Celler was not happy, as Burke Marshall would recall. “He thought he was being scolded and he was being scolded,” Marshall said. “He did resent it at the time. But then, I think, he finally came around and accepted it.” He also agreed to sit down with McCulloch and the Justice Department lawyers to forge a bill that would meet everyone’s requirements.
The attorney general was willing to play his painful part, too, by making a return pilgrimage to the Judiciary Committee. There, on Tuesday, October 15, he testified (in executive session, whose gist quickly became public) in favor of a scaled-back bill. “Differences as to approach and emphasis must not be permitted to be escalated into the arena of politics—or else the country will be the loser,” he said. He ticked through a point-by-point analysis of his objections to the amended bill—twenty-six pages of prepared testimony in all—suggesting the adoption of revisions that had already been quietly agreed to by McCulloch, Celler, and the lawyers at the Justice Department.
Together with Marshall and Katzenbach, Celler and McCulloch had done their best to remove the most objectionable provisions in the subcommittee bill—effectively rewriting H.R. 7152 behind the scenes. The negotiators agreed to apply the voting rights provisions of Title I only to federal elections, as originally envisioned, and not to state and local contests, as the liberals wanted. They scaled back the public accommodations section to accede to McCulloch’s wishes that personal service firms such as law firms and medical practices not be covered. And they deleted completely the broad powers that would have allowed the attorney general’s intervention in almost any civil rights matter.
In his testimony to the Judiciary Committee, Bob Kennedy now summed up his views on these changes, focusing on the provision that would give the attorney general sweeping powers of intervention. The civil rights groups had intended this provision as a means of protecting demonstrators like the Freedom Riders. Kennedy countered that giving the federal government such power might encourage state and local authorities to abdicate their own responsibilities, “thereby creating a vacuum in authority which could be filled only by Federal force.” As he left the hearing room, Kennedy told waiting reporters, “What I want is a bill, not an issue”—just the opposite of the dismissive formulation that his brother had used in deriding the high-minded purism of the liberal groups.
The next morning, continuing the agreed-upon ritual, Celler announced that he, too, had changed his mind and would support a scaled-back bill. Predictably, the civil rights groups hit the ceiling. Clarence Mitchell of the NAACP called it a “sellout,” and he was especially irked that Robert Kennedy had testified in closed session. “Everybody in there is a white man and what they are doing affects ten percent of the population that is black,” he said. James Farmer allowed that such “political expediency brought me to the point of nausea.” The Leadership Conference on Civil Rights said that the attorney general’s action was “almost as if Birmingham hadn’t happened.”
What the liberals saw was compromise and surrender. What they could not appreciate—in part because of the mutual mistrust that had built up—was the Kennedys’ hard-headed determination to produce a bill that could pass the House, by any means necessary. And even as Bob Kennedy ate his plate of crow, still more trouble was brewing behind the scenes to pose a threat to the bill.
On Friday, October 18, three days after Kennedy’s testimony, J. Edgar Hoover—perhaps emboldened by the attorney general’s authorization of the wiretap on Martin Luther King—issued a top-secret memo detailing King’s contacts with Stanley Levison and other alleged Communist-influenced figures, real or imagined, and added a scathing, vituperative attack on King’s character. The FBI director sent copies not only to the president and attorney general, but also to the secretary of defense, the CIA, and the military intelligence services. “It was a very explosive document, in the sense that it was at the time the bill was before Congress,” Burke Marshall would recall. Bob Kennedy promptly ordered Hoover to recall all existing copies, including the attorney general’s own. But the damage had been done. The memo had gone “all around the damn place,” Katzenbach would remember, and had shocked generals and senators alike. On October 21, the attorney general approved additional electronic surveillance of the Southern Christian Leadership Conference’s headquarters in Atlanta.
* * *
EVEN BEFORE BOB KENNEDY’S pilgrimage to the Judiciary Committee, Manny Celler had agreed to get the process of revising the bill rolling with an amendment to restrict the bill’s voting rights provisions to federal elections. To offer this measure he had handpicked Representative Roland “Libby” Libonati, a stalwart member of Mayor Richard J. Daley’s Chicago Democratic machine—and a onetime lawyer for Al Capone—who could usually be counted on to follow the party line. When the full Judiciary Committee met on the morning of October 10, Libonati made his motion, as arranged. But for procedural reasons, the committee was forced to adjourn before a vote could be taken. That gave Bob Kastenmeier—the liberal author of the proposal to extend coverage to state elections in the first place—a chance to block Libonati’s move.
Kastenmeier enlisted the help of Representative William Dawson, the dean of Chicago’s Democratic delegation and one of only five black members of Congress. Dawson promptly lobbied Libonati to change his position. Libonati had his pride and did not want to look like anybody’s stooge, especially if he was one. His resolve was further softened when he happened to catch a television appearance in which Manny Celler, his own pride on the line, continued to insist for public consumption that he would resist efforts to weaken the bill. That was enough to push Libonati over the edge.
“I’m watching television and who do I see on the television but my chairman,” Libonati complained. “And he’s telling ’em up there in his district that he’s for a strong bill, and he doesn’t have anything to do with any motion to cut the bill down. So when I hear that, I says to myself, ‘Lib, where are we at here, anyway?’”
So when the Judiciary Committee reconvened nearly two weeks later on the morning of Tuesday, October 22, with Libonati’s pending motion as the first order of business, he promptly withdrew it. Complete chaos ensued in the hearing room, as liberals and conservatives on the committee jockeyed over what to do next. Some southerners wanted to send the whole bill back to the subcommittee. That so angered liberals that they threatened to simply report the sweeping bill passed by Subcommittee No. 5 to the full House.
At last, Representative Arch Moore, a pro-civil-rights Republican from West Virginia, grew so disgusted by all the maneuvering, and by Celler’s failed Kabuki dance, that he moved to send the strong subcommittee bill to the full House with a favorable recommendation—the course the administration and Bill McCulloch most feared, because they believed that this version of the bill could never pass. “The shame of our times,” Moore said, “is that the subject of civil rights” had been “made the butt of political opportunism” in Congress. “The committee chairman was forced to label the subcommittee bill ‘drastic,’ irrespective of the fact that it was his bill. Amendments were offered and withdrawn. Signals were called and then missed.”
Manny Celler was trapped. He knew that Moore had enough votes to prevail, simply because the liberal Democrats on the committee would be happy to join in supporting the measure the civil rights groups most wanted, while the southern Democrats would be glad to conspire in reporting out a bill they believed was doomed to failure on the House floor. Only the sound of the noon bell—which meant that the full House was in session and, following the custom of the day, committee meetings had to be concluded—spared Celler immediate defeat. The chairman set the committee vote for one week hence, on October 29. The Kennedy administration would live to fight another day—and it was President Kennedy himself who would have to do much of the fighting.
* * *
THE PRESIDENT’S FIRST STEP was to summon the bipartisan House leadership to a meeting in the Cabinet Room just after 6:00 p.m. on Wednesday, October 2
3. Speaker John McCormack and Majority Leader Carl Albert; Charles Halleck and his minority whip, Les Arends of Illinois; and Celler and McCulloch joined the president, the vice president, the attorney general, Katzenbach, and Marshall for a freewheeling two-hour meeting that veered between angry griping by the Republicans and recurrent attempts at strategizing by a charged-up president.
Halleck had met earlier that day with the Republicans on the Judiciary Committee and had gotten an earful of their discontent. “I think it’s only fair to say that this damned thing has gotten all fizzled up and fouled up, into where some of the guys on our side who are normally pretty steady-going … they’ve got themselves all boiled up,” he told the president.
Kennedy was sympathetic but noted that he, too, had taken heat—from the liberals and civil rights groups—and volunteered to lobby Judiciary Committee members himself. “I’ll say we get the Democrats together and say that I think you’re crazy, and that you’re going to bear the responsibility for no bill if you follow this course,” the president said to Halleck. “If we do that, it seems to me, you can get your people.” A few moments later, McCulloch acknowledged, “Well, I don’t think we’re too far apart.” That excited the president, who exclaimed, “My God! I could sit … we could do this thing,” but Halleck and his Republican colleagues quickly insisted the matter was not so simple.
“Hell, you see, Mr. President,” Halleck explained, “there’s been a feeling among a lot of our guys, Manny’s subcommittee—and I don’t know whether he is responsible or not—but they loaded this thing up, way beyond anything you asked and way beyond anything we ought to do. And then the feeling got abroad that we were supposed to be the goats. We are supposed to go ahead and emasculate the damned thing.”
At this, Kennedy interrupted to say, “No, we’ve done that, we’re the goats.” The president went on, offering to make Halleck’s job easier by first persuading a majority of Democrats on the committee to accept a bill more like the original one, so that Halleck could assure his fellow Republicans that the Democrats would share the blame. He pressed for action as soon as possible.
But Halleck and McCulloch had to vent a bit more. At one point, McCulloch interjected that he and his angry colleagues believed he had been “taken for a ride” by Celler’s actions in the subcommittee, while Halleck insisted that the president had more power over the wayward Democrats than he did over his Republicans. “You’re in a damn sight better position to work yours over than I am to work mine over,” Halleck said, prompting laughter all around.
In the end, Kennedy proposed a compromise: if he could get a majority of Democrats on the Judiciary Committee “who are willing to take the heat, and a majority of you fellows do, that’s a reasonable position.” Halleck countered that he would try to produce seven Republican votes—half the party’s membership on the committee—to block Arch Moore’s motion.
As the meeting broke up, Katzenbach, Celler, and McCulloch agreed to meet the next morning in Katzenbach’s office to go over the outlines of a compromise agreement, and Halleck promised to poll his members and get back to Kennedy with a tally by noon the next day. Joining his friend Ben Bradlee for dinner in the upstairs residence a few minutes later, Kennedy complained that “trying to touch Charlie is like trying to pick up a greased pig.” But he acknowledged in the next breath, “It’s a lousy bill as it now stands.”
At the urging of Lyndon Johnson, Kennedy agreed to meet with the northern Democrats on the Judiciary Committee the next morning (the southerners being a lost cause) to try to sell them on a compromise. He did so despite the misgivings of Larry O’Brien and others, who worried that “the president’s personal prestige would be so much on the line if it didn’t work,” as Burke Marshall would recall. So on that Thursday, October 24, the Democrats, escorted by Celler, arrived in secret at the Diplomatic Entrance of the White House for their meeting with Kennedy. “We want to pass something,” the president told them. “We sympathize with what you’ve done, but we can’t pass the bill in its current form.”
One member, Representative George Senner of Arizona, spoke up to say, “We’re with you, Mr. President,” but there was no stampede to second him because, without an agreement from Halleck and McCulloch, Kennedy still had no clear alternative to give to the liberals. The meeting broke up without any definitive result.
Meantime, the noon deadline for the report from Charlie Halleck came and went with no call, until finally a nervous Kennedy himself telephoned the minority leader at 12:45 p.m. “Mr. President, I’m terribly sorry,” Halleck explained. “I had a hard time catching a couple of my fellows but I just talked to the last one … I was just about to call you with good news—I’ve got you the votes to get your bill out of the committee.”
* * *
KENNEDY WAS DELIGHTED, BUT the challenge remained to fashion a substitute measure that would eliminate the most objectionable parts of the subcommittee bill while retaining enough teeth to attract the wavering liberals. In that effort, the work of Bill McCulloch and Nick Katzenbach would be crucial.
McCulloch knew that before he could reach any accommodation with Celler and the Democrats, he first had to resolve his own differences with the liberal Republicans on the Judiciary Committee, especially John Lindsay, the ambitious, charismatic New Yorker who was already in search of bigger things. Lindsay was not a member of Subcommittee No. 5, but McCulloch liked him and had arranged for him to join in the subcommittee’s deliberations, so he was conversant with all the discussions on the bill. If Lindsay and the other Republican liberals on the full Judiciary Committee did not have an acceptable alternative, they were now all but certain to vote to send the strong bill to the floor.
So on Friday, October 25, McCulloch asked his staff counsel, William Copenhaver, to seek out Lindsay’s aide, Robert Kimball, to ascertain what Lindsay might be willing to accept in terms of a compromise. The answer was that Lindsay so distrusted the administration that he was unlikely to accept any deal. But the two aides promised to keep talking, and by Sunday, Lindsay himself agreed to come to McCulloch’s office in the New House Office Building where the Ohioan had been working through the weekend, as usual. Together with Copenhaver and Kimball, they went through the bill section by section and, each by turns giving the other concessions on language and substance, managed to resolve their differences. Lindsay was especially gratified that McCulloch had agreed to accept a strong public accommodations measure.
Now it remained to reach agreement with the administration, and in the meantime, Nick Katzenbach had an inspiration of his own. Knowing how important a strong Equal Employment Opportunity Commission—the so-called FEPC provision that the White House had omitted from its own original bill—was to liberals who wanted teeth in the bill to fight employment discrimination in the private sector, Katzenbach turned to an old friend from New Jersey, Representative Frank Thompson, a Democratic member of the House Education and Labor Committee, to ask he if had any ideas. Thompson wondered whether Katzenbach had considered a Republican-sponsored measure that the labor committee had earlier approved, which would require any fair employment practices commission, if it wanted to force action, to do so in federal court, where both labor and management would be entitled to a trial, and not by administrative action. Such a measure would split the difference between having a commission that could merely oversee government contractors (as the administration had proposed) and one that could unilaterally force action on private industry (as the liberals on Subcommittee No. 5 had wanted).
Katzenbach floated the idea with McCulloch, who liked it. It was, after all, a Republican-sponsored idea, and so it should not cost any Republican votes, while it might yet sway a wavering liberal or two to support the scaled-back bill. (McCulloch did warn Katzenbach, though, that Charlie Halleck, who had long been notoriously wary of fair employment laws, might not accept the proposal.)
On Monday morning, October 28, just a day before the scheduled vote, Katzenbach met with McCulloch, Copenhaver, an
d Kimball in a secret rendezvous in Room 410 of the frayed Congressional Hotel on Capitol Hill, where Kimball kept an apartment, to go over the proposed compromise, including the new FEPC provision. The revised bill was weaker than the Subcommittee No. 5 version but a good deal stronger than the administration’s original bill. The result: the voting rights section was limited to federal elections only; the public accommodations section would cover hotels, sports stadiums, theaters, and restaurants, but not barbershops and beauty parlors; the public facilities section dropped the provision that would allow the attorney general sweeping powers to file suit to desegregate parks, libraries, and the like, allowing him only to intervene in suits already filed by others or when he received written notice that an aggrieved person could not sue for lack of funds or fear of personal harm; and the section on discrimination in federally assisted programs restricted the government’s ability to cut off funds for noncompliance.
* * *
WITH THE COMMITTEE VOTE looming the next day, it now remained for the president himself to put the screws to the Judiciary Committee’s northern Democrats one last time. He did so at four o’clock on Monday afternoon in yet another meeting at the White House, where he polled them one by one. Kennedy knew he needed ten Democratic votes and could so far count on only three: Celler; George Senner, the Arizonan who had expressed his support in the meeting the previous week; and Harold Donohue, an old comrade from Massachusetts. Two more were likely: William St. Onge of Connecticut, who was hospitalized and had given his proxy to Celler; and Jack Brooks of Texas, a close ally of Lyndon Johnson’s. That meant the president needed at least five more votes, and as he went around the Cabinet room, the results were mixed.
An Idea Whose Time Has Come: Two Presidents, Two Parties, and the Battle for the Civil Rights Act of 1964 Page 16
