As the summer of 1963 wound down, hope was in the air that Congress was at last beginning to catch up.
PART TWO
THE HOUSE
5
A Compromise Between Polar Positions
TUESDAY, JULY 2, 1963
ON THE SAME DAY that the civil rights leaders met in New York to plan the March on Washington, Burke Marshall flew to Dayton, Ohio, for a crucial meeting on the long march to passage of H.R. 7152. Marshall was reserved to the point of shyness (he had sat in virtual silence through much of his job interview with Bob Kennedy) but that very diffidence, combined with a piercing intelligence, made him a superb negotiator, as his experience with the feuding camps in Birmingham two months earlier had proved.
This morning, Marshall’s quarry was Representative Bill McCulloch, the ranking Republican on the House Judiciary Committee. McCulloch was an important member of Congress, but in the custom of the day, he still kept his hometown law office in Piqua, twenty-eight miles north of Dayton, and had agreed to a meeting with the assistant attorney general to review the bill. McCulloch’s son-in-law David Carver met Marshall at the Dayton airport and then escorted him to a long lunch at the local country club while McCulloch addressed a meeting of Piqua’s Rotarians. “Bill had an engagement, but he also wanted it clear that he was not at Marshall’s beck and call,” Carver would recall. Marshall could play the same game; at one point on their meandering tour of the Miami Valley, Marshall spotted a hardware store and told Carver to stop the car. “I need some nails,” he said, went in, and returned with a sack to tuck in his briefcase.
When it was at last time for the meeting, Marshall trudged to the second floor of the Piqua National Bank Building, where McCulloch’s comfortable office was advertised with Sam Spade–style letters painted on the window, proclaiming the name of his firm: McCulloch, Felger, Fite and Gutmann. The sole decoration was a framed copy of an excerpt from Edmund Burke’s letter to the electors of Bristol, in which he had declared: “Your representative owes you, not his industry only, but his judgment; and he betrays, instead of serving you, if he sacrifices it to your opinion.”
Judgment was precisely what Bill McCulloch had been delivering to the voters of Ohio’s Fourth Congressional District since 1947. In many ways, he was a conventionally conservative Republican, an avatar of fiscal probity with consistently low ratings from the liberal group Americans for Democratic Action and equally high ones from its conservative counterpart, Americans for Constitutional Action. He supported school prayer and gun rights, opposed foreign aid and federal involvement in education. “There is no such thing as easy money from Washington,” he declared during his 1948 campaign, adding, “If you expect to measure your Congressman’s ability by what money he can get from Congress, I would rather not be returned.” He was among the few members of Congress who never spent his entire office allowance, but instead returned the excess funds to the government.
But despite the fact that the population of his district was less than 3 percent black, McCulloch had also long been an avid supporter of civil rights, though he preferred the term “equal rights,” his daughter Ann Carver would recall, paraphrasing the Constitution’s guarantee of “equal protection” of the law. He liked to observe, “The Constitution doesn’t say that whites alone shall have our most basic rights, but that we all shall have them.” On January 31, 1963—four and a half months before John Kennedy’s speech to the nation—McCulloch had introduced his own civil rights measure in the House. He described it as “a comprehensive bill, which seeks to advance the cause of civil rights in the United States,” adding, “At the same time, however, it is a bill keyed to moderation. And the reason for moderation is obvious: We members of the Republican Party are honestly desirous of proposing legislation which stands a chance of enactment. Anyone, of course, can introduce grandiose legislative schemes. But reaching for the sky, rather than aiming for the possible, is a form of showmanship we don’t wish to engage in. Reality is what we live by and accomplishment is what we seek. For only in compromise, moderation and understanding are we able to fashion our society into a cohesive and durable structure.”
As the spring wore on, however, the House Judiciary Committee chairman, Emanuel Celler, had yet to schedule a single hearing on McCulloch’s measure—or on any of nearly ninety similar Republican-backed bills, including the one from New York’s John Lindsay that would become such a contentious topic during Robert Kennedy’s testimony in June. So McCulloch was more than ripe for Burke Marshall’s appeal on this July day. But he had two strict conditions.
First, McCulloch told Marshall that he expected the administration to support a strong but practical bill, one that could pass the full House, and then to fight for that very same bill in the Senate, without accepting amendments that would weaken its impact or effectiveness. McCulloch had supported the 1957 and 1960 civil rights bills, only to be dismayed when their toughest provisions—including Part III of the 1957 bill—were bargained away in the Senate. If Kennedy’s new bill suffered a similar fate, he warned, House Republicans would oppose it when it came back to the House for approval—and no civil rights bill could pass either house without substantial Republican support. Second, McCulloch wanted the White House not to exploit the bill for partisan advantage, but to give full and public credit to the bill’s Republican supporters as well.
Marshall accepted McCulloch’s terms, and an improbable alliance was born. But the terms were tough, and it is hard to overstate the impact that McCulloch’s demand for an uncompromising bill would have on all the subsequent legislative strategy and debate. His insistence on no softening of the measure in the Senate—and his undoubted ability to deliver Republican votes for or against the bill—all but assured that the administration would have to attempt something that had never before succeeded in American politics: to break a civil rights filibuster in the Senate, rather than avoid one by watering down the bill. The administration had by no means settled on such a strategy by the time of Marshall’s meeting with McCulloch. It would be lucky for John Kennedy—and for his bill—that this single strong-willed, small-town lawyer also happened to be the most fair-minded of men.
* * *
WILLIAM MOORE MCCULLOCH WAS born in 1901, to a Scots American family that had been abolitionists before the Civil War. He was raised on the family homestead in Holmes County, attended one-room schools, and then rode off on his bicycle to seek his college education at the nearby College of Wooster before earning a law degree from Ohio State University. After graduation, he taught school for a year before moving to Jacksonville, Florida, where he began the practice of law—and first witnessed the day-to-day realities of Jim Crow segregation. He returned to establish a thriving law practice in Piqua and steadily rose in local politics, first winning election to the Ohio House of Representatives, then serving as its minority leader before becoming speaker in 1939 when the Republicans took control. His ability to win the trust and respect of colleagues from both sides of the aisle earned him the nickname “the red-headed lion,” and he lived modestly, commuting almost daily the ninety miles from Piqua to the state capitol in Columbus. In 1943, he enlisted in the Army at age forty-two—well beyond the potential reach of the draft—and served almost two years in the European theater as a captain.
At the war’s end, when leaders of Piqua’s local NAACP chapter determined to integrate the local bus station’s lunch counter in the Favorite Hotel, across the street from McCulloch’s office, it was McCulloch to whom they turned in case legal help should be needed. But the owner promptly desegregated the establishment in response to the NAACP’s demands, and McCulloch’s aid was not required. Nevertheless, he maintained regular contact over the years with the local NAACP activists, Emerson and Viola Clemens, sending them copies of the Congressional Record, consulting them on race-related questions, and inviting their daughter, Colleen, to socialize with his own two daughters, Nancy and Ann.
A frugal man of simple tastes, he favored red suspe
nders and loved pumpkin pie (served with cold turkey gravy at the local Elks Club). After his election to Congress, he was apt to be seen stuffing his own campaign literature into envelopes for mailing, or sending literature on the care and feeding of infants to new mothers in his district. He worked seven days a week, employed an office staff of one or two, and returned home to Ohio every June to make the rounds of the seven counties in his district, borrowing a room in each local courthouse where he kept office hours and open house for his constituents, a pencil always ready in his shirt pocket for taking notes. He drove fast but eschewed official congressional license plates, pulling them out of the glove box only if he was stopped for speeding as he made his rounds. “He was very frugal,” his daughter Ann recalled. “He was really a Scotsman.” McCulloch once wrote a constituent, “I have never spent nearly as much in an election campaign as my salary as a Congressman has been, and I do not propose to do it now or in the future.”
One of his favorite phrases, with family or friends, was “Are you sure?”—as if by testing their assumptions, he might test his own. He liked a martini, but his limit was one. “If I ordered a second drink, I would get a look or an ‘Are you sure?’” his son-in-law David Carver, Ann’s husband, would recall. McCulloch was a director of a local bank in Piqua, and as such reviewed the list of overdrawn depositors at each monthly meeting. Carver’s name once turned up on the list, and McCulloch put $200 into his account but warned him, “I will call it but you won’t know when, so don’t spend it.”
On most matters, McCulloch was right in sync with his district. But on civil rights, especially, he was leading the way. “His constituents were very conservative,” one of his young administrative assistants, Joe Metz, would recall. “He was teaching them, too.” His reasoning was simple: “How can one oppose these clear mandates of the Constitution?”
McCulloch had an unusually nuanced and thoroughly considered view of his job. “The function of Congress is not to convert the will of the majority of people into law; rather its function is to hammer out on the anvil of public debate a compromise between polar positions acceptable to a majority,” he would tell his House colleagues on the eve of his retirement in 1972, contrasting their work with the direct democracy of a town meeting, in which one position always prevails and the other loses. “In a republic, representatives vote for the people. There is discussion and debate. There are amendments. There is opportunity for compromise. It is less clear that there is a losing side.”
* * *
MCCULLOCH’S DEMOCRATIC COUNTERPART ON the Judiciary Committee, chairman Emanuel Celler, could hardly have been more different—though the two had by this point served on the committee together for sixteen years and, with their wives, were good friends. Celler, a scrappy, balding, bespectacled lawyer from Brooklyn, had first been elected to Congress during the Harding administration, and by 1963 he was the second-longest-serving member in the House. (A half century later, he would still rank as the fourth-longest-serving member in history.) The grandson of German Jewish immigrants, he had been a tireless crusader for civil rights and liberalized immigration policies—in an era when Congress had imposed strict nation-of-origin quotas intended to reduce immigration from Southern and Eastern Europe, thus excluding many Jews and Catholics. In Brooklyn, his law practice prospered through his sponsorship of private bills—special legal exceptions tailored to individual needs—for immigrants. But on the national scene, he was a fierce liberal who had vigorously battled Senator Joseph R. McCarthy, accusing him at the 1952 Democratic Convention of “undermining the faith of the people in their government” and of seeking to “sow suspicion everywhere, to set friend against friend and brother against brother.”
Yet the very differences between Manny Celler and Bill McCulloch now allowed for a most unusual division of labor—one that would produce serious short-term strains and stresses for their friendship, and for H.R. 7152.
Throughout that summer and into the fall, the conservative McCulloch would become the Kennedy administration’s strongest friend on the civil rights bill. In a series of secret back-channel meetings with Nick Katzenbach, Burke Marshall, and the lawyers at the Justice Department, he would work to make sure that H.R. 7152 could draw enough Republican support to pass the House and survive the Senate. Among the kinds of changes McCulloch sought were provisions to make the bill more palatable to northerners. So, for example, he proposed to alter the section of the bill dealing with public school desegregation, to permit the federal government to give technical and financial assistance to help local school boards address problems of desegregation, but not to address problems of racial imbalance in schools in neighborhoods that happened to be heavily segregated. Such a move meant the bill would bar legal segregation in the South while accepting de facto segregation in the North.
Given Congress’s instinctual resistance to anything that might smack of interference in its prerogatives by the executive branch, and the Kennedy administration’s understandable wariness about Republican motives, the alliance with McCulloch was unorthodox, to say the least. It was born of necessity, but it bore fruit.
“The negotiations were essentially between Nick and Burke and McCulloch,” recalled David Filvaroff, who arrived in the Justice Department as a young aide to Katzenbach in the fall of 1963. “He was very reasonable. He cared about one thing: When others would stand up and talk about a Kennedy power grab leading toward dictatorship, he would stand up and say, ‘This is a reasonable, moderate bill,’ and you could just see all the air go out of the other side.”
“Bill McCulloch became the conscience of the bill,” recalled Robert Kimball, the legislative aide to Representative John Lindsay. “He was so respected because he wasn’t an ideologue. If he took a position on something, he brought along a lot of colleagues.”
If McCulloch was now the administration’s improbable insider, it fell to Manny Celler to placate the outsiders—the Leadership Conference on Civil Rights and other activist groups—and his own liberal colleagues, many of whom remained skeptical of the Kennedy administration’s commitment to the cause and wanted to strengthen the bill. Their strategy was to present the Senate with a maximalist piece of legislation, so that even if parts of it had to be bargained away (as they assumed would happen), what remained would be as far-reaching as possible. They were not privy to the deal that Marshall and McCulloch had struck, forswearing any watering down of the bill in the Senate.
Instead, liberal House members and the civil rights groups had begun to get wind of McCulloch’s quiet cooperation with the administration and were determined to counter what they assumed would be his weakening influence.
So all through July, as Sam Ervin continued his courtly torture of Robert Kennedy before the Senate Judiciary Committee, and as the Senate Commerce Committee heard from such hostile witnesses as Ross Barnett and George Wallace (who predicted that the civil rights bill would “destroy free enterprise”), Celler welcomed a parade of liberal stalwarts to his own hearings of the House Judiciary subcommittee he chaired and ran personally, known as Subcommittee No. 5. These included George Meany, the leader of the AFL-CIO; Joseph Rauh, the veteran civil rights lawyer who had drafted Franklin Roosevelt’s original executive order on fair employment practices; Norman Thomas, the perennial Socialist Party presidential candidate; and Walter Fauntroy, the Southern Christian Leadership Conference’s Washington representative. They all testified as to the ways in which H.R. 7152 could and should be made stronger. By Friday, August 2, the subcommittee had held twenty-two days of hearings and compiled some seventeen hundred pages of testimony.
At times, even Celler had his limits. When James Farmer of CORE testified before the committee in late July, he advocated strengthening the bill’s first section, on voting rights, to make it apply to state elections as well as federal ones. Celler lectured him, “That was left out deliberately, not on principle but on expediency. It would be very difficult to get the bill through, the whole package through, if we had su
ch a provision.”
“When we ask for one half of a loaf,” Farmer rejoined, “we get one quarter of a loaf. We ought to ask for what we want and then fight for it.”
For the civil rights groups, this was the crux of the matter. And ultimately, Celler could not resist his fellow liberals’ entreaties or their increasingly sharp attacks. When the detailed “markup,” or subcommittee drafting, on H.R. 7152 began in earnest in closed hearings on Tuesday, September 10, Celler presided over a process in which the Kennedy administration’s bill would be steadily strengthened. He himself offered an amendment to broaden the bill’s voting rights provisions, by accepting proof of a sixth-grade education as de facto qualification for voting in any state with a literacy test. Representative Robert Kastenmeier of Wisconsin proposed to have the bill cover state and local elections—the very measure that Celler had scoffed at James Farmer for suggesting just weeks before. And though a Gallup poll, released around this same time, found that 50 percent of the country believed that the president was moving too fast on civil rights, outside events would soon strengthen the liberals’ hand further.
* * *
ON SUNDAY, SEPTEMBER 15, A bomb planted at the Sixteenth Street Baptist Church in Birmingham took the lives of four little girls in their Sunday school best. Police gunfire in response to rock throwing by an angry crowd of black youths left a teenage boy dead, and yet another black teenager was killed when a white Eagle Scout who had just attended a segregationist rally fired on him without provocation. Birmingham was already in turmoil that fall, because of George Wallace’s defiant resistance to a court order that blacks be admitted to three public schools there, and in the wake of the bombing another round of full-scale rioting erupted, leading Martin Luther King to plead with the White House once again for federal intervention.
An Idea Whose Time Has Come: Two Presidents, Two Parties, and the Battle for the Civil Rights Act of 1964 Page 14
