The Bill of the Century: The Epic Battle for the Civil Rights Act (22 page)

Fortunately for labor and its allies, the White House was not the only avenue through to the bill. Several members of the liberal majority on the subcommittee stood ready to strengthen the bill, including adding an FEPC; the only question was whether Celler would let them. All through July, the LCCR and its constituent groups had been pressuring Celler to open the bill to amendments in Subcommittee No. 5. He had signaled his openness to additions during hearings on July 24, when he said, “Don’t misunderstand me. I want to put everything I can in the bill.” Celler was always likely to let them have what they wanted—not only was he more liberal than the administration thought, but while he remained a Kennedy loyalist he seemed to chafe a bit at being treated like a “Daley Democrat,” a machine pol with no conviction of his own. “The impression downtown, at the Department of Justice, was that Emanuel Celler would do what he was told to do,” said his former aide Ben Zelenko. “He had been through a lot, and he bucked them.” Finally, at a meeting with Biemiller, Rauh, and several other LCCR representatives on July 31, Celler said he would agree to almost every item on the LCCR wish list: an FEPC, a robust Title III, a mandatory Title VI funds cutoff, and an unchallengeable presumption—not just a debatable assumption—that a sixth-grade education meant someone was literate enough to vote. He reiterated that commitment on August 7 in a speech to the NAACP, promising to include both FEPC and Title III in the bill.
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Despite its aggressive push for a bigger bill, the LCCR did appreciate the limits of its advocacy. At a July 24 meeting, aides to Adam Clayton Powell Jr. urged them to try to push Representative James Roosevelt’s own FEPC bill, H.R. 405, to the House floor, bypassing the Rules Committee by means of an aggressive, risky tactic called “Calendar Wednesday.” Rauh, speaking for the rest of the LCCR representatives, said absolutely not—the risk was too great, and a failure could hurt Kennedy’s bill. Powell later said he would ignore them, and was only placated once Celler promised he would make sure H.R. 405 got added to the main bill.
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By late August, with the likelihood of a stronger bill increasing, Rauh ordered the rest of the LCCR lobbyists to ease up. It was time to play nice with the administration, because the subcommittee vote was only the first of many to come. “I recommend that the organizations of the Leadership Conference on Civil Rights and the additional cooperating groups accept the Justice position and its good faith as well,” he wrote in an August 30 memo.
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After more than a hundred witnesses and twenty-six hundred pages of testimony, Subcommittee No. 5 finished its public hearings in early August, and on the fourteenth it went into executive session. There, away from the public, the members would debate and amend the bill before voting on whether to send it to the full committee—and, eventually, to the House floor.
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In keeping with his promise to President Kennedy to hold off on the bill until the tax cut was safe, Celler dragged out the first several weeks of executive session meetings, allowing long-winded and somewhat pointless debate. Usually either Marshall or Katzenbach was present, and at the end of the day they would return to the Department of Justice and assign someone from Schlei’s drafting team to rework the bill accordingly—though most of the changes, especially those submitted by Republicans, were inconsequential. “They would often pursue at great length the meaning of a particular word or phrase searing for ambiguities, trying to point up poor draftsmanship,” David Filvaroff, one of the team members, recalled. “The burden which fell to the Department was to respond to these by memoranda or arguments which adequately met the arguments made or by coming up with new language which avoided the asserted, if often unreal, difficulties.”
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Celler waited until September 10, when the tax cut was on the House floor, to begin marking up the bill—reading the bill line by line, with committee members adding amendments, sometimes just single words, as they went along. By then the Department of Justice men, whose attendance at the executive sessions required the unanimous consent of the members, had been kicked out, after Representative Meader of Michigan raised an objection.
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Then they started to debate additions to the bill. Since the liberals dominated the subcommittee, the conservative Republicans could do little more than raise objections, but Celler did not want word to leak out that the bill was gaining strength before he was ready to announce it. And so he promised McCulloch and others that the votes were only tentative, that they would go back through at the end and reassess each addition before making the bill final. They raised little objection as the subcommittee approved Byron Rogers’s amendment to grant the attorney general the power to sue over denial of access to any public facility, including parks and pools. Nor did they object to Robert Kastenmeier’s expansion of Title II to cover all public accommodations, save for small rooming houses (even though it was an affront to McCulloch, who had just finished working on compromise Title II language with Katzenbach). And they raised hardly a hand against Celler’s addition of a new title that would allow federal appeals courts to review cases that segregationist federal judges on the district level had passed down to a state court, which presumably was even more hostile to civil rights.
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But the bill was weakened in other ways. McCulloch objected to the findings that prefaced the bill—and since they had been added primarily to ensure the bill went to the Judiciary Committee, they had served their purpose, and were duly dropped. But he also wanted to tighten the rules on voting in Title I. The way the bill was written, a voter who sued to get onto the rolls could vote immediately—even though the enhanced legal mechanisms that made such a suit possible, including intervention by the Justice Department, could only be summoned if evidence of widespread voter intimidation was found. But because such a determination could take months to complete, McCulloch feared the bill was putting the cart before the horse—that it made it easier for people to vote, including, potentially, those who should not be permitted, before the grounds for admitting them were established. He therefore proposed quarantining such votes until a three-judge panel could reach a conclusion.
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McCulloch also demanded that the words “and racial imbalance” be removed from Title III, which meant that technical and financial assistance could not go to school districts trying to correct for de facto segregation—in effect limiting the bill’s education plank to Southern schools. Though the change significantly limited the bill, it was readily accepted by even the pro-civil-rights members, who knew well the growing political challenges that de facto segregation posed in their districts. (The revision echoed a change made by Justice Department attorneys in early August, when they had rewritten Title VI to explicitly exclude federal funds used to guarantee home loans, removing the threat of substantive federal action against housing discrimination.)
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As they proceeded, racial tensions continued to heat up as students went back to school. On September 5 a bomb went off at the Birmingham home of a local black leader, Arthur Shores; one man was killed and sixteen injured in the riot that ensued. That same day Governor Wallace, who had said he would not interfere with federal court orders to desegregate schools in his state, ordered state troopers to block black students from entering schools in Birmingham, Mobile, and Tuskegee. When a federal judge issued an injunction against the troopers, Wallace sent out the Alabama National Guard—which Kennedy then, for the third time that year, federalized. Finally, on September 10, Wallace gave in, saying, “I can’t fight bayonets with my bare hands.”
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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.
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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.”
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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.
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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.
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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.
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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.”
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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.
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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.”
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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.
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