errors which would otherwise have been disclosed at an earlier time are not discerned until it is difficult to rectify them. Yet strangely enough, the ten states, which by constitutional mandate prescribe but one reading in full, specify that it shall be the last.16

THE COMMITTEE OF THE WHOLE

At one time the committee of the whole, which furnished such excellent facilities for discussion, was a part of the normal procedure, but the general spirit of speeding up today pervading legislative halls has worked for its downfall. It is not recognized by the rules of the New York Assembly, while in the West Virginia Senate there have been but two committees of the whole in the last twenty years, and in Massachusetts but one in the last twenty-five years.17 The rule of the Pennsylvania House requiring the committee of the whole on all measures is invariably suspended by unanimous consent. With monotonous regularity the journal records, "the rule requiring bills to be considered in the committee of the whole being in this case dispensed with." Elsewhere, however, the rules generally provide merely that the committee of the whole may be ordered upon a majority vote, a privilege, it may be repeated, availed of but little. Where its use still survives the procedure is for all bills favorably reported by committees to go on the calendar of general orders and for the house to go into the committee of the whole automatically when this order is reached in the daily program. Kansas, Michigan, Montana, Nebraska and Oklahoma may be mentioned as making general use of this form of organization.

The advantages of the committee of the whole are such as to have started a movement for a general return to its employment. In it the restrictions of formal debate are thrown aside, and although the personnel of the members does not differ from that of the house, they come to it in a different frame of mind. Its purpose is frank discussion and deliberation. The committee of the whole may hold a public hearing; as for example, at the hearings in 1915 by the Illinois Senate upon the bill to abolish capital punishment

16 Index-Digest, State Constitutions, p. 842.

17 Statements in reply to the Nebraska Questionnaire. A motion to go into committee of the whole in order to hear testimony concerning a proposed railroad measure was defeated by an overwhelming vote. Massachusetts House Journal 1915, p. 1212.

the Governor and others appeared, addressed the Senate, and were in turn questioned by members.18 In this connection it may be noted that Wisconsin, whose rules permit the committee of the whole upon a demand of one-sixth, is taking greater and greater advantage of this more or less informal organization by summoning administrative officials before it. Such procedure is also valuable in the consideration of money bills, which should be taken up item by item. The Illinois House in 1915 adopted a practice frequently followed in Kansas and Oklahoma, by which bills at introduction may be referred by the speaker directly to the committee of the whole; the idea being that upon some bills it would be well if members were uninfluenced by the action of a committee. The rule in Illinois has been of no effect because the privilege of reserving bills for consideration by the whole house has been rarely exercised.

The possibility of abuse of the committee of the whole, which has done much to bring it into disfavor, lies in the absence of any record of proceedings therein and in the disposition of the house to sanction, without a roll call, the adoption of amendments reported therefrom. The general parliamentary principle that the ayes and noes cannot be demanded in this committee is reënforced by specific rule in many states. In a few cases, however, some record is preserved. In Maine, Illinois and Pennsylvania a report of debates appears in the stenographic record of all proceedings, although there is no way of getting the members' votes on record, and in none of these is a committee of the whole more than a very occasional occurrence. A small fraction of the committee of the whole may demand a roll call in Kansas, Kentucky and Nebraska but common practice neglects the call for the ayes and noes.19 Louisiana seems to have been the first to require a complete record of action of this committee to be entered on the journal as are other proceedings of the house,20 and the Arizona Senate alone has followed her example.21 Where the constitution requires three read

18 Illinois Senate Debates, 1915, pp. 442 et seq.

19 In Kansas and Kentucky twenty-five may demand a roll call, and in Nebraska ten.

20 House Rule 67. An examination of the journals of Louisiana reveals that this is usually observed.

21 Statement of the late Senator Cunniff of Arizona.

ings of bills, consideration in committee of the whole is counted as the second reading, although this was not true formerly.22

CONTROL OVER DEBATE-OBSTRUCTION

Control over debate is always possible for the lower house through the simple expedient of the previous question. The usual practice of the upper houses likewise permits debate to be closed by this means, although certain restrictions may be enforced, such as the condition that more than one member must second the motion.23 In Connecticut, Massachusetts, New York and Vermont the previous question in the Senate is not in order. This does not mean, however, that cloture may not prevail. On the contrary, in the Massachusetts Senate debate may be closed under the rules one hour after the adoption of a motion to that effect, and on this motion not more than ten minutes can be consumed in debate.24 In the New York Senate the president must recognize a member who wishes to move to close debate after the measure has been before the house for six hours.25 This rule was adopted after experience had persuaded the members to surrender their senatorial privilege of unlimited debate, but immediately was rendered ineffective through a ruling by an unsympathetic president that the time for debate might be extended by offering a substitute measure, which constituted a new and independent proposition.26 To escape this impasse the rules committee began to report special limitations upon debate, and cloture in the Senate became an accepted fact.27 In 1915, following a series of obstructive tactics by the minority, a resolution was passed to extend throughout the session which, although not authorizing the previous question, accomplishes the same result. A motion to close debate could be moved at any

22 Sustained in In re Reading of Bill, 1 Colo. 641.

23 In the senates of Virginia and Wyoming three are necessary to demand the previous question. In Pennsylvania, four, and in Delaware, five.

26 S. J. 1894, pp. 191, 196 et seq. The chair was able to defeat the will of the majority by refusing to consider an appeal from the decision on the ground that no question of order was involved.

27 S. J. 1897, p. 1326. This is believed to be the first instance. limited to two hours.

Debate was

time, and when carried, shut off debate immediately; members were allowed but two minutes on roll call to explain their votes.28

The Georgia Senate while permitting the previous question has placed unusual restrictions in its way by requiring a majority to sustain the call for putting the motion, a motion to adjourn or to lay on the table being in order before the question on closing debate is taken, and by further prescribing that no senator before yielding the floor shall submit any motion the effect of which shall be to prevent further debate.29 Thus the custom, widely practiced in the Illinois Senate, of making a motion and in the same breath moving the previous question upon it is impossible. In the Illinois Senate it is not unusual for one to move that a bill be taken up on third reading and final passage out of its order and immediately to move the previous question. This objectionable procedure prevents any debate whatever upon the measure since the earlier stages were passed perfunctorily, all discussion having been postponed until third reading. It will be seen from the foregoing that the dignity of the upper houses of our legislatures no longer demands freedom of unlimited discussion and that the means of checking long-winded tactics are universally at hand.30

28 S. J. 1915, pp. 933, 934. Not even questions of personal privilege were in order after the motion to close was carried. P. 1160.

29 Senate Rules 59, 122.

30 The development of the previous question as a means of suppressing debate and bringing the house to an immediate vote upon the matter at hand was thoroughly reviewed in a discussion in the Fourteenth Congress (January 19, 1816) upon a motion to expunge the rule which permitted it to be invoked. William Gaston pointed out that it was originally used in Parliament to postpone the putting of the question when a decision at the time would be embarassing or injurious, owing to the delicate nature of the subject. If the previous question was carried, discussion of the main question was suspended and debate turned to the propriety of taking a vote on the main proposition. "Its purpose was not to suppress unpleasant discussion but unpleasant decision." The question then put was, "Shall the main question be now put?" (5 Hinds 5443, and for Parliament May, p. 269.) Today it is stated negatively in Parliament, viz., “That the question be not now put," because of the similarity of the old form to the cloture motion now in use. (May, p. 269.) Unlike the experience of American legislatures, development of cloture in Parliament did not proceed from an abortive use of the previous question, where such motion still retains its early purpose.

The previous question was first invoked to shut off debate in Congress on December 15, 1807, on which occasion, however, the speaker's decision, that the question decided in the affirmative precluded further discussion, was overruled

Obstruction in the state legislatures is further made difficult by the general adoption of time limits upon speeches, which are either incorporated in the rules, as in the Illinois Senate and House and the New York Assembly, or are more commonly enforced by a resolution passed about the middle of the session. In this manner Massachusetts has placed the limit at ten minutes, Kansas at fifteen, and the New York Senate at five.31 Obstruction has but rarely presented a troublesome problem in the state legislatures since. both majority and minority are anxious rather to speed up legislation than to impede it. Vigorous use of the previous question plus the operation at times of a steering committee with power to restrict incidental motions has been generally effective against efforts of the minority to impose its will upon the majority. Following congressional practice, speakers refuse to consider dilatory motions, even going so far as to deprive a member of the floor if he is not using his time in good faith.32

by a vote of 103 to 14, which judgment was affirmed later on December 1, 1809, by a vote of 101 to 18. But on February 27, 1811, the House reversed itself during the debate on the Non-Intercourse act by ruling that the previous question did shut off debate. This action was taken during the last days of the session when time was precious. It is clear that the previous question was not called in through misunderstanding as to its accepted use, the speaker's decision in accordance with the precedents established on the two earlier occasions being overruled, but because it seemed to furnish a convenient instrument of cloture when one was sadly needed. In England, however, the question of cloture was fought out on its own basis, a distinct procedure being constructed for the purpose. (See Redlich, vol. 1, pp. 137 et seq. and vol. II, pp. 227 et seq. For a complete history of the previous question in Congress see 5 Hinds, ch. CXX.)

Cloture was not admitted in Congress without a severe struggle, and although no precedent could be found in Parliament, one at least existed in the rule of Pennsylvania Colonial Assembly (Rule XVII in 1776), "If at any time a debate prove tedious and four members demand that the matter be put to vote, speaker shall not refuse it." McConachie, "Congressional Committees," pp. 23, 24, states that this rule first occurs in 1703 and that a rule authorizing the speaker to stop superfluous and tedious debates appeared as early as 1682.

31 In Illinois Senate and New York Assembly under the rules a member may speak fifteen minutes; in the Illinois House thirty minutes, and in the Washington House only ten minutes. For resolutions limiting debate see Massachusetts House Journal, 1916, p. 198; Kansas House Journal, 1915, p. 28; New YorkSenate Journal, 1915, p. 1589.

32 Michigan House Journal, 1901, p. 1234. The old procedure of demanding roll calls on amendments to the journal, sometimes employed before Speaker Reed's ruling on dilatory motions, would be quickly suppressed today.