* * *
FROM THE OTHER END of Pennsylvania Avenue, Lyndon Johnson wasted no chance to press the case for H.R. 7152, even with such an implacable foe of the bill as Senator Robert Byrd of West Virginia, a former Ku Klux Klan member who was otherwise a staunch Johnson ally and had supported him in the 1960 presidential race. On April 10, Byrd sought Johnson’s support for a candidate for a federal judgeship in West Virginia—a Byrd ally who was thought to be too old for the job and had been deemed not qualified by the American Bar Association’s screening panel. Byrd reminded Johnson of his long loyalty, then added, “The only thing I won’t go along with, Mr. President, you and I have already discussed, and that’s the civil rights bill.”
“Well, you don’t have to go along on it,” the president replied. “But make them vote on it. Don’t let them keep me up there on the vote, damn it.”
“Oh, no, no,” Byrd rejoined. “No, sir. I wouldn’t make them vote on it, because I know if they vote on it, they’re going to get it.” Johnson chuckled as Byrd went on, “And if a man starts to come in my house, if I can’t beat him with my fists, I’m going to take a poker to him. So the only way we can win here is not to let them vote.”
“I don’t pass that bill, they’ll beat me,” the president complained, adding: “I might send you off on a tour or something, some of these days, before they vote cloture … I don’t want you to—”
But Byrd interrupted, “I wouldn’t leave Dick Russell for all the tours in the world.”
10
Alternatives and Substitutes
MONDAY, APRIL 13, 1964
AS THE FILIBUSTER DRAGGED on, the pro-civil-rights forces grew increasingly worried about the prospect of Everett Dirksen’s promised amendments. At the bipartisan floor leaders’ group meeting this morning, Joe Rauh questioned Stephen Horn about the status of Dirksen’s proposals. “Keep smiling,” Horn counseled. Humphrey arrived late for the meeting, but announced that he had talked Dirksen down from some seventy amendments to about fifteen. Clarence Mitchell warned that if Dirksen’s amendments prevailed, “it will be a disaster. There will be a Negro revolution around the country.”
“We don’t plan on letting them pass,” Humphrey reassured him. “Don’t you break out in a sweat, Clarence.”
By this point, tensions were rising between Mitchell and Rauh and their colleagues in the Leadership Conference on Civil Rights—who wanted the strongest possible bill—and Humphrey and his fellow legislators, who wanted the strongest possible bill that could pass. Their joint Monday and Thursday meetings took on the air of a shadow play, because Mitchell and Rauh well knew that Humphrey and the other senators and their aides were making the real decisions, and sharing their deepest concerns, only in their own private meetings. “The worst thing they can do with me is tell me what to do,” Humphrey said of the civil rights groups around this time. “I want a bill. I think I’m smarter than they are. You can’t give people blood tests every fifteen minutes” on the purity of their civil rights support.
Humphrey’s aide John Stewart was even blunter, confiding to his diary, “It has become increasingly clear that the civil rights groups must be handled with great care and maturity. In short, it is simply impossible to permit the civil rights groups to call the shots on this legislation. It is a good object lesson that you must even be willing to go against your strongest supporters when dealing with legislation of such tremendous scope.”
“There are enough groups and interests in this nation so that certain accommodations simply have to be made if there is to be a bill,” Stewart added, thinking not only of the business community, whose concerns weighed so heavily on Dirksen, but of all the other manifold constituencies with a stake in the bill. “This is a fact which the civil rights groups, looking at the bill from their very narrow perspective, simply cannot comprehend. And, what is even more distressing is that they immediately interpret any particular change in the legislation as some manner of dastardly sell-out. Clarence Mitchell’s bi-weekly eruptions in the leadership meetings only testify to this fact.”
On this spring Monday afternoon, the beleaguered civil rights troops sought surcease by trooping off to the other Washington Senators’ season opening game, assuming that comity might prevail for such a beloved annual ritual. But that hope collapsed at 2:20 p.m. when the spoilsport Spessard Holland of Florida noted the absence of a quorum on the Senate floor, and the announcer at D.C. Stadium alerted the watching crowd. Fifteen pro-civil-rights senators had to hustle back to work while Richard Russell, perhaps the biggest baseball fan of the bunch, just smiled and stayed in his seat.
On the floor of the Senate, shortly before midnight that same day, George Smathers sought to explain that he understood how high the passions about civil rights ran among black Americans. Humphrey interrupted him. “I would like to ask the Senator if he thinks that either the Senator from Florida or the Senator from Minnesota knows what it feels like to be a Negro and to be told he cannot come into a restaurant?” Humphrey demanded. “What is happening is not so much economics, even though it amounts to economic deprivation. It is not so much education, even though we know people have been denied education. What is happening is humiliation, the lack of a sense of dignity which has been imposed upon people.”
“I know something about discrimination,” Smathers defensively replied. “I recall that when I was in the Marine Corps, some of us could not enter certain officer areas to eat. We had to eat Spam. Those at the club ate steak, because they happened to be aviators.”
“That,” Humphrey retorted, “is a dictatorship called the military establishment.”
As the southerners droned on and the pro-civil-rights forces waited to see the full import of Dirksen’s amendments, they were sometimes at a loss as to what to do next. When in doubt, they simply let the southerners talk. But strains were showing. “We want them to make fools of themselves,” Humphrey said in the floor leaders’ meeting in his office on Thursday, April 16. “If they run out of speeches on this, then they will have amendments. We will have to plan on cloture. Nobody won a war on starving the enemy. We must shoot them on the battlefield.”
Clarence Mitchell interjected, “You are shooting the friends if you trade with Dirksen.”
“We don’t have sixty-five votes for cloture,” a frustrated Humphrey insisted. “Unless we are ready to move in our clothes and our shavers and turn the Senate into a dormitory—which Mansfield won’t have—we have to do something else. The president grabbed me by my shoulder and damn near broke my arm. He said, ‘I’d run that show around the clock.’ That was three weeks ago. I told the president he is grabbing the wrong arm. I have the Senate wives calling me right now asking, ‘Why can’t the Senator be home now?’ They add, ‘The place isn’t being run intelligently.’ Sometimes I’m working for longer hours. The president says, ‘What about the pay bill? What about poverty? What about food stamps?’ Clarence, we aren’t going to sell out. If we do, it will be for a hell of a price.”
At this point, the bells indicating a quorum call on the Senate floor rang out and the majority whip got up to go. “I’d better answer the quorum,” Humphrey laughed. “It would be a hell of a thing, if I missed it.”
* * *
ON THAT SAME THURSDAY, April 16, Dirksen at long last introduced his fair employment amendments to Title VII, which had now been reduced to ten in number. They were, he said, “the fruit of long study and staff work and consultation with the people in business, in industry, in the contracting field, and in nearly every other field of economic activity.”
Dirksen’s proposals would:
• Allow the new federal Equal Employment Opportunity Commission to take jurisdiction in discrimination cases after six months if a state agency had done nothing. Six months after that, if conditions had still not changed, an aggrieved employee could file a lawsuit and the commission could intervene to compel compliance with a court order. (Dirksen’s original idea had been to let state fair employment commissions claim jurisdictio
n in such cases until their actions were deemed ineffective by a court, but the pro-civil-rights forces said this would allow southern states to set up sham fair employment agencies in a deliberate move to stymie federal action.)
• Include union hiring halls in the definition of an employment agency. This provision was intended to ensure that employers would not be punished for discrimination that had really been inflicted by labor unions.
• Make the EEOC’s technical studies on discrimination available to the public.
• Delete a provision from the House-passed version of Title VII that would allow a third party—such as the NAACP—to file an employment discrimination complaint on behalf of an individual. Under Dirksen’s proposal, the employee himself would have to file.
• Prohibit the EEOC from making public anything said or done by it or an aggrieved employee during efforts to resolve the complaint.
• Restrict the filing of employment discrimination suits to the jurisdiction where the alleged offense had occurred and delete a provision allowing for suits in the location of a company’s home office.
• Strike out the House-passed proposal allowing employers to refuse to hire atheists.
• Require courts to find that any illegal act of discrimination had been willful, not inadvertent.
• Delete a provision allowing courts to appoint a special master to investigate the facts of discrimination cases.
• Stipulate that in states having fair employment laws, employers and unions need keep only the records required by existing state law, not a separate set of records under the federal law, and allow federal courts to require employers to comply with the EEOC’s request for evidence when they refused to provide it voluntarily.
Dirksen also announced that he would propose an eleventh amendment—which reporters quickly dubbed a “mystery amendment”—at a later time. But the minority leader did not yet “call up” his proposals—that is, he did not ask to have them made the pending business of the Senate—because he was still testing the waters. His paramount goal was to protect the thirty states that already had their own fair employment laws. As it happened, seventeen of these states were represented by a total of twenty-three Republican senators, whose votes would be needed for cloture.
But would Dirksen’s proposals fly with his fellow Republicans, much less the civil rights supporters? That afternoon, Robert Kimball reported to Stephen Horn that Bill McCulloch had accepted some of Dirksen’s ideas, but found others objectionable, including the idea of state agencies preempting federal action. Kimball further reported that Charlie Halleck did not “give a damn” about Dirksen’s proposals one way or the other. The two Republican staff aides agreed that Dirksen was being “dramatic, and wants to show when he finally lands on our side that the matter has been thoroughly considered.”
That evening, Humphrey and Kuchel’s staff analysis estimated that the civil rights forces could ultimately get sixty-four of the sixty-seven votes needed for cloture. But they agreed that not all of those votes were yet nailed down, and Dirksen himself was still listed as “doubtful.”
When Humphrey and the floor leaders’ group met the next day, Friday, April 17, they faced a question that would dog them repeatedly in coming days and weeks: were they willing to deal with the Dirksen amendments? Indeed, should they accept any amendments at all? Should they test the waters by seeking cloture on some amendments that might be acceptable, or hold out until they were certain they could win cloture for the whole bill? Nick Katzenbach warned that, once the civil rights backers accepted any amendments, “we’ve lost our virginity,” and would be vulnerable to more. For his part, Humphrey told reporters that if the Senate had not begun voting on amendments by the following week, he would ask for round-the-clock sessions.
On Saturday, Humphrey and Kuchel met at the Justice Department with Bob Kennedy and his top aides to go over the Dirksen amendments. They agreed that they would need to see the totality of Dirksen’s proposals—including his still threatened amendment to Title II, the public accommodations section—before issuing any detailed response, or beginning any horse trading. But a casual comment that the attorney general made to the press after the meeting briefly sent Joe Rauh and Clarence Mitchell and the other members of the Leadership Conference on Civil Rights into a tailspin.
When a reporter asked Kennedy whether he still felt the same about the Equal Employment Opportunity Commission in Title VII as he had the previous fall—when he had said he would support jettisoning the commission if such a move were needed for passage of the bill in the House—he replied, “I haven’t changed my mind.” That led Senator Allen Ellender of Louisiana to say he was glad that Kennedy was prepared to drop Title VII, and to hope that he might be willing to drop others, too. Two hours later, after reporters asked Kennedy’s aides whether he had really meant to say that he was now willing to sacrifice Title VII, the Justice Department was forced to issue a clarification, in which Kennedy said, “I am for Title VII as it stands.” Humphrey was even more emphatic. “We are not going to take out Title VII,” he said.
And on Sunday, April 19, the pro-civil-rights church groups started their most dramatic lobbying effort yet: teams of Protestant, Catholic, and Jewish seminarians began an around-the-clock prayer vigil at the Lincoln Memorial, vowing to continue the effort until the bill was passed. Students from seventy-five seminaries around the country streamed into Washington to pray in shifts, as the filibuster headed into its seventh week.
In their strategy meeting the next morning, the floor leaders’ group reflected the reality that Title VII had always been one of the most controversial parts of the bill—especially because of the way it was included at the last minute as part of the administration’s compromise with Bill McCulloch back in October. Stephen Horn correctly surmised that Dirksen’s amendments were intended to make the fair employment section palatable to northern businesses. Nick Katzenbach himself acknowledged that northern businesses that did not discriminate might well be put off by Title VII, “because of the records-keeping and the bureaucracy that are created.”
But on the floor that same day, Humphrey offered a vigorous defense of Title VII, noting that the Brooklyn Dodgers’ hiring of Jackie Robinson had been an economic boon for big league baseball.
“How about the player whom he displaced?” George Smathers demanded.
“He was better than the player whom he displaced,” Humphrey replied. “So he earned more money. As a result of the employment of Jackie Robinson the bleachers were filled with more people.”
* * *
THE NEXT DAY, TUESDAY, April 21, Dirksen finally unveiled his “eleventh amendment.” It was a compromise, aimed at placating Bill McCulloch. Instead of stripping the EEOC of its ability to bring enforcement suits in federal court—a change McCulloch had opposed—it would cede jurisdiction to state agencies for a limited period, giving them three months to resolve allegations of discrimination (or six months, in the case of newly created state agencies), before the federal commission could assert jurisdiction. If these voluntary efforts did not work, an employee could take his case to federal court, and the Justice Department could intervene, at the court’s discretion.
“It keeps the local spirit,” Dirksen told reporters, insisting that his goal was to strengthen, not weaken, the bill. “It starts back home.” But Dirksen acknowledged that his amendment would make the first-blush enforcement of antidiscrimination in employment largely voluntary. For his part, Humphrey said he found the amendment “a bit troublesome,” adding, “The more we see of the amendments, the better we like the House bill.”
But if the pro-civil-rights forces were discomfited by Dirksen’s maneuvering, the southerners were in even worse shape. Indeed, John Stewart would note in his diary, there was an increasing feeling in the Senate that the “southerners know they are in deep trouble on the issue this time. They are increasingly sensitive on the floor and do not appear to be as sharp in terms of parliamentary procedure as one has
reason to expect.”
There were, in fact, growing internal strains in the southern caucus. Younger senators—men like William Fulbright, George Smathers, even Russell Long and Herman Talmadge—were not dead-enders like Strom Thurmond. The liberal columnist Murray Kempton described the situation as a case “of age resisting youth, and a cause is hardly healthy when the realistic young think of a separate peace and only the principled old think of resistance to the end.”
Richard Russell himself had acknowledged on Meet the Press on March 1 that even residents of Georgia were not insulated from the changing times. “My people are not immune from brainwashing,” he said. “A great many of them have been brainwashed and they have forgotten the first Constitutional principles and have failed to see the dangers of passing legislation on the threat of demonstrations.”
Now Russell confided—to Clarence Mitchell, of all unlikely interlocutors—that he had no hope of getting any major compromises on the bill from Johnson, though he believed the southerners could have gained major compromises from John Kennedy. Instead, Russell admitted, “The jig is just about up.”
So just hours after Dirksen offered his eleventh amendment—as the Senate talked right past its previous thirty-seven-day record for a civil rights filibuster—the southerners switched tactics and for the first time proposed a real amendment of their own.
The amendment was offered by Russell’s fellow Georgian Herman Talmadge, who dragged out that oldest of civil rights hobgoblins—the jury trial. Talmadge proposed to guarantee a jury for defendants in all cases of criminal contempt—that is, for those accused of defying a court order—involving civil rights violations under the bill. He asked that his amendment immediately be made the Senate’s pending business.
“The denial of the right of a trial by jury to our forebears in the original Colonies was one of the reasons why our forebears instituted a revolution and made the Declaration of Independence,” Talmadge intoned. Asked if he intended to press for a vote that day, Talmadge answered that he did not, and Willis Robertson of Virginia said archly, “I believe the Senate can look forward to a considerable elucidation of what is involved.”
An Idea Whose Time Has Come: Two Presidents, Two Parties, and the Battle for the Civil Rights Act of 1964 Page 30
