Guns or Butter

by Bernstein, Irving;

  Many considered Title II, public accommodations, the heart of the civil rights bill. A Gallup poll for the week of June 21 to 26, 1963, showed that of those with opinions 49 percent favored a public accommodations law, while 42 percent opposed. For whites outside the South the split was 55 to 34 percent; among southern whites the opponents led 82 to 12. The majority nationally that supported the law grew to 61 percent by January 1964. Opposition in the South eroded from 82 percent in June 1963 to 72 percent by January 1964. Even more significant, southerners who opposed integration expected to lose. The Gallup poll for June 21 to 26, 1963, asked them if the day will come when both races will go to the same schools, restaurants, and so on. Some 83 percent of southerners said this would take place, 49 percent within 5 years. Significantly, after Birmingham religious organizations—Protestant, Catholic, and Jewish—increasingly put their great political weight behind civil rights.

  During October and November 1963 there was a donnybrook in the House Judiciary Committee. McCulloch had helped steer a modest civil rights bill through the House in 1957 to see it gutted in the Senate by majority leader Lyndon Johnson in the face of a southern filibuster. He was determined to prevent that from happening again. McCulloch, therefore, extracted a promise from President Kennedy and the Department of Justice that they would stand by the House bill and not give pieces of it away in the Senate. The House Judiciary Committee under chairman Emanuel Celler, the New York Democrat, voted for a strong civil rights bill, called H.R. 7152, on November 20, 1963, by a vote of 20 to 14. There were a number of changes from the titles in the original administration bill: II. Public Accommodations—retail stores and personal services were excluded; III. Public Facilities—the Attorney General could intervene only after an individual had filed a complaint and had demonstrated his inability to pursue the suit; V. Community Relations—eliminated; new V. Civil Rights Commission—would become permanent; VI. Federally Assisted Programs—limited to federal grant, contract, and loan programs; and VII. Equal Employment—an Equal Employment Opportunity Commission would replace the executive order, but with restricted powers.

  H.R. 7152 moved to the Rules Committee just before the Kennedy assassination. Its chairman, 81-year-old, arch-conservative, and dedicated segregationist Howard Smith of Virginia, was determined to use all of his formidable authority to prevent the issuance of a rule. If the new President wanted a civil rights law, he would have to find a way around Smith.1

  Lyndon Johnson, despite his earlier ambivalence on civil rights, now committed himself to H.R. 7152. He had three reasons for doing so: his conviction; his constituency had widened from Texas to the nation; and his duty as the caretaker of the Kennedy legacy.

  Johnson wrote, “I believed that a huge injustice had been perpetrated for hundreds of years on every black man, woman, and child in the United States. I did not think that our nation could endure much longer as a viable democracy if that injustice were allowed to continue.” George Reedy worked for Johnson for years, knew him extremely well, and saw him in the round. He said,

  Mr. Johnson is one of the least prejudiced or biased or intolerant or bigoted men I have ever met. He has many shortcomings and many failings, but I don’t believe there is any racial prejudice in him whatsoever; and this is the thing that became very apparent to most of the Negro leaders when they had a chance to know him personally.

  Roy Wilkins of the NAACP, who dealt with Johnson over many years, agreed. “I grew to believe that the man is absolutely sincere on this question of opportunity and race. He has risen above his background.” Hubert Humphrey said, “I knew he was sincere … [that] he was not a segregationist.”

  Until 1961 Lyndon Johnson had been a senator from Texas. That state was in the South and was racially segregated. No one could be elected to the Senate from Texas who spoke in favor of racial integration. During the fifties Paul Douglas had been a firmly committed member of the small band of warriors in the Senate who fought for civil rights. He regarded Johnson as the enemy. Douglas “lamented” the fact that Johnson had become President because Douglas thought he would continue to block racial progress. He was astonished and delighted when Johnson turned completely around. “No one could have been more vigorous than he … on civil rights.” So “I took up my courage” and asked Mrs. Johnson, who knew him best of all, to explain the change. “She said, ‘The President has to take into consideration many things that a senator does not.’ And that was that.” George Reedy on the 1957 civil rights bill:

  LBJ didn’t give a good whatever we want to use about how the southerners felt about civil rights, except to the extent that it set certain limits on what could be done with a bill. LBJ had no sympathy whatsoever for the anti-civil rights movement. If he had had the votes to do it, the legislation that would have passed would have been far more extreme than what was passed. But LBJ was not a southerner in that sense. It was rather unfortunate that the poor devil came from a Confederate state, which … historically was not very Confederate. Texas got tricked into the Confederacy. It did not enter very willingly, and it did not play much of a role in the Civil War.

  As trustee of the slain President’s legacy, Johnson had to take the same position on the bill. He did so publicly in his address to the joint session of Congress on November 27, 1963:

  No memorial oration or eulogy could more eloquently honor President Kennedy’s memory than the earliest possible passage of the civil rights bill for which he fought so long. We have talked long enough in this country about equal rights. We have talked for one hundred years or more. It is time now to write the next chapter, and to write it in the books of law.

  Over the next seven months, while the bill was before Congress, Johnson would return to this refrain again and again.

  But the main role Johnson would play in the legislative history of H.R. 7152 would come later in the Senate. It must first clear the House and here the key figure was Howard Worth Smith of the 8th Congressional District of Virginia, widely regarded since Sam Rayburn’s death as the most powerful man in the House of Representatives.

  Smith was a living fossil of the post-Civil War rural South. He had been born in the family farmhouse, Cedar Hill, near Broad Run in Fauquier County in 1883, just 18 years after Appomattox, a house that somehow managed to survive the ravages of the nearby battles. He helped on the farm, was taught by a cousin, attended a local military academy, and went to the University of Virginia Law School in Charlottesville, from which he graduated in 1903. By that time his style and views had hardened and would never change. He was brilliant, extremely diligent, gracious in the Virginia manner, and soft-spoken. Carl Albert, a former Rhodes scholar who was Democratic whip in the House in 1964, knew Smith very well and much admired him:

  By birth and by choice Judge Smith, as we knew him around the Capitol, was an unreconstructed nineteenth-century Virginian. He spent his entire legislative life trying to ward off federal encroachments into the world in which he was born. He had all the attributes, including all the prejudices, of his native state. He distrusted all influences outside of his own area. He was brought up believing that Yankees, carpetbaggers, Republicans, and foreigners were enemies of his people and of the way of life they enjoyed. He was a white supremacist who fought racial integration to the bitter end. He opposed nearly all federal social reforms, including health, education, and welfare bills. He believed in the Constitution “as written.” He was a strict constructionist and states’ righter. He was a Tenth Amendment congressman.

  In 1904 Smith opened a law office in Alexandria. He speculated in real estate and soon became rich. He entered local politics as a stalwart of the Virginia Democratic organization, later the Byrd Machine, and was elected to a number of local and state offices, including a judgeship. In 1930 the door to the 8th District fell open and Smith walked in. He would hold that seat for 36 years. Early on, in 1933, he found his home on the Rules Committee, the spigot which, turned on or off, determined whether a bill would reach the floor of the House. He
seemed to have no interests save his job and worked at it extremely hard. He was a superb parliamentarian and knew more about the contents of bills than any other member of the committee. He emerged as the House leader of the southern Democratic-Republican coalition that opposed progressive legislation.

  Starting with the New Deal, Smith vented his animus against organized labor and “undesirable” aliens. In 1939–40 he chaired a committee that broadsided the National Labor Relations Board. He was the author of the Smith Act, passed in 1940, which imposed many disabilities on aliens, including deportation. In 1943 he was the driving force behind the Smith-Connolly Act to prevent wartime strikes and to restrict unions. In 1947 he wrote the Hartley part of the Taft-Hartley Act, though Smith would have gone much further in punishing unions than Senator Taft allowed.

  In 1954 Smith won ultimate power when he became chairman of the Rules Committee, which he came to dominate by controlling both the southern Democratic and Republican votes. He kept everything off the floor of which he disapproved. His legislative chokehold and the ruthless manner in which he exercised it became a burning issue to Speaker Rayburn and the liberal northern Democrats. Kennedy’s election in 1960 and his New Frontier agenda guaranteed a showdown. Rayburn proposed enlarging the committee from 12 to 15 members, which would give the liberals and modcrates a shot at an 8 to 7 majority. This led to the historic confrontation early in 1961 between Rayburn and Smith when Mr. Sam left the rostrum for a speech on the floor urging the three new members. But he barely won by a vote of 217 to 212. This did not give liberals control of the Rules Committee. Depending on the bill, it meant that they now had a chance of winning. Thus, the outcome on H.R. 7152 was much in doubt. The only certainty was that Howard Smith would fight to the finish with all his parliamentary guile to bury what he called “this nefarious bill.”

  The Judiciary Committee had referred the measure to the Rules Committee two days before the Kennedy assassination. Smith, when it suited him, was one of the world’s great procrastinators. When what he referred to as the 1957 civil “wrongs” bill was before his committee, Smith had disappeared. The rumor was that the dairy barn on his farm had burned down and that he had to leave town to inspect the damage. A Republican on his committee said, “I knew the Judge was opposed to the civil rights bill. But I didn’t think he would commit arson to beat it.” Now he announced that he might have to take a trip.

  In anticipation of such trouble, in early December 1963 the Democratic leadership explored the three options for prying a bill loose from the Rules Committee. Under House Rule 27, any member could file a discharge petition 30 days after a measure had been favorably reported by a standing committee. But the petition must be signed by a majority of the House—218 members. On December 9 Emanuel Celler, the chairman of the Judiciary Committee, filed the petition, But, according to Larry O’Brien, by January 6, 1964, Celler had gotten only “approximately” 173 signatures. The needed 45 Republican votes never appeared, and for good reason. McCulloch disliked discharge petitions because he thought they undermined the committee system. Halleck opposed them because he insisted that the Rules Committee hold hearings, and none had been conducted. Without McCulloch and Halleck there were no Republican votes.

  Second, House Rule 24 offered calendar Wednesday. On any Wednesday the clerk could call the names of the standing committees alphabetically and, when called, the committee chairman could order his bill onto the floor. The House then became a committee of the whole and had two hours for debate. The entire procedure must take place within one day. The rule was almost never invoked because the opponents held all the trumps. In alphabetical order Judiciary ranked twelfth. Of the preceding eleven, six had southern chairmen, any one of whom could preempt Celler by calling up one of his own bills.

  Finally, House Rule 11 stated that three members of a committee could ask the chairman to call a meeting. If after three days he had not done so, a majority of the committee—in the case of Judiciary, eight members—could order a meeting at a specific date and time. There were five Democrats ready to invoke Rule 11. Would the Republicans supply at least another three?

  The Republican leader on Judiciary was Clarence Brown, Sr., of Blanchester, Ohio, whose district bordered McCulloch’s. He was very conservative on all issues except civil rights and had worked with Smith for years to block progressive legislation. But he revered the Republican party’s Lincoln tradition. Further, two black colleges, Wilberforce and Central State, were in his district, as was the town of Xenia, an important station before the Civil War on the underground railway on which runaway slaves escaped to Canada. Brown had delivered the votes for the Eisenhower civil rights bills in 1957 and 1960.

  He was considerate. On December 4 he told Smith, “I don’t want to run over you, Judge, but. … ” Since Brown had the votes to force a meeting, Smith knew that the game was up. On December 18 Smith yielded, promising hearings on January 9, 1964.

  The committee listened to 33 witnesses over 9 days of hearings which spread over most of the month. As was customary in Rules Committee hearings, witnesses went beyond questions of procedure to discuss the merits of H.R. 7152. There were bitter exchanges between Celler and Smith. On January 29 the chairman reached the end of the line. The Republicans wanted the bill on the floor so that debate could be concluded in time for them to deliver their traditional Lincoln’s Birthday speeches on February 12. Knowing that Brown would force his hand, Smith in resignation called for the vote on January 30. The committee adopted the rule 11 to 4. All five Republicans joined five northern Democrats and one southerner in the majority. Smith won over only three other southern Democrats. H.R. 7152, gathering speed, moved to the floor of the House of Representatives.2

  The Democratic leaders, their Republican allies, and the White House were confident. Larry O’Brien’s head count for January 20, 1964, showed 220 House members, two more than a majority, pledged to support H.R. 7152. Smith was gloomy, and many southerners conceded privately that it was all over when the bill had cleared the committee. In fact, a large number did not even bother to appear on the floor. The Republicans were so hopelessly divided between those who stood for the Lincoln tradition and those with few blacks in their districts who did not want to get into a fight that Halleck refused to call a caucus. As Les Arends, the minority whip, explained, “All we would do was tear ourselves apart.”

  The bipartisan majority came to the debate armed with massive support. When Celler and McCulloch took their seats at the long tables on the floor, each had a large title-by-title manual prepared by the Justice Department. For every title there was an analysis of its history and need, a summary of the provisions, a review of scope and constitutionality, probable major objections, possible amendments and arguments against them, replies to the Judiciary Committee’s minority report, and a summary of related state laws. There were answers to all the questions Smith had asked at the Rules Committee hearings. Eight attorneys from Justice, each a specialist in a title, stood by to help if needed. Katzenbach and Burke Marshall were seated in the gallery.

  Since H.R. 7152 was long, technical, complex, and important, a large number of votes would be needed. The fact that a representative had committed himself to support the bill was interesting, but not conclusive. He must be on the floor to vote each time his name was called. The polling would take ten minutes and that was the maximum time in which to find and produce the bodies. For this operation Celler and McCulloch set up three levels of whips.

  The Democratic Study Group, 120 supporters, worked the floor. Hale Boggs, the majority whip, did not participate because he was from Louisiana and would vote against the bill. Under the supervision of Frank Thompson of New Jersey, 17 DSG members were each assigned six to eight congressmen. When a vote seemed imminent, Thompson would call the DSG office, which would phone the 17 whips, and their offices would call the assigned members to get to the floor. If they did not appear when the roll was called, there would be a second call.

  O’Grady’s R
aiders patrolled the Cannon and Longworth buildings. Jane O’Grady was the lobbyist for the Amalgamated Clothing Workers and directed 25 union volunteers who, when the vote bell rang, scurried to congressional offices to insure that members got to the floor.

  The Leadership Conference on Civil Rights, a coalition of civil rights, labor, church, and women’s organizations that supported H.R. 7152, had its people in the galleries. Since writing in the galleries was forbidden, each memorized the faces of several congressmen to learn who voted and who did not.

  The House debate opened on January 31,1964. Celler and McCulloch, characterized by the latter as “the Brooklyn street urchin and the Ohio plowboy,” led off, Celler, describing the moment as “a golden opportunity,” declared,

  What we are considering this day in effect is a bill of particulars on a petition in the language of our Constitution for a redress of grievances. The grievances are real and genuine, the proof is in, the gathering of evidence has gone on for over a century. The legislation before you seeks only to honor the constitutional guarantees of equality under the law for all. It bestows no preferences on any one group; what it does is to place into balance the scales of justice so that the living force of our Constitution shall apply to all people, not only to those who by accident of birth were born with white skins.

  McCulloch continued,