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 from 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). For a more complete non-pdf version of the relevant Congressional Record, please see my original post (of which this diary is an abbreviated version).

—– —– —–

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

—– —– —–

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

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.

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.

[...]

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.

[...]

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. 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. 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.

[...]

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.

[...]

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. [...] 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.

[...]

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.

[...]

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. 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. 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. [...] 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?

[...] 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. 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. 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 (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.

[...]

Mr. LONG. [...] 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 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.

[...]

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]

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. SIMPSON. [...] 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…