The Bill of the Century: The Epic Battle for the Civil Rights Act (42 page)

That afternoon Dirksen called the bill’s supporters and their staffs to his office, where he announced that he was willing to begin negotiations. It was not yet a breakthrough, but it was the opening that the bill’s frustrated backers had been waiting for.
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Had Dirksen caved? Was he giving in to public opinion, which polls now showed was over two-thirds favorable toward the bill? Was he being won over by Humphrey’s constant, wheedling praise? Or was this the reveal in his magic show, to be followed by a prestidigitation in which he “brought the souls” to the cloture vote, as he had promised Katzenbach he would do all the way back in November? It was, in the opinion of the journalist Murray Kempton, very much the latter. “He began by binding to him those Republican Senators who wanted the civil rights bill weakened and who trusted him to leech it. Now, having assembled his troops, he seems ready to deliver them over to the bipartisan civil rights command,” Kempton wrote in the
New Republic
. “When Lyndon Johnson was majority leader of the Senate, there used to be complaints that he passed weak laws by bemusing the liberals into thinking them strong. Now Everett Dirksen seems to be moving toward the passage of a strong civil rights law by telling the conservatives that it is weak.”
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Not everyone agreed with Kempton, especially at the time, and Dirksen did his best to keep the civil rights forces guessing about his motives. On May 4, Senator Joe Clark approached Dirksen in the well of the Senate and asked him about his last, unrevealed amendment, what Clark called his “hydrogen bomb on Title II.” Dirksen replied, “Joe, it is not a hydrogen bomb. It is more like a firecracker that a twelve-year-old boy would set off.”
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“Will it be set off by a nice boy or by a juvenile delinquent?” Clark retorted.

And so by early May tensions were high, in and out of the Senate, as the bill proceeded along its two tracks: on the floor, the careful dance around the three jury trial amendments; off the floor, in the back rooms of Senate offices, the slow negotiations with Dirksen. Emotions and optimism swung wildly day by day; on May 6, Humphrey’s aide John Stewart wrote in his diary: “It will be somewhat of a major miracle if the pro-civil rights forces can get themselves back in order and push ahead with some degree of resolution and determination.” A few pages later, though, he noted in a burst of optimism, “It appeared that Senator Dirksen has now fully thrown his weight behind passage of the bill and upon cloture.” Anything, it seemed, could happen.
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As a precaution, Humphrey, Kuchel, and Katzenbach had agreed to continue to keep the civil rights groups as distant as possible; they held morning meetings with the groups on Tuesdays and Thursdays where staffers gave a sanitized “executive” summary of the previous day’s negotiations. This was also the session most senators attended. But it was not where the actual work occurred—that did not happen until the afternoon meetings, which usually became evening and even late-night meetings. Over the next several weeks, a regular routine emerged: five afternoons during the first half of May, the negotiators—Dirksen, Katzenbach, Dirksen’s drafting experts, and a host of senior staff representing Humphrey, Kuchel, and others—would meet in the bourbon-stocked back room of Dirksen’s office (a popular senatorial retreat that Dirksen called the Twilight Lounge). There, Frank Valeo recalled, “serious discussions could take place in seclusion and where toasts to progress could be drunk discreetly.” Sometimes the liquor was counterproductive. “Night after night Burke and I would go over the bill line by line in the senator’s back-room office . . . The senator would provide drinks for all, and we would proceed section by section through the bill,” Katzenbach recalled. “It behooved us to get agreement before too much bourbon had dulled the senator’s recall of what he had okayed.” Still, out away from the glare of media attention and lobbyist pressure, forward progress was possible, and day by day they got closer to an agreement.
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The civil rights community was alternately frustrated and bewildered; Mitchell and Rauh began to suspect they were being shunted aside and demanded they be briefed on the afternoon negotiations. The civil rights groups “have no idea what’s going on and are more or less going nuts,” noted Stewart in his diary. Perhaps in an effort to influence the proceedings, Mitchell stepped up pressure on Humphrey to go to round-the-clock sessions, and even demanded that the Senate sergeant at arms arrest wayward senators during quorum calls. “Who is Senator Russell that cannot be arrested, if by being arrested he’ll save some lives in Mississippi this summer?” Mitchell demanded to know.
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In response, activists outside the inner political circles began to raise the temperature of public attention to the bill. On May 6 the UAW issued a statement denouncing the negotiations with Dirksen. “We reject both as unwise and unnecessary current suggestions that concessions must be made to Senator Dirksen in order to purchase his vote for cloture,” it read. Two days earlier, on May 4, at a conference in Philadelphia, CORE had announced it would send protesters to both national conventions that summer. That afternoon in the Senate, with just a handful of senators on the floor, Kenneth Washington, a young black man in a trim hat and thin black tie, interrupted a pro-jury-trial speech by Florida’s George Smathers, shouting, “How can you say you are protecting the black man when there are only five of you there? I thought this is America, the land of the free.” He managed to go on for several minutes before three attendants hauled him away.
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Such pressure was no doubt heartfelt. But it also served a strategic purpose, which its more realistic proponents must have understood: the combination of broad public support for the bill, amplified by the LCCR’s field operations, and the Capitol Hill tromping of men like Rauh and Mitchell, opened up space on the left of the bill for negotiation. Dirksen was not only under pressure himself, but he could see the sort of pressure his colleagues across the table were under.

At the same time, though, pressure was growing from the right as well. On May 5, George Wallace won 30 percent of the vote in the Indiana Democratic primary. It was less than some expected, and not as impressive as his Wisconsin showing. But sharp-eyed observers noted that he seemed to do best in the northwest corner of the state, near Gary, where both its black and blue-collar white populations were concentrated (he also did well in the middle of the state, home to the highest concentration of white fundamentalist Christians). For some, it was also evidence that John Satterfield’s CCFAF was having some effect. On the theory that Wallace’s supporters were mostly disgruntled white ethnics, the committee had taken out anti-civil-rights ads in publications like the
Polish Daily News
of Detroit,
Serbian Struggle
of Chicago, and the German-language
Wochenblatt
of Omaha. And it had contacted the major donors of vulnerable senators, hoping to find pressure points.

The primary’s impact on the bill was obvious, and opponents rushed to translate it into pressure to pare back the legislation. Barry Goldwater, the conservative Republican senator from Arizona with a tightening grip on the party’s presidential nomination, said the Wallace nonvictory “might take out two of the most objectionable features—the public accommodation section and FEPC, and it might delay passage until after the November election.”
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The first negotiations with Dirksen took place in the late morning of May 5, in his office. Mansfield and Humphrey arrived in high spirits; they had just come from a leadership breakfast at the White House, where the president had told them he would begin to put the screws on Arizona senator Carl Hayden to vote for cloture. Hayden was a strong supporter of civil rights, but he was holding off from a commitment to cloture out of tradition: Arizonans looked fondly on the filibuster because in 1911, senators had used the tactic to prevent the Republicans from merging the Arizona territory with New Mexico. In a rare instance of explicit horse trading on the bill by the president, Johnson promised that in exchange for Hayden’s support he would push for the Arizona Water Project, a massive program to bring water to the bustling cities of Phoenix and Tucson. And the move seemed to work, for once. Stewart Udall, who had been a representative from Arizona before becoming secretary of the interior, wrote the president a few days later: “The reports I get from Senator Hayden’s staff indicate that your gambit on cloture with the Senator at out Tuesday meeting was very persuasive.”
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Along with the two Democrats, the men seated around a long table in Dirksen’s office included Kennedy and Katzenbach from the Justice Department; Warren Magnuson; the Republicans Kuchel, Hickenlooper, and George Aiken; and a platoon of staffers. Dirksen began by announcing his additional changes, which, if not exactly a hydrogen bomb, were much more dangerous than the firecracker he had promised: not one more amendment, but forty more, divided into three categories of relative substance. The men around the table took a deep breath. Dirksen could not be trusted after all. Even Kuchel was dismayed and angry. But rather than quit in disgust, they bore down, and by the end of the meeting they had dispensed with the first, mostly technical, group of changes. The rest would have to be dealt with later.

There was, however, a method to Dirksen’s madness, and it was significant that Hickenlooper was at the meeting. Though Dirksen was often seen in the press as the man with the key to the conservative Republicans, it was really Hickenlooper, his jealous Midwestern rival, who held the most sway. And it was Hickenlooper who still demanded more give from the civil rights forces before he or his allies would concede to cloture.
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A major step forward occurred on May 6, when the Senate took up the Morton amendment. The leadership hoped to defeat the amendment handily, but the exercise almost ended in a debacle. The first vote, on whether to take up the bill at all, was split 45–45, the narrowest possible victory for the civil rights forces.

Just then Utah senator Frank Moss, a Democrat, ran into the chamber and demanded he be allowed to vote as well. When the clerk said the vote was over, Moss lit into Mansfield. He had been on a phone call just outside, Moss said, and the majority leader had promised to come get him when the vote came. When the Senate took up the next motion, to table—that is, kill—the Morton amendment, Moss sided against the leadership out of spite, and the motion was defeated.

The Senate went wild. Mansfield, gaveling the chamber to order, commanded everyone but the senators to leave the room. Outside, the Republican and Democratic staffs stood on opposite ends of the anteroom, “Like boys and girls at teenage dance,” noted Wolfinger in his diary. Finally, the leadership placated Moss, and the staffers were let back in. The Senate voted on tabling the Morton amendment again, and this time, with Moss on board, the motion passed, killing the proposal.
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After narrowly defeating the Morton amendment, the leadership had planned to move directly to the Dirksen-Mansfield amendment. But Richard Russell objected, and the narrowness of the vote on the Morton amendment persuaded Humphrey not to press the case. It also pushed the civil rights lobbyists over the edge. Convinced that the slim margin on the Morton vote would give Dirksen an enormous chip in the negotiations, Mitchell demanded in a meeting the next day—his first one since the Dirksen talks began—to see the text of the minority leader’s amendments. Katzenbach told him there was no text, which was true only in the strictest sense, since it was constantly being rewritten and tweaked. Mitchell then demanded that the negotiations be called off completely.
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Just then Humphrey walked in. When Mitchell confronted him, Humphrey let loose. “Whatever we are doing has but one purpose,” he lectured the NAACP lobbyist. “And that is to secure a civil rights bill. Anybody who has an alternative, I’m glad to hear it. It is not pleasant for Tommy Kuchel and myself to have it appear that Dirksen is writing the ticket. I want the bill passed—the House-passed bill. We will not eliminate any title, purpose, or emasculate the bill. We aren’t going to agree or negotiate anything which vitiates the House view . . . I’d rather have no bill than the shell of a bill”—an echo of what civil rights leaders, particularly Martin Luther King Jr, had been telling reporters in recent weeks. Mitchell, for once caught speechless, backed down, but it was clear that the relationship between the bill’s supporters in the Senate and the civil rights movement was fraying, and might even break, with disastrous consequences for the bill.
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That same day, though, came another incremental breakthrough in negotiations. One of the sticking points for Dirksen had been the provision in Title II that the Justice Department could sue local and state governments when it believed there was evidence they were supporting “massive resistance” of the public accommodations law. The problem, Dirksen foresaw, was that the term “massive resistance” was so vague that it provided no real check on when and where the Justice Department could jump in. After lunch, Clyde Flynn, one of Dirksen’s aides, came in with a suggestion: What about replacing the phrase “massive resistance” with “pattern or practice”?

Charlie Ferris, one of Mansfield’s negotiators, loved the idea. “Give us an hour to talk about this,” he said. He rushed over to the Department of Justice and presented the idea to Katzenbach and Marshall. “Jump at it, Charlie,” Marshall said. “That’s marvelous.”
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