The MacNeil/Lehrer Report; School Prayer

ROBERT MacNEIL: Good evening. Senate conservatives suffered another defeat today when they failed for the third time to stop a liberal filibuster against school legislation. It was the eighth vote in a row in which efforts to push the conservative social agenda have been rejected by the Senate. Republican Majority Leader Howard Baker said he would give the conservatives one more chance to kill the filibuster tomorrow. But even the supporters of school prayer were conceding defeat. Louisiana Democrat Bennett Johnston said it's now time to face up to the fact that it's not going anywhere. The conservatives, led by Jesse Helms of North Carolina, attached the school prayer issue to a bill raising the federal debt ceiling. By filibustering, the liberals had prevented passage of that bill, which must go through by October 1st to keep the federal government solvent. Senator Baker said that after a fourth and final attempt to kill the filibuster he would strip the debt ceiling bill of all amendments. That would kill the school prayer issue for this Congress. Tonight, why has the social agenda failed, and where will it go next? Jim?

JIM LEHRER: Robin, it wasn't supposed to be this way. With a Republican President and a Republican Senate, each the most conservative in decades, the new right's social agenda was expected to prevail, particularly since new right money and votes contributed heavily to the 1980 election victories of Mr. Reagan and many conservative members of Congress. But on the three major issues at the top of the new right's legislative agenda, the tally sheet is all but blank. On school busing, a bill that would prohibit its use passed the Senate but is now stalled because of differences with the House version, and it's considered dead for this session of Congress. On abortion, a bill that would have overturned the 1973 Supreme Court decision legalizing abortion was tabled a week ago today by one vote in the Senate after Conservatives failed to break a liberal filibuster. And now there's school prayer, apparently destined for a similar fate. After a key vote yesterday on the prayer issue, one of the leaders of the filibuster declared, "We beat 'em. We've broken the radical right." It was the declaration of Senator Daniel Patrick Moynihan, Democrat of New York. Senator, are you saying the radical right, as you call them, are dead forever?

Sen. DANIEL PATRICK MOYNIHAN: The issues they have raised are legitimate issues, and they will go on, but the method of going about it, of stripping the Supreme Court of its right to hear cases involving the Bill of Rights, has been defeated and emphatically. I mean, it is not a conservative issue. After we beat the effort to invoke cloture this morning, Barry Goldwater moved to table the whole measure. Why? Because it fundamentally would change the Constitution. If Congress, by a majority vote, could say the Supreme Court could not take up the question of school prayer or free speech or the right to bear arms, you no longer have a system of separate and equal branches of government. Last year, the president of the American Bar Association, on behalf of the bar, addressed both committees of judiciary, and he said, we confront at this very moment the greatest constitutional crisis since the Civil War, and that is what the Senate, in my view, responded to.

LEHRER: Rather than to the specific issues of abortion and school prayer?

Sen. MOYNIHAN: Yes, sir. Persons who are very much in favor of school prayer -- and there are many of them -- who voted nonetheless to preserve the Constitution.

LEHRER: Senator, are you at all troubled by yours and other's use of a filibuster to accomplish this?

Sen. MOYNIHAN: No, sir. We have played by the rules. We have those rights under the rules. The Senate was intended to be a deliberative body and a careful body, and not a place whereby a majority of one you change the balance of powers within the American government. We were fighting, sir, if I can -- I kept it in my hand for three weeks now -- the Constitution. And that is sacred. And that -- it goes beyond any issues of the moment.

LEHRER: Well, as you know, Senator, liberals used to complain when the conservatives would use the filibuster and accuse the conservatives of thwarting the majority in the Senate. What's changed? The issue is changed?

Sen. MOYNIHAN: What has changed -- this is not a liberal, conservative or moderate issue. This is a question of do you support -- we take an oath to uphold and defend the Constitution of the United States, and we deeply believe that we would be subverting our Constitution to begin this practive of taking away from the Court the -- we have a system in our government of majority rule and minority rights. And once you took away the minority rights of the Mennonite children, of the National Rifle Association -- of whatsoever, you've changed America, you've changed our government, and for the worse.

LEHRER: Thank you. Robin?

MacNEIL: Now to one of the most consistent supporters of the new right's social agenda, Republican Senator John East of North Carolina. On each of these issues he has been at the forefront of the battle with his fellow North Carolinian, Jesse Helms. Senator East, going back to what I quoted Senator Johnston as saying a while ago, do you believe that the school prayer issue now isn't going anywhere?

Sen. JOHN EAST: Well, of course not. It's going very well, and I'm surprised to hear that all the introductory statements here suggest everything is over. If you look at the votes, the votes are a majority on our side. On the Goldwater motion to table today, it was defeated. The majority in the United States Senate support Senator Helms. The vast majority of the American people support him on this issue. The issue is not dead; it may be temporarily stalled or tangled by this unfortunate filibuster, but clearly, the filibusters are thwarting the will of the majority of the United States Senate. And I dare say, Robin, if the issue were reversed, and it were Senator Helms and myself or others who were filibustering a clear majority in the United States Senate, you would hear them screaming to the high heavens. The majority is on our side, and I think this majority will grow in the years ahead because the American people do not agree that you can so torture the reading of the United States Constitution as to forbid voluntary prayer in the classrooms of the United States. They will not buy that constitutional nonsense, and rightly so.

MacNEIL: Do you agree with Senator Moynihan that these votes were not on the merits of the issue, but on the constitutional issue of stripping courts, as he put it?

Sen. EAST: No, that's a red herring because clearly we have the power under the Constitution to set the jurisdictional parameters.He recently voted for the Voting Rights Act. It strips the power of the lower federal courts in the South to hear cases involving the Voting Rights Act. Clearly, under Article III, we have the power to set the jurisdiction of the courts of the United States -- the appellate court jurisdiction of the United States, the Supreme Court, and to effect the jurisdiction of the lower federal courts. The Congress has exercised that since the founding of the country. So what we're proposing here is nothing radical or revolutionary. To the contrary, it is they who contend we are impotent, we have no power to do anything.

MacNEIL: If that's a red herring, Senator, how do you explain the three defeats on these issues in this session?

Sen. EAST: Well, you have to keep your eye on expectations and from whence you've come. We're getting a majority vote on all of these, and as the filibusters have said, what they fear is letting it come to a floor for an honest majority vote because they would lose. Now, how do you torture a very poor posture --political posture out of a majority vote which we have been consistently getting? We're encouraged, and we think when the American people understand what it is we're talking about, it'll ultimately pay dividends in the polls, and it'll ultimately pay dividends in the voting and in elections. And eventually we will have what we need here to get the job done. We've made progress.Progress is the barometer you want to watch, not particular victories of the moment. We're now getting a majority vote; we haven't been able yet to overcome a filibuster.

MacNEIL: You're saying that you may have lost some battles but you still could win the war, is that right?

Sen. EAST: Yes.The war is still not over, and the battles are going on, and we are getting majority votes. That's progress in a democratic society.

MacNEIL: Are you disappointed in the amount of support you got from the President these last few weeks on these issues?

Sen. EAST: I think the President has been very supportive. He's made his position clear on these issues, and I quite candidly don't know what else the good man can do. He has a lot to say grace over; he's indicated how he stands. And, no, I think the President of the United States has done as much as he can here. Ultimately he can only do as much as the votes in the Senate will allow him to do, or in the House. And we just don't have enough horses yet, but we now have a majority. And that's not bad in a democratic society.

MacNEIL: Thank you, Senator. Jim?

LEHRER: It was mostly liberal Democrats leading the emotional filibuster side of the fight against Helms, East and company, but in the final analysis it was the failure of several Republicans to go along that caused the defeats. Republicans such Senator Slade Gorton of Washington State. Senator, you voted to table on both abortion and school prayer. Why sir?

Sen. SLADE GORTON: I voted to table on school prayer for some of the reasons which Senator Moynihan has already outlined. While I think it can be soberly and appropriately debated as to whether or not the Supreme Court's decisions on the separation of church and state in the broadest set of terms over the last 30 years are entirely correct or not, I think it's only appropriate to debate that subject within the concept of a constitutional amendment. I do no think it appropriate, whatever its possible constitutionality, to deal with the problem indirectly through depriving the Supreme Court of jurisdiction to hear cases which clearly arise out of the Bill of Rights. I voted against the abortion amendment last week, and of course, it was defeated by a majority of those voting, because it was neither clear nor philosophically consistent. Its only substance dealt with federal funding of abortion. Had we dealt with that issue clearly and cleanly, I would probably have voted to restrict such funding. It also, however, included in it indirect elements of Senator Helms' original proposal, which states that life begins with conception, which is of questionable constitutionality, but which I think he and his supporters should have been allowed to bring up. I would not have supported the filibuster had they dealt with that issue absolutely cleanly -- given us one issue at a time. Unfortunately, Senator Helms, when he started down this road, mixed four issues together -- the jurisdiction of the courts, school prayer, federal funding of abortion, and another abortion subject in connection with conception.And there's no way in the world that votes could have been clear and followed a clear philosophical view on those issues when they were all mixed up together. I do think, with Senator East, that the United States Senate shoud vote on these issues, but it should vote on them in the context of dealing with the Constitution, when that is the appropriate subject, and on dealing with other subjects one at a time and not all mixed together.

LEHRER: Well, what about Senator East's charge that the majority feeling in the Senate has been thwarted through this filibuster, that the majority of the Senate favors these issues, like school prayer and abortion?

Sen. GORTON: Well, we'd have to divide the issue. I agree with Senator East that a clear majority in the United States Senate favors voluntary prayer in public schools, and that that reflects a clear majority of the people of the United States as a whole. I'm not at all sure that a majority of the people of the United States as a whole want to get to that goal by stripping the Supreme Court of its jurisdiction over Bill of Rights issues. If this had come up on a straight basis that did not deal with the courts at all, I rather suspect that his side would have won. On the abortion issue, on the other hand, in connection with Senator Helms' proposal on when life begins, it's quite clear that a majority of the members of the United States Senate did not support that position, would not have voted for it on a straight up-and-down vote, and a majority of the people of the United States do not support that position, either. As a matter of fact, it's supported only by a relatively small minority.

LEHRER: Senator, what is your analysis of what this does to the new right movement, the new right agenda, as it was expected to go smoothly through the Senate and it didn't?

Sen. GORTON: Again, I think that both of the previous speakers were probably correct on that. This is not the end of the line by any means. These issues are still before the people of the United States; they will be before the next Congress of the United States. I hope that by the time the next Congress comes, however, we'll be able to deal with the issues on a much more straightforward and clean and less indirect fashion. But they are major issues in the United States of America today. They're going to be major issues tomorrow, and they're still going to be around.

LEHRER: Thank you. Robin?

MacNEIL: The social agenda has had intensive backing from new right lobbying and fundraising organizations. One of the key groups is the Conservative Caucus, a grassroots organization claiming 400,000 supporters. Its founder and national director is Howard Phillips. Mr. Phillips, do you accept Senator Moynihan's verdict? Have they broken the new right?

HOWARD PHILLIPS: Robin, what I'd like to do is challenge the presupposition of the entire argument. To assume that Republican control of the Senate is tantamount to new right or conservative control of the Senate is a very flawed assumption.But I think Senator East is quite correct in pointing out that considerable progress has been made. I've been looking over the vote on cloture. There was a turnover of 13 seats in 1980. There was a 13-seat Republican pick-up. Three of the 13 new Republican senators voted against the Helms-East position -- Senator Gorton, Senator Rudman of New Hampshire Senator Spector of Pennsylvania. The other 10 new senators, including Senator Moynihan's colleague, Senator D'Amato, voted with Senator Helms and Senator East. So I would therefore argue that we have made progress. We have done better in this Senate than we would have done in the previous Senate, and if the voters of the country will recognize that there is a tremendous gap in thinking between the nation's establishments -- the nation's elites on the one hand and the people on the other, perhaps they'll toss out some more senators this year, and give us a chance to make additional progress following the elections.

MacNEIL: Since the out party traditionally makes gains in these off-year elections, or very, very often has, would you confidently expect to come back with a Senate that is even more conservative that this one?

Mr. PHILLIPS: No, I can't predict that with any confidence.I'm concerned that the way in which the issues have been framed for the 1982 elections is not a way in which new right leaders would frame it. For example, the case has not been made to the American people as to why we need to spend more money to rebuild our defense, why we need a new strategy, why we need to restrict the power of the imperial judiciary, cut off funding to radical left-wing organizations from the federal treasury. Nonetheless, I think we owe a tremendous debt of gratitude to Senator Helms and Senator East and the others who work with them because they have sent a message to those people who were complacent after the 1980 election, or concerned at the lack of action since then -- they've sent a message that while we have made progress, there is much more that needs to be done, and there's a job to be done in the November elections.

MacNEIL: Are you personally satisfied with the amount of support the President gave these issues?

Mr. PHILLIPS: Well, I'm pleased that the President involved himself personally as he did in the right-to-life effort. I'm grateful for the personal phone calls that he made.I also appreciate the President's support for a voluntary prayer amendment. However, I do have to observe that because of the President's neutrality on the question of the right of the Senate under Article III of the Constitution to limit the jurisdiction of the courts, we may have lost some votes that otherwise would have been available to us.

MacNEIL: All right. Thank you. Jim?

LEHRER: Do you agree with that, Senator East, that the President could have helped you a little more on that issue than he did?

Sen. EAST: Well, I think, as Howie is suggesting, depending on what sort of emphasis you want to put, one could always contend someone might have helped a little bit more or a little bit less, but looking at the thing in the round, I certainly would not fault the President in the sense that he has made his position clear. He is supportive of the concept of voluntary prayer in the public schools. He is willing to let the states define their own abortion policy, and he has generally supported the thrust of it. And on that I think he deserves to be commended.

LEHRER: Senator Gorton, let me ask you. Was your arm twisted at all, directly or indirectly, by the President on this issue?

Sen. GORTON: No, the President hasn't lobbied me on this or any other such issue, and I don't think the President's lobbying on the issues with which we've been dealing for the last two weeks would have had any effect on any votes.

LEHRER: Why not?

Sen. GORTON: These votes deal with highly emotional, and, in some respects, very, very profound issues on which most members have strictly defined positions. They are not at all analogous to a veto of a spending bill which we have seen only for a few hours or so before we voted on, and which are very complex. They're not the kind of issues which presidential lobbying are going to affect particularly. I do think in this case, and this refers back to something Howard Phillips said, I think the President was right and was principled. He has taken an approach towards school prayer, which is to amend the Constitution. One can agree or disagree with him, but it's the right way to deal with the issue; the way we've been dealing with it in the last week is the wrong way.

LEHRER: Senator Moynihan, do you agree with Senator Gorton's analysis that if Senator East, Senator Helms and their folks had gone about this differently, that they might have won, particularly they would certainly have won, in Senator Gorton's position, at least, on the school prayer issue?

Sen. MOYNIHAN: Well, they might have done. Remember, you need a two-thirds vote of the Senate for a -- to send an amendment out to the states. But may I make the point about the President's neutrality that Mr. Phillips mentioned? The Attorney General certainly was not neutral on this constitutional issue. He sent a letter to both judiciary committees in May, and it reads, "Congress may not, consistent with the Constitution, make exceptions to Supreme Court jurisdiction which would intrude upon the core functions of the Supreme Court as an independent and equal branch in our system of separation of powers."

Mr. PHILLIPS: Jim, let me interrupt for a minute, if I may, and for the benefit of our viewers, just read the one sentence in the Constitution that relates to this, and take the position of Raoul Berger, the Harvard Law School professor who agrees that the Senate does have this power. It says, "In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions and under such regulations as the Congress shall make." I don't know how the language could be any more clear than that.

Sen. MOYNIHAN: Well, there has been one case in our history -- Ex parte McCardle 1868 -- and in no sense is it conclusive. But I would like to say this, that Senator East is entirely correct, as are my colleagues and friends both, that the Constitution provides a way to change the Constitution without stripping it of its fundamental responsibility to protect the rights of Americans under the Constitution.That's what has been at issue, not these other matters, which we can debate, should, and they will no doubt come back again.

LEHRER: Senator East, let me ask you, based on what Senator Moynihan, and more particularly also what Senator Gorton said, in retrospect do you think you folks went about it the wrong way, that you could have mustered the majority if you had presented it differently?

Sen. EAST: Opponents will always say that because they fear to get down to voting on the merits of the issue. As some of them have already noted, some of the opponents, they feared that we might get an up-or-down vote on this issue. Your opponents will always say that. They will always say, "Well, if you had done it just a little bit differently then we would have been willing to look at it." And, again, I think that's a red herring argument, that they simply don't want to vote on the merits of the issue. Otherwise they wouldn't filibuster; otherwise they'd let us go out and debate the merits as to whether it would be prudent or wise to take away the appellate jurisdiction of the Supreme Court or to affect the jurisdiction of the lower federal courts. We could debate that on the merits -- whether we had the power or whether it was prudent to exercise it. They fear debate on the substantive questions, and they hide behind this filibuster and these allegations that some way or other, if we gentlemen had gone about it in a different way -- when we get around to the constitutional amendment eventually, they'll be saying the same thing -- the constitutional amendment isn't worded quite right -- oh, goodness sakes, if it were worded just a little different way, then they might be inclined to support it. It's the oldest trick in the political game. You say, my golly, if the opponents had gone about it in just a little deffernet way, we might have been able to support it --

Sen. GORTON: Jim --

Sen. EAST: -- and one can see through that.

Sen. GORTON: I don't think you got an answer to your question.

Sen. EAST: Yes, he did.

Sen. GORTON: On the other hand -- on the other hand, I think that you may have somewhat misstated my views on the subject. I do not think that the position Senator East takes would have won on abortion --

LEHRER: I'm sorry. I got that wrong --

Sen. GORTON: -- in connection with the --

LEHRER: -- and school prayer, right. I'm sorry.

Sen. GORTON: -- or would have received a two-thirds vote on a constitutional amendment on abortion. I think they would have been quite close, if not successful, with a two-thirds vote on prayer in public schools, and I think that it would have been far better had the Congress been able to vote on those issues in a clean, open fashion.

LEHRER: Mr. Phillips, let me ask you. You Went through the numbers, and you said there were three Republican senators --

Mr. PHILLIPS: Three of the new ones.

LEHRER: Of the new ones. And Senator Gorton is one of them. Does the new right now feel they have a score to settle with Senator Gorton?

Mr. PHILLIPS: Well, I don't have any personal animus toward any member of the United States Senate.

LEHRER: I meant political. Political score.

Mr. PHILLIPS: Well, let me just mention -- today I received a call from a gentleman named Ken Vickers, who is with Maranatha Ministries in Seattle, Washington, who is a member of the Conservative Caucus, and who is the 4th District precinct chairman for the Republican Party in Seattle. He feels he has a score to settle with Senator Gorton in that he believes that the Senator made a commitment to him in a 45-minute discussion on September 3rd to vote for cloture on the right-to-life issue. But it's nothing personal in his regard. I do believe that in the United States Senate you have a situation where there are shifting coalitions.I agree with Senator Moynihan on tuition tax credits. On many other issues I disagree with him. The new right is a movement which is committed to policy objectives and principles, not to political parties or political personalities, and therein lies our strength.

Sen. MOYNIHAN: Jim, may I say that Slade Gorton took an oath to uphold and defend the Constitution, and that's what he did today, and this Democrat is with him.

LEHRER: Senator Gorton, you want to --

Sen. GORTON: Well, I thank both of them for their compliments. Nevertheless, this was a major issue in the election in which I ran and won in 1980 in a Republican primary. It is perfectly appropriate for people to vote for candidates for public office on the issues they think important. And people who agree as they do should in fact find candidates to vote for who are more to their liking. I don't think, under those circumstances, at least in a state like mine, that they're going to win an awful lot of elections, but they certainly aren't engaged in some kind of illicit or underground activity to go out and to try to do exactly that.

LEHRER: So they're welcome to come after you if they want to?

Sen. GORTON: You bet.

LEHRER: All right, Robin?

MacNEIL: Senator Moynihan, Jim quoted you at the beginning as saying you thought you had broken the new right. In this coming election, in which you for one are running, is the public as aroused about the so-called social issues as it was in 1980, in your view?

Sen. MOYNIHAN: Well, we're going to find out. I have a primary election in New York tomorrow, and I'm going to be on the floor of the Senate debating this issue, and we'll check around 9 o'clock and see how it comes out.

MacNEIL: What's your feeling about it, though, this year? Are these issues as hot as they were in 1980?

Sen. MOYNIHAN: Oh, clearly, the economy is so much more pressing an issue, has to be, and I think that will decide the outcomes -- not that these aren't legitimate issues that have been legitimately raised.

MacNEIL: Senator East, what's your view of how hot or prominent these issues are going to be this November?

Sen. EAST: Difficult to say, Robin. I think Senator Moynihan is correct. There's a very high and keen interest in the matter of the economy. But these issues also have very stong constituencies, and we feel we raise very valid points, particularly who ought to be deciding abortion and prayer policy in the United States. And I would put my preference upon state government in this case. I do trust the state and local government to make responsible decisions in these areas, and the basic thrust of all proposals we've made would simply do that.We wouldn't dictate what the policy ought to be; we simply have confidence in people at the state and local level to make the decision. And I think we have a lot of people in this country, when they understand what we're talking about, who do support us; hence they are important issues.

MacNEIL: Mr. Phillips, is any candidate for the Congress or Senate going to be made or broken by any one of these issues this time?

Mr. PHILLIPS: It's hard to tell. Clearly, in politics the real battle is not the battle between the majorities, it's the battle between the activists. And certainly raising these issues at this time is a message to the activists. It's going to get many people involved in the campaign who otherwise might not have been involved. To single out a particular race where I think it will have an impact, I would point to Tennessee. Robin Beard, the congressman who is running against incumbent Jim Sasser, has criticized Senator Sasser as a flip-flop artist on a number of issues. And of course, he did flip-flop in the position that he took on the right-to-life question, and I believe that will work to the Senator's severe disadvantage. I think there are other areas where it will certainly not help -- George Mitchell in Maine; it certainly will not help Senator Burdick in North Dakota or Senator Melcher in Montana, and some of the other senators who have been on the wrong side of these issues.

MacNEIL: We have to leave it there, Mr. Phillips. Thank you very much. And thank you, Senator Moynihan, Senator East, Senator Gorton. Good night, Jim.

LEHRER: Good night, Robin.

MacNEIL: That's all for tonight. We will be back tomorrow night. I'm Robert MacNeil. Good night.