The Bill of the Century: The Epic Battle for the Civil Rights Act (36 page)

To counter quorum calls, Humphrey and Kuchel agreed to maintain duty rosters for each party, with firm commitments to keep enough senators nearby to make sure calls could be met. Humphrey went further, asking that each Democratic supporter give him their travel schedule for the coming months so that he knew in advance who would not be in town. And they agreed to publish every morning a “civil rights newsletter” for all the friendly senators, their staffs, and the civil rights groups, laying out the upcoming day’s events.
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The pair also named “title captains”: one senator from each party who would be in charge of advocating for a particular title, defending it against attacks, and consulting with the leadership on any amendments to it. They set a schedule of daily staff meetings and frequent meetings of the leading senators. They agreed to follow normal Senate rules for the time being, but if the filibuster dragged out, they would begin to steadily extend the hours in session each day and enforce the two-speech rule.
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Finally, and most importantly, Humphrey and Kuchel agreed not to attempt a cloture vote until they had firm commitments from sixty-seven senators to end debate. With only fifty sure votes for cloture at that point, neither man knew when that would be.
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While Humphrey and
Katzenbach worked the Senate, Johnson was busy working the public. In almost every public address—press conferences, campaign speeches, talks with constituents—he emphasized the need for a strong civil rights act. On the evening of February 27, Johnson told an audience at a $100-a-plate fund-raiser at the Fontainebleau Hotel in Miami: “This Democratic administration believes that the Constitution applies to every American of every religion, of every race, of every region in our country. I pledge you tonight, and the people of this Nation, and the people of the world, that this administration is pledged to protect the full constitutional rights of every American. We intend to press forward with legislation and with education—and yes, with action—until we have eliminated the last barrier of intolerance.” Two days later, back at the White House, a reporter at a press conference asked him about rumors that he was willing to compromise on Title II. “I have never discussed this with anyone, and I would suspect that those rumors which you talk about, which I have read about, are strictly Republican in origin,” he said puckishly. “I will say that the civil rights bill which passed the House is the bill that this administration recommends. I am in favor of it passing the Senate exactly in its present form. I realize there will be some Senators who will want to strengthen it, some who will want to weaken it. But so far as this administration is concerned, its position is firm and we stand on the House bill.”
A month later, in a meeting with a hundred fifty members of the Southern Baptist Christian Leadership Seminar, he implored them to get behind the bill, saying that no one “has a greater responsibility in civil rights than Southern Baptists.”
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If Johnson did nothing else to help the legislation, constantly reiterating his support—support backed by a nearly 80 percent approval rating—was an enormous boon. Richard Russell himself admitted as much the next day on
Face the Nation
, when he said that he believed Johnson would throw everything he had behind the bill: “I think President Johnson feels if he loses any substantial part of it, that it will cast all of his statements of support for it in doubt.”
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Still, Johnson was making a calculated withdrawal from his close identification with the bill in the days and weeks after Kennedy’s assassination. It is telling how carefully Johnson chose his words of support—always making clear that while he wanted to see it pass, it was the job of the Senate, not the White House or Justice Department, to make that happen. At times he sounded more like a sportscaster than a player. On March 7, two days before the bill was to be taken up, a reporter asked him how long the filibuster might last. “I think that the leadership can best assess that,” he said. “I would not want to estimate. I don’t think anyone really knows how long the matter will be discussed, but I believe that there are senators who feel very strongly, both pro and con, and they will be given adequate opportunity to express themselves. Then I believe the majority of the Senate will have an opportunity to work its will.”
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Yet Johnson was also already growing frustrated with Humphrey and Mansfield’s leadership. In a heated phone call with Larry O’Brien, the president lashed Mansfield in absentia for not agreeing to round-the-clock sessions immediately. “I just want to be sure the attorney general approves of this,” he said. “Because I sure don’t. And if they agree with him, all right. But my judgment is they ought to start right out going right around that clock until they get it.”
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“Well,” O’Brien said, “I have a feeling that he’ll—”

“You be sure that you explain to him that’s my judgment on the matter, but I want them to handle the bill, and I’ll work with them any way I can. And if Hubert and them work it out, that’s their business. They ain’t going to damn sure put it in my lap because I’m for civil rights—period. Just as it passed the House—period.”

Johnson was trapped by his own strategy. He desperately needed the bill to pass, but it was too risky for him to get involved any further; if he did, he would have no one to blame if it failed, as he still suspected it would. But he also could hardly abide Mansfield and Humphrey’s refusal to follow in his footsteps. They were charting their own path, and only time would make clear whether it was the right one.

On Friday, March 6, the Senate voted on the last major piece of legislation on its docket besides the Civil Rights Act: a bill to provide new subsidies for cotton and wheat farmers—legislation that farm-state senators from both parties, and in particular Humphrey, had desperately wanted. They were still hedging their bets: if the civil rights bill failed, or went to the end of the session, they needed something to take back to their largely white constituents. With that out of the way, Mansfield announced that the Senate would take up the civil rights bill the following Monday.
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The next morning Humphrey had another meeting with representatives from the Leadership Conference on Civil Rights, this time without Kuchel. The LCCR had been pushing for a Johnsonian strategy—all-night sessions, strictly enforced speech limits—as well as a raft of strengthening amendments. The point of the meeting was for Humphrey to explain why that was not the plan of action. He and Kuchel had already agreed to keep the civil rights lobbyists at arm’s length, largely at the insistence of the Department of Justice. But clearly Humphrey did not want them around too often, either.

“The House bill is a good bill,” Humphrey told them. “In fact, there is so much good with it that it is hard to tamper with it.” But, he added, “if the Senate messes with it too much, there won’t be any bill,” since it would upset McCulloch and most likely force the House and Senate to negotiate the bill in a conference committee, which would add more time and risk to an already fraught process. At Clarence Mitchell’s insistence, Humphrey agreed that he would not dismiss strengthening amendments out of hand—but he underlined that the bar for acceptance would be incredibly high.
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A few minutes after noon on Monday, March 9, Mansfield moved to dispense with the reading of the Senate journal, the compendium of the previous day’s activity, an almost daily request that was almost always granted by unanimous consent. But not that day. “I trust that the clerk will read the journal slowly and clearly enough for all members of the Senate to understand it,” Senator Russell said slyly after objecting to Mansfield’s motion.
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Russell’s objection was critical: motions to take up a bill, like the one Mansfield was planning to offer, were not open for debate if offered during the first two hours of a Senate day, known as the “morning hour.” If Russell and the Southern Democrats could stall until two o’clock, then Mansfield’s motion would be up for debate—that is, to a filibuster. When the clerk finished, Russell immediately went on an extended harangue against the bill, easily filling the remaining time, and then some, wrapping up around 3:15; a glass of water sat on his desk beside him, untouched. Is the morning hour complete? he asked the clerk with faux naïveté. Indeed it is, came the reply.

Mansfield then rose to offer his motion to take up the civil rights bill, but he knew he was too late. “The issue of civil rights can wait no longer in the Senate,” he said. But the motion was debatable, and the first filibuster had begun.
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Though this first filibuster—sometimes called the “phony” or “mini” filibuster—received less attention than its later, much longer cousin, it was actually the much more substantive of the two.

There were two lines of discussion going on simultaneously. First, in an argument that would run past the end of the phony filibuster, came a continuation of the debate over whether to refer the bill to the Judiciary Committee. Again, Morse led the charge. His concern, he said, was that the bill needed a long and involved legislative history so that later, when the Supreme Court inevitably took up one or more challenges to it, the justices would have a rich body of material in which to discover the Senate’s intentions behind each detail in the law. “It is my opinion that every single sentence of this act will be litigated,” he said on the Senate floor. “I wish to give the Supreme Court the strongest possible base, so that the law can be sustained.”
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These were legitimate points. But Humphrey and Mansfield had answers. For one thing, the majority whip noted, the Senate had sent 121 civil rights bills to the Judiciary Committee between 1953 and 1963, and received not a single one back with a report—most recently the Senate version of the bill now under discussion. Of course, the Senate could always instruct the Judiciary Committee to return the bill in fourteen days. But as Mansfield noted, that would just mean starting the whole process over again, with yet another phony filibuster, and time was wasting. Moreover, added Thomas Dodd of Connecticut, the collected committees in the House and Senate had already held 83 days of hearings, heard from 280 witnesses, and produced 6,438 pages of material, in eye-strainingly small print. “Further hearings could be only a repetition of what has already been said,” he argued.
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As this procedural discussion ran on, another debate centered on the merits of the bill—particularly Titles I, II, and VI. As in previous debates, the arguments put forth by the Southern Democrats tended to reiterate arguments first proffered by segregationist and conservative legal scholars, including John Satterfield and Robert Bork, then a young professor at Yale Law School, who had written scathing critiques of the bill in both the
New Republic
and the
Chicago Tribune
.
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But they also brought new arguments to the table, arguments designed less to challenge the constitutionality of or need for the bill, but rather to foment racial animosity by whites. On March 16, Russell resurrected an old proposal to give Southern blacks $1.5 billion in incentives to relocate to parts of the country where few of them lived—the better, in Russell’s mind, to show white America just what it was like to live near them. (The proposal was mostly a rhetorical prop on Russell’s part, and it did not go anywhere.)
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In another instance, Allen Ellender of Louisiana argued that voting restrictions were justified because otherwise, blacks would take over the government and run it into the ground—a claim that spoke directly to Northern white fears of social integration.
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Humphrey was flabbergasted. “How does the Senator justify that under the Constitution?”

“Well . . .”

“The Constitution is rather explicit on that subject.”

“I understand that. I am not saying they should not be registered, but I am giving the Senator the reason why,” Ellender said. “If this happened in the State of Minnesota, the Senator from Minnesota would do the same thing.”

“Not at all. Not at all,” Humphrey replied.

“The Senator from Minnesota has not lived in the South,” Ellender said—implying, of course, that once Northern whites understood what it was like to live near blacks, they, too, would support racial restrictions. (He was also wrong on that point, since Humphrey had attended Louisiana State University for his master’s degree.)

Humphrey’s energetic engagement with Ellender was part of a tactic, worked out with Kuchel, to respond immediately and fully to any Southern argument, the better to demonstrate to wavering senators the commitment to the bill and the wrongness of the Southern Democrats’ position—even if it meant making their fellow party members look foolish. On the first day of discussion, Lister Hill claimed that Titles I and II would create special classes of citizens protected by the law, which would in turn limit the rights of everyone else. “History aptly demonstrates that special privileges for one group can but result in a limitation of liberty and a denial of the rights of others,” he said. This was nonsense—if anything, inasmuch as blacks were treated differently because of the membership in a particular group, the bill actually banned special treatment for them.
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Humphrey immediately challenged Hill. “The senator from Alabama realizes, does he not, that the common law of England, ever since the thirteenth century, or even before then, provided, in relation to innkeepers, that if there was a vacancy in an inn, and if a person had the necessary rental money, the innkeeper had an obligation to provide accommodation for him, without regard to caste or person.”