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

by Risen, Clay

  the bill was not safe yet. As momentous as the cloture vote was, it only meant that the debate over the bill itself was over, and that a vote on the legislation would in fact take place. But before that vote, the senators had to consider the amendments to the bill—as many as six hundred of them.

  Many of the amendments were beyond the pale of consideration—Southern-born bids to excise entire titles or add unworkably onerous obstacles to enforcement—while others proposed innocuous fiddling with arcane subtitles. But several were carefully crafted to look like the latter but have the effect of the former, particularly proposals from legislative wizards like Sam Ervin. In order to get to a vote on the bill quickly, Mansfield planned to run through the amendments in rapid succession, with dozens of votes a day, and there was every chance that a pernicious, purposely complex proposal could come up for a vote when no one was paying attention and pass. As the bipartisan newsletter noted the next morning, “Some of the amendments that may be offered are likely to have hidden dangers behind an appealing facade. Serious damage can be done to the bill if such amendments are accepted. Therefore all Senate supporters of the bill are urged to remain on the floor or in their offices while the Senate is in session.”25

  In fact, such trickery is exactly what happened, just moments after the cloture vote was announced. The body took up the first amendment, a proposal by Ervin to prevent a defendant from facing the same charge twice, once under state and then again under federal charges. Ervin presented his amendment, which was technically a “perfecting” tweak to Herman Talmadge’s jury trial amendment, as a simple check on double jeopardy. But it was a Trojan horse: if an all-white Southern state or local jury tried and acquitted a white defendant of violating a black man’s civil rights, Ervin’s amendment would protect him from federal prosecution. The civil rights forces realized immediately what the amendment could mean for the bill, but in the confusion after the cloture vote, they were unable to rally opposition. The Senate took a roll call vote, and Ervin’s amendment failed by the slimmest margin, 47 to 48. At that point Talmadge withdrew his own amendment.26

  Then all hell broke loose. A recount showed that Ervin’s amendment had in fact won, by 49 to 48. But since Talmadge had withdrawn his amendment, Ervin’s was rendered moot. Order on the floor dissolved. Senators began shouting at each other, and at Mansfield. “The leadership seemed to be losing control of their forces,” noted John Stewart. Mansfield, deciding everyone needed time to “regroup, rethink, and recollect,” announced a recess just after noon.27

  Russell, dejected, ambled back to his office. Along the way he was joined by Clarence Mitchell, his putative foe and, needless to say, a leading representative of the race of people targeted by the bill. Mitchell, ever the good sport, praised Russell for leading a spirited fight; Russell, ever the gentleman, congratulated the civil rights leader on his victory. He also predicted that, if nothing else, his opposition probably helped the bill in the long run: unlike the Supreme Court’s Brown decision, which many in the South rejected as undemocratic, the civil rights bill would be accepted because the filibuster had demonstrated the extensive and rigorous democratic process.28

  The civil rights forces retreated to Humphrey’s office. The majority whip, after meeting with reporters and giving a brief on-air interview with NBC News, arrived feeling magnanimous toward Ervin—or at least pragmatic—and he urged that they find a way to accommodate his amendment without tearing the bill apart. The Department of Justice staffers present said they would see whether they could come up with compromise language, and departed. Senate protocol and notions of fair play toward Ervin aside, Humphrey’s performance post-cloture was making his aides nervous. “He seemed to be going out of his way to make it up to the southerners, who had been stung so badly with this overwhelming defeat,” Stewart noted. For the rest of the day, “he was giving sort of general promises that this or that amendment could be accepted, without checking the text of the amendments through, and put himself in several awkward positions.”29

  The next morning the civil rights forces regrouped in Humphrey’s office to work out a final deal on Ervin’s amendment. The Justice Department’s proposed new language limited the double jeopardy provision to “the laws of the United States,” thus cutting off the possibility of a racist state jury precluding federal action. They also decided to oppose all other major amendments unless the leadership of both parties agreed to put one to a vote.30

  That morning the Senate accepted four minor perfecting amendments by Jack Miller of Iowa, but by the afternoon the anti-amendment momentum was apparent. Twelve roll call votes on Southern amendments were taken, and the twelve amendments went down in flames. “By the end of the day,” Stewart noted, the Southerners “appeared to be quite dispirited and in a certain state of disarray.” The day ended just before 6:00 p.m.31

  The next several days devolved into a turkey shoot against Southern amendments. There was no order to the votes, and no sense of purpose to the proceedings—it was understood that the amendments would be defeated, and yet no one had the will, or the desire, to tell the Southerners to stop. Humphrey had decided to let them run out their rope, and that to stop them in the middle of their death throes would only damage his chances of repairing relations later on. “The best thing to do under the circumstances,” Raymond Wolfinger noted, “was simply to defeat amendments as they were brought up.” The result was a near-constant stream of roll call votes, with senators casting nay votes without even knowing what they were voting on. “The various Southerners would call up a particular amendment, yield themselves anywhere from 30 seconds to 2 minutes to explain the amendment, and then settle back for the vote,” Wolfinger wrote. Most of them were grandiose and unrealistic. Russell proposed an amendment to put the entire bill to a national referendum: “I appeal to those in this body who call themselves liberals to let the people vote”—a ridiculous position coming from a man who otherwise claimed to hold the republican tenets of the Congress just below the Ten Commandments. In any case, the amendment lost.32

  The dismal parade continued through the rest of the week, with eleven amendments going down on June 12 and nine more on Saturday, June 13. On Monday it was an even bigger rout, with fourteen amendments falling, and only one getting more than thirty votes. Robert Byrd offered an amendment to kill Title II, even as he admitted it would be “voted down just as indifferently, mechanically, and summarily as other amendments have been voted down, but that doesn’t mean that senators should roll over and play dead.” On Saturday afternoon, Ervin announced he was taking the rest of the day off to go catch a Senators game, where, he said acidly, “a man doesn’t strike out before he comes to bat and the referee’s decision is not made in advance.”33

  One amendment that was accepted, after some negotiation with the Department of Justice, was a proposal by Russell Long to strengthen the exemption for private clubs in Title II. It was a seemingly small change involving a handful of establishments, but one that would resonate through the next several decades across the Deep South as countless white-owned restaurants converted themselves into “private” establishments with nominal membership fees to keep blacks out.34

  By June 14 the Senate had covered only fifty-one of the six hundred proposed amendments. The Senate, so enthusiastic about seeing the light at the end of the tunnel on June 10, now sank into the realization that, as Michigan’s Pat McNamara said, “We are in another form of filibuster.” For most senators, the process had become one of automatically voting no, since the amendments were poorly explained, often incoherently technical, and against the wishes of both parties’ leadership. Most took the advice of Vermont Republican George Aiken, who said he voted against any amendment that a senator took thirty seconds or less to explain. “The Aiken rule is a wonderful one and I endorse it,” said John Pastore of Rhode Island.35

  Outside pressure was building, too; on June 15, in sweltering 95-degree temperatures, twelve hundred union and church demonstrators arrived from Ne
w York to urge an immediate end to the amendments and a vote on the bill. In a conscious reprise of the March on Washington, they listened to speeches at the Washington Monument, then passed through the offices on Capitol Hill, meeting with senators and presenting their demand that “no further crippling amendments dilute the civil rights bill as it is presently framed.”36

  The next morning, Russell brought the Southern Democrats together to try to force an end to the charade—it was, he said, embarrassing for the Senate, embarrassing for the South, and embarrassing for him, personally, as the faction’s leader. But again, the zealots won out, and the meeting ended with no agreement.37

  Hearing this, Mansfield decided, at long last, to press the button on his nuclear option. He had refused all entreaties from Johnson, his colleagues, and the civil rights community to go into extended days, in the hope that the goodwill generated by his restraint would bring the debate to an end faster. Now, he realized, he had no choice. “Harsher tactics” were necessary, he said, and on June 16 he launched the Senate on an epic run of thirty-four roll call votes in a single day.38

  By late afternoon the senators, for whom five roll call votes would normally have been a long day, needed a steady stream of alcoholic lubrication to keep going. “Senators began to get rather well oiled by frequent visits to their respective hideaways around the Capitol,” Stewart wrote in his notes at the end of the day. The scene, he wrote, “has been almost festive.” Dirksen, a well-known imbiber of both whiskey and gin, appeared particularly deep in his cups. Around seven o’clock, Eastland moved to adjourn for the day, drawing the support of Republicans Peter Dominick of Colorado and Edwin Mechem of New Mexico. Dirksen ran over to Dominick, “stabbed him in the chest with his forefinger, and said in the very strongest possible way, that Dominick would do what the leadership wanted,” Wolfinger observed. Then, seeing that Mechem had slunk out of the chamber, the minority leader sent a squad of pages to hunt him down. When the New Mexico senator returned, “Dirksen almost assaulted him,” telling him that he had to follow the leadership on procedural matters. “Then he literally took Mechem by the arm, dragged him under the desk, and said to him quite fiercely, change your vote. Mechem, quite reluctantly, did so.”39

  As the evening progressed, the scene in the Senate became as much about Dirksen’s energetic antics as it was about the bill itself. At one point Russell Long, who had promised the leadership that his amendment on private clubs would be his last, offered a sheaf of additional proposals. Dirksen exploded. Running over to Long, he yelled, “Goddammit, you broke our deal!” Dirksen inched closer to Long’s face, pointing his finger at his chest. “We should have never taken your amendment. Goddammit Russell, you broke your faith with us!” Finally Mansfield pulled Dirksen away. A few minutes later Dirksen came back to Long and apologized. The two shook hands, then hugged and walked out, presumably for a make-up tipple in Dirksen’s office.40

  Mansfield finally called it a day at 12:01 a.m., ending a marathon thirteen-hour session. In all, thirty-four roll call votes were taken, more than double the sixteen-vote record set in 1951. Fourteen of them were proposed by Thurmond, eight by Ervin, and seven by Long. As the evening was winding down, Russell decided the Southerners had done enough damage, and he hatched a plot with Lister Hill to make Thurmond, Ervin, and Long stand down. John Stewart, Humphrey’s aide, overheard the Georgian tell the Alabaman, “If you can handle that damn fool Strom, I’ll take care of Ervin and Long. Those guys are disgracing all of us and creating a great deal of resentment against us.”41

  Russell’s plan must have worked: the next day Humphrey sat down with Thurmond and Ervin and worked out a deal to bring the amendment roller coaster to an end that day, and move to a final vote on the nineteenth. But the agreement guaranteed another storm of amendments, and another long day: ten and a half hours, twenty-two amendments, with twenty-one defeats (one, a proposal by Long to protect fraternities from Title II, was accepted). When their amendments had run out, several of the most ardent Southerners burned the rest of their energy on long-winded speeches, including a forty-three-minute rant by Hill.42

  When they were done, Thomas J. McIntyre of New Hampshire, the presiding officer for the day, called for a vote on the last amendment: the Dirksen-Mansfield substitute (though Mansfield, in his typical modesty, insisted it be called the “Dirksen-Humphrey” substitute). It passed 76 to 18. “Take it easy and go home and get a good night’s sleep,” Mansfield said—advice that, coming at 9:30 p.m. after another long day of legislating, could be a comfort only to men who had just come off the longest filibuster in Senate history.43

  Though few knew it at the time, in the middle of the day Humphrey had received word that his son Robert, then back in Minnesota, had developed a malignant brain tumor and needed an immediate operation. Despite breaking down in tears before Joe Rauh and Clarence Mitchell, Humphrey decided to stay in Washington.44

  The morning of the eighteenth, with Edward M. Kennedy presiding, saw the rest of the Southerners unload their remaining time in heated, vitriolic attacks on the bill. Russell’s speech was mostly a postmortem of the Southern strategy against the bill, and an effort to take the high road after dropping so low during the filibuster. “We have sought to appeal to the sense of fairness and justice of the members of this body,” he intoned. “We made no secret of the fact that we were undertaking to speak in detail and at length in an effort to get the message across to the American people. We did not deceive anyone as to our purposes—”45

  “The time of the senator from Georgia has expired,” rang out a voice from the dais. Kennedy, among the least experienced and youngest members of the august Senate, had just cut off one of its most venerable.

  Russell turned and glared. “I express the hope that those who are keeping the time will apply the same rules to others which they have applied to me,” he said, and asked whether Humphrey had been given extra time during a June 17 speech.

  “The senator from Minnesota was charged with nine minutes,” Kennedy replied.

  “I am glad to hear that,” Russell said venomously, and sank into his chair.

  At one point an eighteen-year-old onlooker named Jerry Lester Cochran unfurled a flag with a swastika on it and shouted from the gallery, “We have betrayed the white majority! Only Rockwell can save us now”—a reference to George Lincoln Rockwell, the head of the American Nazi Party. He was quickly removed by attendants and, as protocol demanded, taken to a hospital for “observation.”46

  The biggest story of the day, however, was Barry Goldwater—now, after winning the California primary, the presumed Republican presidential candidate—and whether he would back the bill. “Rarely has one man’s vote been watched so closely as Barry Goldwater’s on the civil rights bill,” wrote Time magazine. That afternoon he announced that he would vote nay. “I am unalterably opposed to discrimination or segregation on the basis of race, color, or creed, or on any other basis,” Goldwater said. But he could not vote for the bill, because he believed that Titles II and VII represented “a grave threat to the very essence of our basic system of government.” Enforcement would require “the development of an ‘informer’ psychology in great areas of our national life—neighbors spying on neighbors, workers spying on workers, businessmen spying on businessmen—where those citizens for selfish reasons will have ample inducement to do so.”47

  Goldwater’s opposition came as little surprise to some, but others, particularly in his own party, had hoped that the pull of presidential politics would work magic on his misgivings. Up to the last minute, Jacob Javits had been lobbying Goldwater to support the bill, for the party’s sake. According to the columnists Rowland Evans and Robert Novak, Javits sent reams of memos to Goldwater’s office underlining the bill’s constitutionality. “It is now clear,” the New York Republican said on the Senate floor just before Goldwater rose to speak, “that the mainstream of my party is [in] support of this bill.” Others took a hard-line approach, charging that right-wing opposition
to the bill, grounded in allegedly race-neutral principles of civil liberties and states’ rights, was no better than the open racism of the Southern Democrats. But Goldwater was unmoved. “If my vote is misconstrued, let it be, and let me suffer its consequences,” he said unhelpfully. “Barry, this is a dreadful mistake,” said Javits after Goldwater had finished.48

  Of course, Goldwater may also have been playing to the Southern vote; he had deep ties with Southern businessmen and politicians, and he had been saying for years that the GOP should do all it could to win Southern votes. Many Southern Democrats, in turn, welcomed him. “If he opposes this bill he could carry most of the South,” said Allen Ellender of Louisiana. “I have not thought Goldwater could beat President Johnson but if he votes against this bill he is going to give the president a tough battle.”49

  June 19 opened with a quick vote on a motion by Al Gore Sr. to send the bill to the Senate Judiciary Committee, on the grounds that it had not yet received a thorough, legal examination from the upper chamber. There was a time when Gore’s motion might have gotten traction, if only because the leadership thought he was one of the Southern Democrats who might “go Vandenberg” and switch sides. But Gore was facing a tight reelection campaign, and there was little to be gained by currying his favor—especially since the bill was now safe. His motion failed overwhelmingly.50

  Then it was simply a matter of final speeches from the leadership. Humphrey discussed the long, hard slog that brought them to that day. “I doubt whether any senator can recall a bill which so tested our attitudes of justice and equity,” he said. Mansfield came next, praising Dirksen and Humphrey, but most poignantly, President Kennedy. “This, indeed, is his moment,” the majority leader said. Finally, Dirksen rose to explain once more his transit from opponent to full-throated supporter of the bill. It must pass, he said, “if we are to honor the pledges we have made when we held up out hands to take an oath to defend the laws and carry out the Constitution of the United States.” He concluded, “I am prepared to vote.”51