On April 23 Mansfield met in his office with Humphrey, Kennedy, Katzenbach, Marshall, Manatos, and Frank Valeo, the secretary of the Senate Democrats, to decide how to deal with the Talmadge amendment. They acknowledged that it would pass. Thus, the smart ploy was to counter with a bipartisan substitute. Mansfield invited Dirksen to the meeting and he promptly agreed to cosponsor the alternative with Mansfield. Katzenbach prepared the language and cleared it with Humphrey and Clifford Case, the New Jersey Republican who was in charge of Title XI. The Mansfield-Dirksen version, submitted on April 24, provided that, at a judge’s discretion, a person accused of criminal contempt could be tried with or without a jury. If there was no jury, the fine could not exceed $300 or imprisonment for 30 days. Dirksen also dropped his “mysterious” 11th amendment.
The outlook in late April had much improved and even Mudd was no longer standing in the rain. Johnson and Humphrey were cheered by the smooth relationship with Dirksen and there was talk that the time might be ripe for a vote on cloture. A new Harris poll showed that 70 percent of the public supported H.R. 7152 and 63 percent favored limiting debate. At the Republican policy luncheon on April 28 Dirksen announced that he was giving the southerners one week notice. If they did not terminate the filibuster by May 5, he would file a petition for cloture. There was, evidently, no objection from his fellow Republicans. He told the press, “This isn’t a bluff. … The time has come to move off dead center.”
But Dirksen was still playing poker. He told the reporters that the President wanted the House bill without change. He was going to the White House to tell his old buddy, “Well, in my humble opinion, you are not going to get it. Now it’s your play. What do you have to say?” If Johnson agreed to compromise on his amendments, Dirksen said, he would deliver between 22 and 25 votes to stop debate.
Humphrey, anticipating such a ploy, beat Dirksen to the Oval Office. He assured Johnson that victory was near and that there was no need to make any concessions. When the outmaneuvered Dirksen got in, the President, of course, refused to bargain. As Dirksen left the White House he told the reporters that they had barely discussed civil rights.
The President had breakfast with Mansfield, Humphrey, and Hayden on May 4. Humphrey had been working over the western Democrats to abandon their historic position and vote for cloture. Johnson, frustrated by the length of the filibuster and worried about reaching 67, had decided to move on Hayden.
There had been an historic understanding in the Senate between the South and the West over closing debate. Without the West, the South would lose on civil rights; without the South, the underpopulated and semi-arid West would lose federal support for development projects, particularly access to water. Hayden had represented Arizona since it had been admitted to the Union in 1912. He prided himself on never having voted for cloture. In 1911 a filibuster had defeated President Taft’s proposal to a Republican Senate to combine the Arizona and New Mexico territories into a single state. “I would never have been here,” Hayden said, “but for the right to filibuster.” Since 1948 he had been pushing in Congress for the massive Central Arizona Project, which would deliver Colorado River water to Phoenix and Tucson. He needed southern support. “The President suggested,” the Whalens wrote, “that if Hayden voted for cloture, Johnson would help the Arizona Water Project.” He did not press, but “just left the suggestion on the table.” On May 7 Secretary of the Interior Stewart Udall, himself from Arizona, wrote the President that “your gambit… was very persuasive.” He also pointed out that Hayden “will carry several other votes with him—such as the two Nevada senators.” Since California and Arizona share the Colorado River border, there was a potential interstate conflict, but Kuchel worked it out. The final agreement was that Hayden would vote for cloture, if needed. If not, he would vote against it to maintain his long record.
On May 4 Dirksen, Mansfield, Humphrey, Kuchel, Warren Magnuson, Democrat of Washington, Bourke Hickenlooper, Republican of Iowa, Kennedy, Katzenbach, and legal assistants, three for the Republicans and two for the Democrats, seated themselves at Dirksen’s conference table. Their job was to draft language for the Dirksen amendments and, it was hoped, to come up with a final bill everyone could support. They spent five working days on this task, concluding on May 13. The pattern was for the whole group to meet in the mornings for “educational purposes,” as Katzenbach put it. He was surprised by “the lack of real understanding of the Civil Rights Bill.” The afternoon sessions that Katzenbach held with the legal technicians went off without a hitch. As he summed it up later: “The bill got completely rewritten with virtually no change of substance. … Just words.”
It was a perfect political solution. Since much of the language was Dirksen’s, he could stake a claim to authorship of the Civil Rights Act. The House of Representatives would be pleased because the new bill honored the promise to McCulloch. The Johnson administration, the northern liberals in both houses, and the civil rights movement would come away with a strong law. At a joint press conference Dirksen announced triumphantly, “We have a good agreement.” The Attorney General called it “perfectly satisfactory.” “And to me too,” Humphrey echoed. The next day Katzenbach explained the changes in verbiage to Celler and McCulloch and both accepted them. For the Leadership Conference on Civil Rights Joe Rauh called the bill “a great victory for civil rights” and Arnold Aronson, its director, said it was “a much stronger bill than we expected.”
On May 19 senators from both parties met in caucus to discuss the revised bill. Except for automatic objection from the South, Mansfield had no opposition from the Democrats. In what for him was a long speech he praised Humphrey for masterful handling of the bill.
Dirksen, however, ran into real trouble with the Republicans, particularly Hickenlooper, who called him a “softie.” Through five long sessions Dirksen gradually wore Hickenlooper and his own health down. As the Whalens put it, he had now become “a crusader for civil rights.” In a press conference at the close of the caucus Dirksen used a line that would go into the history books. Victor Hugo had written in his diary, he declaimed, “No army is stronger than an idea whose time has come.” The time had come for civil rights and no one could stop it. At the end of the fifth day, the afternoon of May 25, Dirksen won consensus among the Republican senators to support the new bill.
Mindful of his duty to give the minority leader the spotlight, the next day Humphrey invited Dirksen to introduce the 74-page bill the press now called the “Dirksen substitute.” The filibuster had gone on for a wearing 64 days. “We have now reached the point,” Dirksen said, “where there must be action.”
On Monday, June 1, Mansfield stated that a petition for cloture would be filed on the next Saturday and the vote would be taken on Tuesday, June 9. A reason for the delay in the vote was the California primary on June 2, which pitted Barry Goldwater against Nelson Rockefeller for the Republican nomination for President. Senator Goldwater had already announced that he would vote against cloture. Pro-Goldwater senators who intended to vote to stop debate wanted to avoid embarrassment. Another reason for delay was that Humphrey was still trying to push the number up to 67 and needed the time. On June 4 conservative Iowa Republican Jack Miller announced that he would vote for cloture in response to interdenominational church pressure in his state.
Hickenlooper was causing trouble and was trying to win over conservative Republicans. It seems to have been personal jealousy. Republican Senator Hugh Scott of Pennsylvania said that Hickenlooper was “choleric. … He had been in the Senate longer than Dirksen. … All the public attention was going to Dirksen.” He demanded that the vote be set ahead a day to June 10, which Mansfield accepted. He then demanded a vote on three new amendments on June 9. This was an opening for Humphrey. In return for the agreement to provide this vote, he got four conservative Republicans to vote for cloture—Roman Hruska and Carl Curtis of Nebraska, Karl Mundt of South Dakota, and Norris Cotton of New Hampshire.
The problem which Morse had
raised did not go away. The Dirksen substitute differed from the bill the House had passed in much of its language, if not in substance. There was neither a Senate committee report nor a Senate-House conference report. How could legislative intent be divined later by the Equal Employment Opportunity Commission and the federal courts? On June 4 Humphrey made a limited statement of intent.
The major provisions of Title VII, he pointed out, had not been modified, but there were three changes. The first involved EEOC authority in states and cities with effective FEPC laws. Both the House bill and the Dirksen substitute empowered the commission to make agreements with the state agencies authorizing them to handle violations of their own laws. In the absence of such an agreement a complainant without recourse to a state agency would file with the EEOC.
Under the Senate version, second, an aggrieved person could bring his own suit in federal court and need not depend entirely on EEOC. The complainant could do so through the Attorney General without cost to himself. The Attorney General could also bring suit “whenever he has reasonable cause to believe that there is a pattern or practice of discrimination in violation of Title VII.”
The third change limited the record-keeping obligations of employers, employment agencies, unions, and labor-management committees.
Meanwhile, a problem had arisen in Illinois that commanded the Senate’s attention. In the fall of 1963 Leon Myart, a 28-year-old black man, applied for a job checking for defects in televisions at Motorola in Chicago. The company gave him its standard 28-question multiple-choice general ability test, which it required all applicants for such jobs to take. Myart failed the test and Motorola did not hire him. He then filed a complaint with the Illinois Fair Employment Practice Commission, alleging that the test violated the state law because it discriminated against disadvantaged blacks as a class. The examiner, Robert E. Bryant, a black lawyer, held the hearing on January 27 and issued his recommendations to the commission on March 5,1964. Bryant ruled that the test was inherently unfair to culturally deprived groups and recommended that the FEPC order Motorola to cease giving it and to hire Myart.
Bryant’s report was a sensation. Motorola, of course, appealed to the Illinois commission and was joined by employers’ associations in the city and the state. The Chicago Tribune and Arthur Krock in the New York Times were outraged by this attempt to restrict an employer’s right to hire qualified employees. John Tower, the conservative Texas Republican who had won Lyndon Johnson’s old Senate seat, introduced an amendment to Title VII. It would make it lawful for an employer to give “any professionally developed ability test” to an individual seeking employment or to an employee applying for a transfer or promotion provided that the test was given equally to all and was administered without regard to the individual’s race, color, religion, sex, or national origin.
In the debate on June 11 Tower stressed the professional character of these tests and was supported by the testimony of the psychologists who had written them. Case, the Republican manager on Title VII, while agreeing that Bryant’s ruling was improper, said that the amendment was unnecessary and might actually be used to legalize discrimination. Humphrey pointed out that the experts who wrote the Dirksen substitute had given the Motorola case “the most careful attention” and had concluded that the problem could not arise under this bill. The Tower amendment was defeated 49 to 38.
But the stubborn Texan refused to yield. On June 13 he submitted a brief version, which read that an employer could lawfully “give and … act upon the results of any professionally developed ability test provided that such test, its administration or action upon the results thereof is not designed, intended, or used to discriminate because of race, color, religion, sex, or national origin.” Humphrey, eager to move on, stated that senators on both sides of the aisle had examined and approved the amendment. It was adopted by voice vote.
On Monday, June 8, Mansfield moved to close debate on H.R. 7152 under the Senate’s Rule 22. The motion was signed by 27 Democrats and 11 Republicans and called for the tally on Wednesday. The Hickenlooper amendments, none of particular importance, were disposed of on Tuesday. That evening Johnson called Humphrey to ask again about 67. “We have the votes,” Humphrey crowed triumphantly. The President still expected difficulty. Later that evening two more conservative Republicans entered the fold—John Williams of Delaware and Hickenlooper. Humphrey then called three wavering Democrats—Ralph Yarborough of Texas, Howard Cannon of Nevada, and Howard Edmondson of Oklahoma. All said they would vote for cloture.
Humphrey stayed up all of Tuesday night, but on Wednesday morning, according to a friend who shared a pitcher of orange juice with him, he was his usual “exuberant, optimistic, bouncy self.” On his way to the Senate chamber he passed Phil Hart, the Michigan Democrat, a slip, which read: “69.” Dirksen spent the night at his Virginia farm and stayed up late working over the speech he would deliver on Wednesday. He rose at 5:00, had a light breakfast, and went to the garden to cut roses for the office.
At precisely 10:00 a.m. Lee Metcalf, the Montana Democrat who was in the chair (there was no Vice President), called the Senate to order. All the senators were present, there were 150 standees, including many members of the House, and the galleries were jammed. Mansfield, characteristically, was brief. He read a letter from a Montana woman, the mother of four, who wanted to help. “The only way I know to start is to educate my children that justice and freedom and ambition are not merely privileges, but their birthrights.” Russell spoke for half an hour, mainly a constitutional attack on the bill. He appeared to lack conviction. Cecil Newman, editor of the black St. Paul Recorder, said, “It seemed to us as we listened to the venerable segregationist that we were witnessing the end of an era.” Humphrey, with a red rose in his lapel, spoke for only two minutes. He called for making the “dream of full freedom, full justice, and full citizenship for every American a reality … and it will be remembered until the end of the world.” Sadly, Dirksen, at his grandest moment, was suffering from his ulcer and twice needed to pop pills. He spoke quietly with no oratorical flourishes. But he did give final form to what would become his historic statement:
It is said that on the night he died, Victor Hugo wrote in his diary substantially this sentiment: “Stronger than all the armies is an idea whose time has come.” The time has come for equality of opportunity in sharing in government, in education, and in employment. It must not be stayed or denied.
As Everett Dirksen sat down with relief, Hubert Humphrey crossed the aisle and extended his hand.
At 11:00 Metcalf called for the roll. Almost all the senators kept tally sheets, and many spectators, though it was against the rules, did so as well. Roger Mudd, sweltering in 100-degree heat outside, announced each vote as it was relayed to him by telephone from the press gallery. Aiken, Allott, Anderson, Bayh, Beall—When the roll call reached Clair Engle, the California Democrat, there was a moment of silence and many wept. He sat in a wheelchair in the final stage of terminal cancer, unable to speak. He feebly raised his hand three times, pointing to his eye. Williams cast the magic 67th vote.
The final tally was 71 to 29, four more than needed. “And so,” the Whalens wrote, “after 534 hours, 1 minute, and 51 seconds, the longest filibuster in the history of the United States Senate was broken.” Cloture won support from 44 Democrats and 27 Republicans. The opponents consisted of 23 Democrats (20 from the South) and six Republicans.
The Kennedy-Johnson-Mansfield-Humphrey strategy had worked flawlessly, far better than they could have anticipated at the outset. To the core of liberal Democrats from the East and the Midwest, Dirksen had joined 12 liberal and moderate, and, amazingly, 15 conservative Republicans. The western bloc shattered. Bartlett and Gruening of Alaska, Engle of California, Church of Idaho, Mansfield and Metcalf of Montana, Cannon of Nevada, Anderson of New Mexico, Burdick of North Dakota, Edmondson and Monroney of Oklahoma, Morse and Neuberger of Oregon, McGovern of South Dakota, Yarborough of Texas, Moss of Utah, Jackson and
Magnuson of Washington, and McGee of Wyoming, all Democrats, voted for cloture. The three negative Democrats were an odd group. Carl Hayden was told that his vote was not needed and maintained his proud consistency. Alan Bible felt that the filibuster was the best protection Nevada’s gaming industry had against federal regulation. Robert Byrd of West Virginia, a former member of the Ku Klux Klan who actually conducted a mini-filibuster on June 9, many years later described his vote as the worst mistake he had made in a long and distinguished Senate career. The six Republicans who voted against cloture were all from the West—Bennett of Utah, Goldwater of Arizona, Mechem of New Mexico, Simpson of Wyoming, Tower of Texas, and Young of North Dakota.
The vote for cloture, of course, guaranteed passage of the Civil Rights Act. Excepting the segregationist press in the South, it was hailed in the U.S. as a dramatic triumph. The U.S. Information Agency made a study of the non-Communist foreign reaction with the following summary:
Commentators viewed the passage as the most important step forward in the American Negro’s struggle for equality since the Emancipation Proclamation; as a “victory” that will “shape the future of the United States”; as a “turning point” in American history; as enhancing the international influence of the United States, especially among non-white and newly-independent nations; and as reinforcing the moral authority of the United States and its dedication to freedom and social justice.
The Communist press downplayed the importance of the vote, predicting continued racial conflict. This was also a theme of non-Communist editors. The adoption of the law would not “immediately or easily” bring equality or end strife and resistance.6
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