling whether or not in fact an amendment on its face is dilatory. That is the first question which concerns me. There is no way for me to run down to the desk, as one Senator, to look at amendments to judge for myself whether or not the Chair is ruling correctly on a statement of fact.
Second, evaluations of the amendments may result in different conclusions as to whether amendments on their face are dilatory.
The third point that concerns me is whether or not if the Chair would act pursuant to the majority leader's suggestion, is the majority leader seeking to reverse the decision that the Senate as a whole made the other day on the question of whether appeals from such rulings are dilatory?
Mr. BAKER. Mr. President, will the Senator yield to me for a moment?
Mr. ROBERT C. BYRD. I yield.
Mr. BAKER. Mr. President, I say two things. By the way, I support this point of order.
The request, as I understood it, as was made by the majority leader, was not that amendments might be dilatory on their face, but would be dilatory or which on their face are out of order.
Mr. ROBERT C. BYRD. That is right.
Mr. BAKER. The second point I would suggest is nothing in the request, as I understood the majority leader to make it, dealt in any way with the right of any Member to appeal from the ruling of the Chair, which is a point of grave importance to everyone.
Mr. MUSKIE. I want that to be very clear so if the Chair should rule on the point of order favorable to the distinguished majority leader that that would not be interpreted as reversing the action the Senate took on Saturday with respect to that last point.
Mr. LONG. Mr. President, will the Senator yield?
Mr. STEVENS. Mr. President, will the Senator yield for one point?
Mr. ROBERT C. BYRD. I yield.
Mr. STEVENS. Mr. President, so the Senator from Maine will see this as I understand it, when we in cloture voted on an amendment, an amendment offered to the bill before the amendment that is subject to cloture is voted upon is dilatory because if the amendment that is subject to cloture is adopted, in this instance, the bill is wiped out. If it is not adopted, the amendments to the bill are before the Senate and not under cloture. Therefore, if the Senate is to get to the point it wants to get to, and that is to vote on the Jackson amendment, any amendment to the bill is dilatory for that action. We are not killing those amendments. They are still on the desk. They can be voted upon should we get tothe point that the Jackson amendment is defeated and the bill subject to amendment is before the Senate.
Mr. LONG addressed the Chair.
Mr. ABOUREZK. Mr. President, will the Senator yield?
Mr. ROBERT C. BYRD. I yield to the Senator from Louisiana. Of course, I can only yield for a question.
The PRESIDING OFFICER. The Senator from. West Virginia.
Mr. ROBERT C. BYRD. I yield the floor for a moment.
Mr. ABOUREZK addressed the Chair.
Mr. LONG. Mr. President, is not this true, that any Senator at any time can go down to the desk, and he can show his amendment to the Parliamentarian and ask the Parliamentarian whether in the opinion of the Parliamentarian that amendment appears to be in order or whether it appears to be dilatory? And 99 times out of 100 the Chair is going to rule the same way the Parliamentarian had advised him. So is it not a fact that any Senator who wants to amend a bill in any particular way, even before cloture, can go to the Parliamentarian and show him his amendment and say, "Here is the sort of problem I have, and can you advise me whether this amendment would be in order, can you advise me whether it would be germane?" Is it not a fact that that is what Senators who have been around here long enough to know the rules do anyway?
Mr. ROBERT C. BYRD. Yes.
Mr. SARBANES addressed the Chair.
The VICE PRESIDENT. The Chair has recognized the Senator from West Virginia.
Mr. ROBERT C. BYRD. Let me see if we can clarify what we have before the Senate now. To begin with rule XXII says no dilatory motion or dilatory amendment or amendment not germane shall be in order.
What I am asking the Chair to do by making this point of order is this: When the Senate is operating under cloture, the Chair is required to enforce this rule. The Chair is required to take the initiative to enforce this rule.
Therefore, he is required to take the initiative under rule XXII to rule out of order all amendments which are dilatory or which on their face are out of order.
Let us take, for example, an amendment that amends the bill at more than one place. On its face that amendment is out of order.
Let us take an amendment not germane on its face. On its face that amendment is not in order because the rule says no amendment not germane shall be in order.
And the right to appeal, may I say to the distinguished Senator from Maine; is not touched in this point of order, Senators may still appeal.
Mr. SARBANES. Mr. President, will the majority leader yield?
Mr. ABOUREZK and Mr. MUSKIE addressed the Chair.
Mr. ROBERT C. BYRD. Inasmuch as I addressed the Senator from Maine, I yield to him first.
Mr. MUSKIE. May I ask a question for clarification?
Mr. ROBERT C. BYRD Yes.
Mr. MUSKIE. The Senator's suggestion is that the Chair should take the initiative—
Mr. ROBERT C. BYRD. Yes.
Mr. MUSKIE. That means — I wish to know at what point that initiative is to be exercised — after the amendment is called up, or while the amendments are at the desk before they are called up and before the Senate?
Mr. ROBERT C. BYRD. No.
Mr. MUSKIE. I assume the Senator means after they are called up.
Mr. ROBERT C. BYRD. Not while they are just at the desk. The Senator from South Dakota called up an amendment. At that point, the point of order that I am making would require the Chair to rule that amendment out of order, if indeed it is to he bill.
Mr. MUSKIE. I understand the Senator's point.