The Bill of the Century: The Epic Battle for the Civil Rights Act

by Risen, Clay

  Five days later, a bomb went off in the basement of the 16th Street Baptist Church in Birmingham, killing four young girls and injuring a fifth. In the violence that followed, a police officer shot a black teenager in the back, killing him, and a pair of white Boy Scouts shot and killed another black boy riding his bicycle. Like Medgar Evers’s murder three months earlier, the bombing shocked the world. Kennedy placed the blame squarely on Wallace: “It is regrettable that public disparagement of law and order has encouraged violence which has fallen on the innocent.” Still, he waited several days to meet with civil rights leaders, and even then was noncommittal on whether he would take steps to strengthen the civil rights bill.115

  The bombing pushed the LCCR organizations to lobby even harder for a stronger civil rights bill. “In the face of these murders it is obscene to talk about the compromise necessary to obtain a rule or to achieve cloture or to argue the need to protect the right of the small businessman or the bowling alley proprietor to discriminate,” said Wilkins. Robert Spike, speaking for the NCC, said: “Out of this dark night of violence a new dawn of racial justice must come, and the churches have the clear and unmistakable duty urging it. The first step which must be taken, and take at once in Birmingham is not to be repeated, is the immediate passage of a strengthened civil rights bill.” When Kennedy dragged his feet on his response, the LCCR lashed out. “The administration itself, almost as if Birmingham hadn’t happened, shows no inclination to work for the kind of amendments that would improve the bill, and that is a cause for keep disappointment,” the group said in its September 20 newsletter. “Administration officials have not been content to remain passive. They have been arguing against some of the most meaningful amendments being proposed—an FEPC provision, for instance.”116

  The bombing, and the heavy movement pressure that followed, dramatically altered the dynamics of the subcommittee. On September 25, the same day the House voted to pass the tax cut bill, Rogers offered a Title III amendment, empowering the attorney general to sue, or join suits, that alleged discrimination by public officials. Almost immediately after, Peter Rodino offered a title that would ban employment discrimination based on race, religion, color, or national origin, enforced by a fair employment practices committee with cease-and-desist powers. Taken together, these two amendments represented the Holy Grail of the civil rights forces; now all they had to do was keep them in the bill.117

  A fuming McCulloch told the reporters gathered outside the committee room that the new Title II and FEPC planks “may strangle” the bill altogether. Kastenmeier’s public accommodations additions in particular, he told a reporter for the Dayton Daily News, were “so severe they threaten passage of civil rights legislation, not only in the Senate but even in the House. I am opposed to these unbelievably severe powers that would cover every business in Ohio that carries goods and services to the public.” Still, he held out hope that “compromise, moderation and understanding” could bring the bill back into shape before the final vote.118

  But McCulloch hoped in vain. On October 2, Celler moved the subcommittee through votes on the “tentative” amendments, with each getting easy approval by the Democratic majority as the Republicans looked on helplessly. Even the liberal Republicans were apoplectic: Lindsay had offered an amendment to add a Fourteenth Amendment justification to Title II, much like Kastenmeier’s, but it had been shot down by Democrats—and now he watched as the Democrats roundly approved an identical amendment by one of their own. The voting over, the Republicans, conservative and liberal, stormed out of the committee room.119

  The bill, and Celler, drew immediate praise from civil rights groups and liberal media outlets. The New York Times editorial board said the chairman “has demonstrated that Congress can supply initiative and intelligence in a great cause on the rare occasions when it is so moved.” Even before the bill was publicly reported, the LCCR demanded that Kennedy immediately endorse the new draft. “The administration should embrace the subcommittee version and support it vigorously,” the group said in a statement. “When it does it will find enough Republicans to join.” If the president did not, warned Wilkins, black America would explode. The reaction “will differ according to degree and the part of the country and will consist of rallies, petitions—and maybe marches.”120

  Others were less enamored. McCulloch called the amended bill “a pail of garbage,” and said he did not know if he could even work with the Democrats in the full committee. Charles Bartlett, a political columnist said that the liberals had failed the bill by letting the political optics of their home districts get in the way of a meaningful bill. “Celler has endangered the measure by approaching it in a candidly political way,” Bartlett wrote.121

  Katzenbach had been away for three days on a Justice Department mission to Nicaragua, and he only found out about the new draft when he returned. “Our worst fears had been realized,” he later wrote. When he challenged Celler, the chairman said that it was all going according to plan, and that the bill would be put back in order in the full committee. “He did not say how.”122

  Chapter 4

  The October Crisis

  A few hours after Celler announced the subcommittee draft of H.R. 7152, Katzenbach practically hauled him bodily into a meeting with Marshall, O’Brien, and Celler’s Judiciary Committee counsels, Ben Zelenko and Bill Foley. The deputy attorney general was apoplectic; the last he had known, before being booted from the executive sessions by Meader, was that Celler was on track to deliver the president’s bill, modified to fit McCulloch’s specifications. The bill that emerged, he said, was unrecognizable.1

  Did Celler not understand, Katzenbach demanded to know, that McCulloch was the key to the whole enterprise? Don’t worry, said Celler. Everything was going according to his plan. He had passed the loaded bill to appease the liberals; the Republicans on the full committee would now pare back the bill. Katzenbach was hardly convinced. In measured but heated words, he explained that the last thing McCulloch wanted was to be seen as the one forcing a compromise on civil rights. The Ohio Republican would rather let the bill die at Celler’s hands than take responsibility for watering it down. In any case, what was Celler’s plan? The chairman wilted. “I do not believe he has any idea how this can be accomplished,” Katzenbach wrote in a memo to Robert Kennedy after the meeting. “What a mess!”

  With Katzenbach’s memo in hand, Robert Kennedy sat down with Celler the next morning. Celler, he practically screamed, had failed the administration, and failed the bill. From here on, the Department of Justice would handle the bill. “It was unpleasant,” Kennedy recalled understatedly. The only solution was for Celler to step aside and let Katzenbach and Marshall negotiate a compromise directly with McCulloch.2

  Celler was unhappy with the way he was being treated by the executive branch, but he was also aware of how badly he had erred in letting the liberals load up the bill. “He thought that he was being scolded. And he was being scolded,” said Marshall. “He did resent it at the time. But then, I think, he finally came around and accepted it.”3

  The proposal to let Katzenbach take the reins of the bill in negotiations with McCulloch was unprecedented, and a clear violation of the traditions of the separation of powers. Once a bill was before Congress, the White House was supposed to step aside and let the legislative branch do its job. Instead, Kennedy demanded that an unelected official, and not even a cabinet-level official at that, go around the Judiciary Committee chair and work out a deal with a member of the minority party. And for this to happen on an issue like civil rights, an issue that Celler had been so committed to for so many years, must have burned especially hot. It is a testament to his fealty to the Kennedys and the party, and perhaps his own waning rigor, that Celler agreed to let them proceed—and not only that, but he called McCulloch and gave him his blessing to go meet with Katzenbach directly.4

  The Justice Department wasted no time. That afternoon, Katzenbach and Marshall went to McCulloch’s office. The
Judiciary Committee Republicans had already had their own meeting, just hours after the bill was announced, joined by Minority Leader Halleck. They were furious, and, as Katzenbach expected, they refused to help Kennedy pare back the bill to make it palatable for the Senate, Celler’s ostensible strategy. McCulloch relayed that anger, with a dollop of his own, to the two Justice men next day. This was an exact replay of 1957 and 1960, he told Katzenbach, and he wouldn’t go along. The original bill would have already been a hard sell to conservative Republicans—this new version would be impossible. “It would be cut to pieces, nothing would be left, and he would not lift a finger to stop the debacle,” recalled David Filvaroff.5

  But, McCulloch said, he was not giving up. The bill—even in its souped-up version—could survive the House if it looked as if it was being pared back significantly. McCulloch knew what it would take to appease his colleagues, but with the national election just over a year away, he did not want to be responsible for his party’s acquiring an anti-civil-rights image. So McCulloch proposed a deal: the White House would take the public responsibility for exacting cuts to the bill, and he would win over Charles Halleck, and the two of them would then win over enough Republicans in the Judiciary Committee to pass the bill.6

  With McCulloch on board and Celler sidelined, Katzenbach had one more group of stakeholders to win over: the LCCR. The administration had long been wary of the civil rights lobbyists, whom they saw as a cross between starry-eyed idealists and interest-group opportunists, playing on the ever-dashed hopes of American blacks to gain office, money, and prestige. But Kennedy and his men also recognized that any successful bill required their efforts to drum up popular support. Katzenbach and Marshall had done all they could that summer to keep them on board without letting them steer the ship, but the subcommittee bill ruined everything. Seeing the possibility of a strong bill making it out of the Judiciary Committee, the civil rights groups were going to go all out to keep it intact.

  Katzenbach made some perfunctory efforts to win them over. That Sunday he sat down in Larry O’Brien’s office with a klatch of the LCCR’s leaders to lay out his case for compromise—most significantly, ditching Title III powers and paring back, if not discarding, the FEPC. It was an ugly meeting. One LCCR representative, a protestant pastor, told Katzenbach he was as guilty of murder as whoever had planted the bomb at 16th Street Baptist.7

  A few days later, Katzenbach had a similarly frustrating conversation with Walter Reuther, who insisted that the subcommittee bill could survive—that the country was at a unique moment where dramatic change was not only necessary but possible. When Katzenbach demurred, Reuther accused him of being too much a professor. Katzenbach demanded that Reuther tell him where the votes would come from. “I said, ‘Alright, I can count up votes in the committee and I can count up votes in the House of Representatives. What have you got?’” Katzenbach recalled saying. Reuther responded, “I haven’t been into the specifics but I know the mood of this country.”8

  Of course, on one level Reuther and the LCCR were simply being strategic—though they might settle for a compromise in the end, they had no incentive to stop pushing for something better. And the White House was not as angry at them as it might have seemed: after all, the further left that the liberals staked their position, the more the White House could leave in the bill and still call it a compromise. And yet the pastor’s comment to Katzenbach makes clear that this was not all just posturing: many liberals had never forgiven Kennedy’s earlier quiescence on civil rights, and they really did believe that to compromise on Title III and a robust FEPC was to gut the bill. The exchanges underlined the surprisingly wide gap between two groups that should have been closely united, a division that could well have destroyed the bill.

  The liberals continued to play hardball through October. As rumors about secret negotiations between the Justice Department and the Republicans leaked out, groups like the ADA lashed at the White House. “The ink had hardly dried from the print of the excellent House Judiciary Subcommittee civil rights bill before the Administration supported efforts to weaken it,” the ADA wrote in its October 11 newsletter, which went out to thousands of leading Democrats around the country. And the group heavily lobbied individual representatives, particularly the liberal Republicans now torn in three ways by a desire to see a strong bill, anger with liberal Democrats for not sharing the bill with them, and a fealty to the party leadership. As Clarence Mitchell pleaded in an October 8 letter to one of them, Representative Charles Mathias Jr. of Maryland, “the principal reason” for paring back the bill “is the Republicans on the full committee will not support a strong bill. I vehemently disagree with this reasoning.” Later in the month King went after Kennedy directly, saying, “No president can be great or even fit for office if he attempts to accommodate political expediency with human rights.”9

  President Kennedy was just as disappointed, though in his case it was with the subcommittee bill. “I don’t think it’s going to pass,” he told the Reverend Eugene Carson Blake on September 30, after he had learned of the amended bill. To Marshall and Robert Kennedy, he even entertained the idea of letting the liberals run away with the bill, then blaming the Republicans for killing the legislation and reaping the benefits in November 1964. The president, Marshall recalled, mused over “whether we should just accept the fact that we were going to lose the bill and have the President, therefore, just get on the Democratic side of it and accept the liberals’ position and throw the bill away.”10

  But Kennedy was too committed to the bill—and, more importantly, he could already see a way through the morass. The thirty-fifth president is often criticized for his lack of feel for Congress, a charge given weight by the number of landmark bills still floating around Capitol Hill at his death. But while Kennedy may not have had the legislative deftness of Lyndon Johnson, he was far from inept. Kennedy was the first president since Roosevelt to regularly lobby for bills personally or through dedicated liaisons, and he was the first to have a reporting system for each bit of legislation—who talked to which representative, where each senator stood on a bill—so that the White House could coordinate its lobbying efforts with precision. And whereas previous presidents had worked solely with the congressional leadership, Kennedy reached deep into the rank and file. Drawing on his wealth of charisma and genius grasp of the symbolic power of the presidency, Kennedy held regular coffee and breakfast meetings, as well as frequent after-work cruises along the Potomac on the presidential yacht, the Sequoia. And it worked: in 1961 the White House sent 53 major bills to Congress and won 33 of them, a better record than Eisenhower had achieved in six years.11

  At no time was Kennedy’s underappreciated legislative skill more apparent than on civil rights that fall. For Kennedy, as for his aides, the questions were purely mathematical ones: How strong a bill could they write and still win the sixty Republican votes they believed they needed to pass the bill on the House floor? And before that, how strong could a bill be and still win the three Republican votes necessary to ally with the liberal Democrats to overcome the Southern Democrats who stocked the Rules Committee, where the bill would go after Judiciary? And, before getting to either of those votes, what must they do to win at least five Republicans in the Judiciary Committee? Kennedy was less concerned about the Judiciary Committee, where he felt the bill had a good chance of surviving, than the House as a whole. “They’ll vote for the bill,” he complained to Blake about the House Republicans, “but you wouldn’t get even 60 votes. That’s a lot of votes for them.” But he also understood the symbolic importance of getting a strong bipartisan vote out of the committee. If it passed on the strength of a few liberal Republicans alone, but lost McCulloch and the conservatives, then Kennedy and his team would have a hard time selling it as a truly bipartisan product on the floor of the House.12

  Once McCulloch’s demands became clear, Kennedy decided on a three-track strategy. First, Katzenbach would work with McCulloch, in secret, to hammer out a
compromise. Second, as the vote in the committee grew closer, he would personally lobby both McCulloch and Halleck to make sure they could deliver the votes. And third, he would send his brother back to Capitol Hill to explain why the administration opposed the subcommittee bill. (Actually, Kennedy did not oppose all of the subcommittee bill—he was personally delighted that the liberals had inserted an FEPC title, telling Blake that he would rather sacrifice other sections of the bill than lose it, because “at least with FEPC, you get something dramatically important. And that would be a tremendous breakthrough.”)13

  Early in the negotiation process, the bipartisan leadership met with Katzenbach in the office of John McCormack, the Speaker of the House. McCormack was the son of Irish immigrants, and although he became a successful Boston lawyer and then a renowned politician, McCormack never forgot the anti-Irish sentiment that had been at least as large an obstacle to success as his lack of formal education. Like several men in the Democratic leadership at the time—Larry O’Brien, Mike Mansfield, the Kennedys—McCormack drew on fresh family memories of discrimination signs in his approach to civil rights. As he told Andrew Biemiller, the congressman turned labor lobbyist, “I know about discrimination. When I was a kid trying to get my first job, ‘no Irish need apply.’ I’ve never forgotten it. I’m against discrimination.” One evening, the historian and former congressman D. B. Hardeman recalled, McCormack was at a dinner meeting with a group of bankers in Boston. As McCormack was leaving, one of the men approached him in the lobby. “Tell me John, why do you always have a lot of Jews around you?” the man asked. McCormack turned and screamed, “You goddamn son of a bitch, you’re one of those haters!” and pushed him hard in the chest, sending him sprawling across the floor.14