October 3, 1977
Page 31929
Mr. SARBANES. Mr. President, the judgment as to whether an amendment is germane or is dilatory is a judgment which the Chair must first make. Under the precedent adopted earlier today, the Chair has been accorded the right to make that judgment initially of its own initiative.
But to go beyond that and to say the Chair's ruling cannot be appealed and that the Members of the Senate cannot pass upon it is to establish a procedure here which I suggest to each Member of the Senate they ought to think about.
Several Senators addressed the Chair.
Mr. SARBANES. Now, there exists a rule that, as I understand it, if a Senator seeking the yeas and nays does not get sufficient seconds, then he cannot get the yeas and nays. So the possibility for a semi-steamroller exists simply by providing with a series of voice votes if there are not sufficient seconds to the requests for the yeas and nays.
But the procedure just being followed here, an amendment being called up, the Chair ruling the amendment out of order and the Chair then permitting no appeals from its ruling, is a process fraught with danger.
Mr. ROBERT C. BYRD. Mr. President, appeal comes too late.
SEVERAL SENATORS. Regular order, Mr. President.
The VICE PRESIDENT. The Chair recognizes the Senator from Maryland.
Mr. SARBANES. I yield to the Senator from Maine for a question.
Mr. MUSKIE. A further point, may I say to the Senator, when the majority leader put this point of order earlier, I asked him whether or not it would have the effect of denying the right of appeal which a vote of the Senate established just last Saturday. The majority leader assured me that it would not.
Now, the majority leader seeks to substitute that right of an individual Senator to appeal a single point of order or a single amendment by an en bloc kind of an appeal.
Mr. President, this is just what I feared last Saturday, when I raised this whole question of the right of appeal.
I take it that the majority leader has the votes now to enforce any change in the filibuster rule that he has devised over the weekend. We can count on this side of the aisle as well as on that side, but I hope that before you move irrevocably down this line, you begin to look at the consequences. I hope, further, that if that is what you are about — I am talking about the majority, who are now in the process of amending rule XXII — you do it totally, that you do it so thoroughly that when somebody on that side of the aisle, or any side of an issue in the future, seeks to filibuster, they will be foreclosed because of your foresight and your wisdom. I hope that happens.
I have been amused by those who over the years I have been in the Senate have fought cloture, who now seek to advise us what we intended when we adopted the cloture rule. The cloture rule was not made tighter not because we did not want to, but because we had to compromise our objective to accommodate those who wanted to reserve the right to unlimited debate. Now many of those who wanted that right seek to deny it to somebody else.
My whole posture in this has been not that I am for filibusters but that I do not like to see the advantage of the rules denied to a group that, at its peak, commanded 46 votes, maybe more now, on an issue of paramount national importance, by changing the rule in the middle of the game.
You cannot tell me that what is going on now is a simple application of the rule. Over and over again, the Chair is putting the question. There are no precedents, and the Chair wants the Senate to establish this ab initio — from the beginning — a new order of things, a change in the rules.
That is what you are talking about, and you are doing it by commanding a majority who is your majority only on this issue. I do not think that is the way to do it.
I know how frustrating filibusters are. I have been against more of them than many of those who are against this one, and I do not really like this way of deciding this one.
I hope that out of this — and this is really what I hope — and out of the other recent filibusters we have had, we will finally get a cloture rule that will work but that will apply equitably to everybody, not to a temporary majority on a particular issue.
You have the votes. Go ahead with your amendments. Change the rule, and then get your vote on the issue.