The Senate as Protector of Minority Rights
Columbia University Professor Lindsay Rogers, 1926
Columbia University professor Lindsay Rogers wrote The American Senate at a time of intense controversy over the filibuster. This issue pervades his book, which he jokingly explained was composed with “complete partiality and a bad temper.” In March 1917, facing a war emergency, President Woodrow Wilson had issued his immortal blast against the exercise of that tradition by filibustering senators. “The Senate of the United States is the only legislative body in the world which cannot act when its majority is ready for action. A little group of willful men, representing no opinion but their own, have rendered the great Government of the United States helpless and contemptible.” Four days later, the Senate yielded to the force of events and added a cloture provision to its Rule 22. This change permitted two-thirds of the senators present and voting to close debate on a pending measure, with each senator given the option of speaking on that measure for up to one hour, but it failed to satisfy those who aimed to close off debate by a simple-majority vote. From 1917 until The American Senate appeared in 1926, the Senate used Rule 22 to shut off debate on only two occasions. The cloture rule’s infrequent use strengthened Rogers’ confidence that the tradition of unlimited debate remained firmly in place, except in times of dire national emergency.
Lindsay Rogers wrote like a first-rate journalist and thought like an eminent political scientist. Born in Baltimore in 1891, he received his bachelor’s degree in 1912 from Johns Hopkins University. He then worked as a newspaper reporter while studying for a Hopkins political science doctorate. As a journalist, Rogers covered the arrival of the Carpathia bearing survivors of the Titanic disaster and he described William Jennings Bryan’s activities at the 1912 Democratic National Convention. By 1916, the journalist had earned a Johns Hopkins Ph.D. and a University of Maryland LL.B. He taught at the University of Virginia from 1915 to 1920 and lectured for a year at Harvard University. In 1920 Rogers moved to Columbia University, where he taught in the Department of Public Law and Jurisprudence for the next four decades. For most of his tenure at that university, he also served as associate editor of The Political Science Quarterly.
To expand his base of governmental experience, Rogers took time away from the classroom to serve on various boards and commissions and traveled extensively overseas to study parliaments and international administrative bodies. At the start of the New Deal, he won appointment as deputy administrator of the National Recovery Administration. Later, during World War II, Rogers served as senior assistant director general of the International Labor Office. Between 1916 and 1949, he published five books and wrote widely for newspapers, magazines, and scholarly journals. In the 1950s he regularly contributed editorials, book reviews, and feature articles to the New York Times. Lindsay Rogers died in 1970.
Rogers’ interest in the Senate grew from his studies at Johns Hopkins and his first book on Congress’ use of its postal power. In 1923 he observed that of all governmental institutions, only the Senate was capable of conducting serious investigations into the scandals that were beginning to break around Warren Harding’s presidential administration. Unlike the House of Representatives, where leaders of the Republican majority had the power to block embarrassing investigations of their party’s presidential administration, leaders of the Senate’s Republican majority enjoyed no such authority because the Senate required a super-majority of two-thirds to cut off a filibuster. They knew, Rogers wrote, that “Senator Thomas J. Walsh of Montana and other Democrats could hold up important business [through the filibuster]; hence they had to consent to the thoroughgoing inquiry that was demanded.” He then asked, rhetorically, whether the threatened filibuster—despite its delay of pressing legislative proceedings—was in the public interest. His answer: “It is sufficient to remark that three out of ten cabinet members were permitted or pressed to resign, and that there were several indictments and two suicides.”
The issue gained additional public attention in March 1925, when incoming vice president Charles Dawes took advantage of the traditionally ceremonial vice-presidential inauguration in the Senate Chamber to deliver a blistering attack on a small band of progressive Republican senators who had been filibustering end-of-session legislation. Dawes urged the Senate to revise Rule 22 to allow for majority cloture. The existing rule, he thundered, “at times enables Senators to consume in oratory those last precious minutes of a session needed for momentous decisions,” thereby placing great power in the hands of a few senators. Unless Rule 22 were liberalized, it would “lessen the effectiveness, prestige, and dignity of the United States Senate.” Dawes’ unexpected diatribe infuriated senators of all philosophical leanings, who believed that the chamber’s rules were none of the vice president’s business.
In his 1926 book, The American Senate, Rogers fundamentally disagrees with Dawes, stating...
The American Senate
The undemocratic, usurping Senate is the indispensable check and balance in the American system, and only complete freedom of debate permits it to play this role. . . . Adopt [majority cloture] in the Senate, and the character of the American Government will be profoundly changed. . . .
. . . The Senate—and this is a tremendous factor in the greater power of the upper house—by reason of its broader basis of representation can take a broader view. This is at times venal and parochial in respect of appointments [nominations]; it is frequently capricious and not national in respect of treaties, but it at least relates to a wider area than a congressional district; although, strange to say, on foreign questions, . . . the House is much less particularistic than the Senate. . . .
. . . The upper house of the American Congress enjoys freedom of debate, or, as the critics would say, unrestrained garrulity. Almost alone among legislative assemblies of the world it refuses to limit discussion and apply closure; its rules safeguard a free and equal right of amendment. Excessive loquacity as the weapon of a minority can, on occasion, be more lethal in the Senate than elsewhere, for it is a gun that cannot always be spiked by the endurance of the majority. . . .
. . . Unrestricted debate in the Senate is the only check upon presidential and party autocracy. The devices that the framers of the Constitution so meticulously set up would be ineffective without the safeguard of senatorial minority action. . . .
My argument, then, briefly put, is that only the Senate can counteract the effects of presidential publicity which lures the country into accepting certain fixed ideas of the executive, and which vouchsafes only favorable information concerning administrative activities. . . .
The important point, however, is that a continuous duel between President and Congress cannot be dispensed with except at the price of hodgepodge legislation and bureaucratic security; and without the Senate the executive would have no antagonist. He needs that antagonist whether, like Mr. [Woodrow] Wilson, he attempts to be a responsible leader, or like Mr. [Warren] Harding, he leaves Congress to its own devices; and particularly does he need an antagonist when he refuses to commit himself openly and clearly on public questions and pours out a steady stream of self-advertisement. Hence the importance of the Senate—an importance which [majority cloture] would greatly lessen and perhaps completely extinguish. . . .
But it is as a critic of the executive that the Senate does its most notable work. Here complete freedom of debate and the absence of [majority cloture] except as a real emergency measure are more indispensable than in respect of legislation. Criticisms of the Senate because time is wasted, irrelevant and extreme talk is indulged in, and logrolling is prevalent, overlook the fact that scrutiny of administration—a normal function of legislative assemblies—can only in the United States be scrutiny by the Senate. Fixed terms and executive irresponsibility make the need for this scrutiny more urgent. 1
Today, we remember Rogers’ The American Senate principally for its arguments against cloture by simple majority. His intention, however, was to present a book-length essay—in 250 pages—on the Senate in its institutional entirety. After an opening chapter on the Constitution’s framers’ plans for the Senate, Rogers adopted a topical structure with chapters on the Senate’s executive and legislative functions, its investigating role, its ability to serve as a check on presidential “propaganda,” and as a “forum of the nation and critic of the executive.”
The American Senate is about more—and less—than the American Senate. It is neither tightly structured nor carefully disciplined. Rogers’ frequent and extended excursions into Senate-related current events and comparisons with other legislative bodies suggest a book quickly drafted, with an undercurrent of good humor, a splash of irony, but little “bad temper.” Several of his reform suggestions—delegation of investigations and sharing treaty powers with the House—now seem naive and unrealistic. Yet, aside from its frequent digressions, the book’s remaining text appears as fresh and vital today as it did eight decades ago.
The New York Times, November 28, 1970.
- Baker, Richard A. “Twentieth Century Senate Reform: Three Views from the Outside.” In The Contentious Senate: Partisanship, Ideology, and the Myth of Cool Judgment, by Colton C. Campbell and Nicol C. Rae. Lanham, MD: Rowman & Littlefield, 2001.
1. Lindsay Rogers, The American Senate (New York: Knopf, 1926), ix, 102, 161, 164, 241, 244-5, 256.