The Bill of the Century: The Epic Battle for the Civil Rights Act (32 page)

“Along with Betty Friedan,” wrote Smith’s biographer, Bruce Dierenfield, “Smith must be credited with giving the modern feminist movement a powerful, if unanticipated, push forward.” The question remains, though: Was Smith sincere in his desire to help women—or was he just trying to throw a wrench into the proceedings? Representative Martha Griffiths of Michigan said that Smith later told her the amendment was “a joke.” T. M. Carothers, the counsel for the Rules Committee, said, “The ladies give him credit for helping them, but he had another motive. I wouldn’t say he was in favor of civil rights.”
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Such speculation is undermined, to some extent, by Smith’s decades of support for the Equal Rights Amendment, which had been unsuccessfully proposed in every congressional session since 1923, and the months-long record of Smith’s negotiation with Alice Paul and the NWP over whether to introduce the amendment.

Whatever his motives, his move was anything but spur-of-the-moment trickery. Most likely, Smith acted with multiple goals in mind. Dierenfield speculates that he wanted to help Southern businesses by, in effect, striking down gender-specific labor laws that prevented them from taking advantage of cheap labor. And Smith may also have agreed with Paul—who, though a leader on women’s rights, was rather retrograde in her views on race—that if black men and black women were going to win labor protections, and white men were already in control, the only people who would be left out would be white women.

To some extent, it is a moot question. Had Smith not introduced the NWP’s amendment, the group would probably have found someone else to do it. But it remains a great irony of the civil rights story that one of the men most responsible for holding back the advancement of American blacks was also the man responsible for the single biggest advance in women’s rights since the Nineteenth Amendment granted them suffrage.

On the same day that Smith introduced his amendment, Charlie Halleck answered the last question facing the bill when he called together the Republican leadership for a morning meeting to announce his support for Title VII—the first time he had done so, and a sign that the Republicans would now fall behind the bill as a bloc. Even a bit of partisan sparring that evening—Celler refused to grant Halleck’s request to keep the session going late so that Republicans could get away for Lincoln Day—did not undo the minority leader’s commitment to the bill.
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Finally, on Monday, February 10, the House gathered to finish the consideration of amendments and move to vote on the bill itself. Smith made two last-ditch amendments, one that would strike Title VII’s requirement that employers retain their employment and hiring records, and another that would allow an individual to choose the conditions under which he would work—a symbolic gesture meant to underline the Southern Democrats’ repeated assertion that Title II, by forbidding discrimination in many commercial accommodations, was tantamount to slavery. “I know you are not going to adopt this amendment,” he said to the bill’s supporters, “but I just want to see you squirm. I just want to see you feel ashamed of yourselves. I want to see you get up and argue against the 13th Amendment, which you placed on the books 100 years ago.”
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Two more amendments were adopted that day: one specifying that Title VII protection did not extend to atheists or Communists, and one from Robert Ashmore of South Carolina to put the Community Relations Service back into the bill. The latter move—a strengthening amendment from a Southerner—was a bit of a surprise, but Ashmore was sincere. He said later that if the bill was going to pass, he wanted the CRS in there as a mediating buffer between private citizens and the federal government. In all, twenty-six amendments had been voted on during the debate, and only four had passed—all with Celler and McCulloch’s approval.
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While Joe Rauh and Clarence Mitchell watched the final sputterings of the debate play out on the floor, a thirteen-year-old House page approached and said there was a phone call for them. Rauh stepped out of the gallery and into the phone booth—and found himself talking with the president. “What have you done to get the bill on the floor of the Senate?” Rauh recalled Johnson shouting at him. “Here it was just passing the House and he wanted to talk about the Senate.”
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A little while later Representative Keogh, who was acting as chairman of the Committee of the Whole, asked, “Are there any further amendments to Title Eleven?” There was silence. He hammered the gavel. “If not, under the rule, the committee rises.” Keogh stepped down, the mace was returned to its holder, and McCormack returned to his seat. The Committee of the Whole was no more.
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A few hours later H.R. 7152 was brought up for a vote. It passed by a predicted, lopsided tally, 290 to 130. Thanks to the hard work of the church groups, of the sixty-seven representatives they targeted from Ohio, Illinois, Indiana, Nebraska, and South Dakota—almost all of them conservative small-town Republicans with no constituent interest in civil rights—only five voted against the bill.
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As soon as the clerk announced the results, Celler rose. “I want to state that the result would not have been the way it was were it not for the wholehearted support and most earnest and dedicated cooperation of my distinguished colleague and counterpart on the Judiciary Committee, the gentleman from Ohio.” McCulloch rose to thank Celler, and within a few hours he was on his way, with his wife, to Bermuda for a much-deserved vacation.
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Though the bill’s passage in the House was rarely in doubt once it cleared the Judiciary Committee, its success—and that of the tax cut in the Senate soon after—was an immediate public boost to President Johnson’s fledgling administration. Praise poured forth. Among other publications,
Time
enthused about “Johnson’s masterful dealings with Congress that got both bills moving swiftly and both through without casualty.”
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But Johnson’s eyes were already on the Senate. Despite the bill’s success in the House, he was less confident that it could clear a filibuster by the Southern Democrats. On February 11, he pulled Katzenbach aside at a White House reception. Dragging together two chairs, he bade his deputy attorney general to sit down. “How do you plan to get this bill enacted in the Senate?”
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Katzenbach said they owed it to McCulloch to try for cloture, instead of negotiating away parts of the bill to reach a compromise. “I think we have to try for cloture. We may not get 67 votes, but we have to try.”

Johnson was skeptical. “What makes you think you have a chance for cloture?”

But Katzenbach, ever the scholar, had done his homework. “I think we can get 57 to 60 votes for cloture fairly easily. We have 51 Democrats and some liberal Republicans from New York, California, Pennsylvania, and New England who will support the bill. But not all will vote for cloture. We need at least half the 33 Republicans. Based on the cloture vote on the Communications Satellite Act”—in 1962 a bipartisan coalition had defeated a liberal filibuster against a plan to encourage investment in space-based telecommunications—“there are 74 potential votes for cloture. We need at least seven more from 14 senators who have voted at least once for cloture. That should be possible.”

Johnson asked for specific names. Katzenbach reached into his coat pocket and produced a list of senators, and the two hashed out the most likely converts. Finally satisfied, Johnson told him to go for it.

During the days before and after the vote, Johnson was on the phone constantly with Senate Democrats, barking orders about how they should bring the bill over from the House, how they should work with the Republicans, how they should deal with amendments. But most of what he said was cheerleading, and his advice was on questions that Mansfield and his deputy, Hubert Humphrey, had resolved months before.

In truth, Johnson was preparing to take a step back from the bill—he knew it was in good hands, but he was not sure that those hands, that any hands, were good enough to get the bill intact through the Senate, and he did not want to catch any blame if it imploded. Almost from the first of the year he was working to downplay expectations of his coming role. In a January 6 call with Wilkins, he said: “I’ll help you, and I’ll confer with you, and you can come in every day and talk to me about it. I’ll do everything that I can, but I don’t want anybody to get any illusions that I’m a magician, because I’m not.” On a phone call with Robert Kennedy the morning after the vote, he made it clear that his role would be to provide public support and review strategy, but that the Department of Justice was running the show. “Now, you get together with Larry [O’Brien] and Mike Mansfield in the morning and work out a procedure,” he said. “We’re going up against a more difficult task. I’ve never been able to see my way through it and I want to do everything I possibly can, but I don’t want anybody to think there’s any disagreement among us or that there is any sabotaging taking place . . . You touch whatever bases your wisdom indicates and then get back to me with your ideas.”
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While Johnson reaped public praise for the bill, he was at most a supporting actor in the drama. The real heroes in the House were Katzenbach and McCulloch, who crossed party lines to hammer out repeated deals, driven by their conviction that something had to be done for black America. But their commitment would not have been nearly as strong had the civil rights community and the LCCR not brought constant pressure to act; though Katzenbach then and later railed on the liberals, and though Robert Kennedy repeatedly referred to them as “sons of bitches,” their work was absolutely vital in providing political cover for the administration to accept a stronger bill. If the Civil Rights Act is a landmark in the history of racial progress in America, it is also a testament to the power of ordinary citizens to band together and drive their government to move forward.

Chapter 6

A Battle Is Lost

Although the Senate did not take up H.R. 7152 in earnest until it passed the House, expectation of a filibuster had been building for months. Behind the scenes and in front of the cameras, senators on both sides of the bill had been getting ready since the first rumors of its existence had trickled out of the Department of Justice planning sessions.

There was, of course, the trio of companion bills in the Senate: a mirror of the entire bill, a version of the bill without Title II, and a Title II–only version. The three served a fourfold purpose: they allowed Senate leaders to test out which parts of the bill had the most and least support, they helped focus the chamber’s attention on the issue, they provided a written record of debate (which would come in handy when filibusterers claimed that the bill was being rushed through), and—most important—they provided a set of fallbacks in case the House bill failed along the way.

But the Senate leadership had also been working on a strategy in case everything went right—and the Southern Democrats launched their filibuster.

One of the enduring questions of the civil rights bill was why the Southerners, faced with an overwhelming tide of public support for the bill, refused to compromise to get a weaker bill. After all, they had compromised in 1957 and 1960, and the results were watered-down legislation that did little to move the ball on segregation. To understand why they went to the mat on this bill, one first has to understand who the Southern Democrats were and where they stood in 1964.

From the early twentieth century through the 1960s, the Southern Democrats operated as almost a third party within the national political system. Though many of them supported the New Deal, they were overwhelmingly anti-federal-government and anti-labor. They were united and driven by a single, overriding political value: the interlocking set of local and state laws, customs, and government programs that defined and enforced Jim Crow segregation. If a federal program promised to help blacks, the Southern Democrats were against it, no matter how much it might benefit their states. It was possible at times for a Southern politician to downplay race as an issue, but it was impossible for one ever to appear weak on the issue.

Even the political culture of the Southern Democrats differed from that of the national party. Lacking serious Republican challengers, if any at all, the Southerners focused on winning party primaries—which, until the Supreme Court invalidated the practice in 1944, were run in most states as all-white affairs. Southern voters also placed a much higher value on seniority and longevity than voters elsewhere, because they knew well that the more senior a politician, the more power he had, the more likely he was to run a committee, and, therefore, the better positioned he was to block antisegregation legislation. They became masters of procedure and institutional memory; they honed tactics and strategies for delaying and destroying legislation. Frank Valeo, the secretary of the Senate under Mansfield, recalled: “I don’t know how many times people like [Illinois senator] Paul Douglas and others would think they’d found an answer in the rules and they’d come forward and try to hit Russell head on, and then all of a sudden they’d find themselves flat on the legislative ground again.”
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These were Democrats in name only. The affiliation with the national party was largely an artifact of history: it made more sense for the Southern Democrats to align with conservative Republicans, but the Republicans were the party of Lincoln, and as such they remained a dirty word across most of the South until well after World War II. And yet, despite the antipathy between the Southerners and an increasingly liberal national party, the two stuck together as a matter of convenience. The national Democrats could dominate Congress with the eighteen or so Southern-bloc Senate seats and one hundred or so House seats; without those, the party would be in a permanent minority. But the Southerners also understood that they needed the national party in order to be in the majority, and to hold committee chairmanships, and to better crush antisegregation legislation, working on the time-honored principle that one should keep his friends close, and his enemies closer.