The Bill of the Century: The Epic Battle for the Civil Rights Act (43 page)

Despite the slow but steady progress, President Johnson was getting antsy. On May 12 the Senate tied its record for the longest filibuster ever, and the next day would surpass the record set in 1846 on a bill to assume complete control of the Oregon Territory from Britain. The next morning, at the Tuesday leadership breakfast, Mansfield told the president, with his usual pessimistic prognosis, that “progress on the bill to date is nil.”

Johnson erupted at both Mansfield and Humphrey, shouting that they were failing at their jobs and demanding that they do as he had long said and enforce round-the-clock sessions. The two refused, but that evening Mansfield did extend the session to 12:18
a.m.
as a shot across the Southern Democrats’ bow. “That doesn’t scare us,” said Russell. “We’re ready for it.”
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That same night, Humphrey took Dirksen out for dinner, hoping to hash through their remaining differences. Nothing was settled, but the two men came away believing a final resolution was in the offing. The next morning Humphrey told Johnson, “We’ve got a much better bill than anybody ever dreamed possible.”

And, indeed, the May 13 negotiations proved the turning point they were all waiting for. The civil rights Democrats—along with Kennedy, who attended that day’s meeting—had decided to hold Dirksen’s feet to the fire, figuring that it was too late for him to back out of negotiations. When Dirksen asked that they vote on each title separately, Humphrey simply refused. Dirksen backed down, then agreed not only to drop his request for a new Title XII (which would have contained all the attorney general’s powers for the rest of the bill), but also accepted Flynn’s proposed “pattern or practice” language for both Title II and Title VII.
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Robert Kennedy then forced Dirksen to drop his opposition to the voting fraud provisions in Title I, which McCulloch had added and which Dirksen felt implicitly targeted his home state of Illinois, where voting irregularity was widespread and well known. Kennedy did not particularly care for the provision, either—ballot box corruption had allegedly won the state for his brother in 1960—but he insisted that they needed to placate McCulloch if they wanted the bill to get through. And again, Dirksen retreated. At this point a bit of prearranged drama from the liberal Joe Clark—who stormed out of the meeting in disgust, allowing Humphrey to show Dirksen the pressure he was under from the left—was overkill. Dirksen agreed to leave that part of Title I alone.
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After several hours, the negotiators emerged from the office, where they were greeted by inquisitive reporters. Sitting in a row—Dirksen, Kennedy, Humphrey—each rattled off his approval of the deal. “We have a good agreement,” said Dirksen. “The bill is perfectly satisfactory to me,” Kennedy said. “And it is to me,” chimed Humphrey. “We have done nothing to injure the objectives of this bill.” Dirksen was quick to note that the agreement was not yet binding on any other senators, and that each side would have to present it to their respective party conferences the next week. Unsaid, but understood, was the approval Humphrey would have to get from the civil rights groups.
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Aside from a raft of technical changes, the new agreement rested on two major alterations to the bill. On Title II, the attorney general could no longer sue in individual cases involving public accommodations discrimination, but instead could only file suits where there was a “pattern or practice” of discrimination in a particular town or region. Likewise, he could not file suits on behalf of individuals alleging employment discrimination under Title VII (though he could still intervene in them if he thought doing so would advance the government’s interest); however, he could file a suit where there was evidence of a “pattern or practice” in an entire industry. To make up for the lack of federal legal support for plaintiffs, the bill offered to pay the legal fees of successful litigants—a measure that seemed a sop at the time but became immensely important later on.

There were other, less important but still significant changes that might still derail the bill—for example, an agreement that, for the purpose of the legislation, union hiring halls would be treated as employment agencies, which were covered by Title VII. Labor representatives had already voiced unease about this plank, because it opened a new door for antilabor regulations.

Humphrey wasted no time in getting the agreement before Rauh, Mitchell, and the Leadership Conference. Mitchell worried that relying on the whims of the attorney general might be dangerous—what if a conservative took the post? But Humphrey was in luck: despite the bluster and criticism from the left over the preceding months, the conference proved more pragmatic than he had expected, and overall, the leaders of the conference were satisfied with the deal. “I thought it would be a lot worse,” Joe Rauh said.
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On May 19, the Republican and Democratic Party conferences met to discuss the agreement. No one expected much to come of the Democrats’ conclave in the old Supreme Court chamber, since the party was split into a large pro-bill majority and an angry, uncommunicative Southern minority. “Today is the 60th day of debate on the civil rights bill,” Mansfield said in opening the meeting. “That is a long time, too long.” He asked his colleagues to consider the debate in light of the upcoming elections—and the fate of the Senate itself. “In my judgment, the longer we rally with this measure, the worse it is going to be for the nation and for all incumbents.”
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Then it was the Southerners’ turn. Russell called the bill “a punitive expedition into the South. It is clearer than ever that this bill is directed at the South and no other part of the country.” Sam Ervin, surrounded by his usual pile of law books—props, really—dug into particulars of the deal, probing for constitutional inaccuracies. “Ervin made a general ass of himself throughout the conference by raising nitpicking points and by carrying on in a generally ridiculous fashion,” noted John Stewart. But Ervin’s request for a week to study the deal was granted.

The Republicans had actually begun their meeting first, at 9:00
a.m.
, but their meeting went much longer. Dirksen walked through each title, discussing his amendments as he went along. But he got significant pushback from Hickenlooper, who felt increasingly put out by the praise heaped on Dirksen. The Senate still had “monumental” work to do “to meet the real evils of this bill,” he said to reporters afterward.
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That afternoon Dirksen summoned reporters for what he called “a little sermon.” Dirksen was an orator of considerable gifts, but so far he had left his rhetorical tools in his office when speaking on the civil rights bill. Perhaps he had seen what the civil rights spirit could do for a good speech and wanted to try it out for himself. Or maybe he had planned on this all along. When a reporter asked him how he had decided to set aside his original criticisms of the bill, he said that “no army can withstand the strength of an idea whose time has come”—a refrain, which he claimed to have cribbed from Victor Hugo, that he would often repeat, in various versions, over the coming weeks. Civil rights, he said, fell into a long line of such ideas: the civil service merit system, women’s suffrage, child labor bans. He talked about the millions of black World War I and II veterans who fought for freedom but returned home to oppression. “Today the challenge is here,” he said. “It is inescapable, and the time has come to deal with it.”
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Dirksen did not, of course, come away from the negotiations empty-handed. His two key amendments to Title VII—to bar the attorney general from filing suits and to give state FEPCs priority in pursuing discrimination cases—were in line with the strong recommendations made by his allies in the business lobby, particularly in the Chamber of Commerce and the National Association of Manufacturers.
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The business lobby had become particularly concerned in November after an Illinois state FEPC commissioner had ordered Motorola, the telecommunications company, to get rid of a hiring test that he said did not “lend itself to equal opportunity to qualify for the hitherto culturally deprived and disadvantaged groups.” The Motorola case gained national news attention and became a brief cause célèbre among enemies of the bill, particularly John Satterfield and the CCFAF, who were looking for a way to revitalize their flagging fortunes in the capital.
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Pressure began to build on the national business lobbies from state and local chambers and chapters, especially from the South and Midwest. But the Chamber of Commerce, NAM, and other groups had stayed on the sidelines, both because they considered the civil rights issue too hot to touch and because they were dominated by large corporations that already had substantial nondiscrimination policies in place. Still, in the face of mounting concern from state-level chambers of commerce, the national chamber assembled a list of recommendations on Title VII, warning that the bill “could be seriously harmful to the conduct of American business,” which it then submitted to friendly senators. Over the signature of its president, Walter Carey, the chamber asked that Title VII be stripped from the bill; if that was not possible, then it should be limited to a role of conciliation and persuasion. And if even that was not acceptable, then, as a last resort, Congress should at the very least prune Title VII by allowing only individuals to sue—not coincidentally, Dirksen’s primary amendment to the title. James B. O’Shaughnessy, a representative of the Illinois Chamber of Commerce, later boasted about his group’s successful lobbying on the bill: “We like to feel that we had a small role to play in the drafting of the final version of Title VII, for after four delegate trips to Washington and numerous conferences of our labor relations committee, we developed sixteen pages of suggested amendments to the section, and many of them found their way into the statute.”
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But Dirksen was carrying less water for the business community than people then and later believed. Despite the chamber’s explicit demand that Title VII be stricken or reduced to a voluntary effort, Dirksen never extended those proposals to the negotiations. He began with the bare minimum the chamber asked for. And he readily agreed that the bill should cover the legal fees of successful litigants, even though that might open the door to a wave of lawsuits. In the end, Dirksen was no doubt eager to curry favor with the business lobby. Like most politicians, he was protecting his interests. But he was also trying to do what he thought was right—in this case, pass an effective civil rights bill.

Whatever his motive, over the next two weeks Dirksen worked assiduously to win over the twenty-five or so Republican votes he needed to deliver to guarantee cloture. The day after his Victor Hugo speech, which wags took to calling the “Sermon on the Mount,” he met with Republicans to discuss his changes to Title VII. Despite trying to incorporate his colleagues’ disagreements, Dirksen faced growing headwinds from Hickenlooper, who told reporters he had “serious reservations” about the bill, even with the changes. Dirksen’s intramural predicament got worse: on May 21, Norris Cotton of New Hampshire told Dirksen that Hickenlooper, Roman Hruska, and three or four other conservative Midwesterners had decided not to back cloture on account of their continued discomfort with Title VII. Still, Dirksen pressed on. One sticking point was how the amendments would be offered—the Republicans, wary of appearing anti-civil-rights, demanded that Dirksen pair with Mansfield and that they present a revised bill, known in technical terms as an “amendment in the nature of a substitute.” Dirksen agreed to take it up with Mansfield.
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On May 19, Dirksen pressed the remaining GOP holdouts in two separate meetings—and came away with enough commitments, however tentative, to declare victory. As always, national politics influenced the course of events. That day also saw George Wallace come unexpectedly close to winning the Maryland Democratic primary, which gave some conservative Republicans who were leaning against the bill a shot of confidence that public opinion was turning against it. At the same time, conservatives allied with Barry Goldwater, who was now adamantly opposed to both cloture and the bill, did not want to alienate the presidential front-runner before the all-important California Republican primary on June 2.
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On the other hand, the bill got a big boost on May 25 when two hundred clergymen from the big three faiths knelt on the Supreme Court steps, across from the Capitol, for a prayer service. “Help all who consider legislation,” intoned Robert Spike of the National Council of Churches, “to see the larger need, and to hear the voice of the oppressed rather than the complaints of the comfortable.” That same day, former president Dwight D. Eisenhower, after a long meeting with Roy Wilkins at his home in Carlisle, Pennsylvania, published a rare front-page opinion piece in the
New York Times
and other national papers urging Senate Republicans to support the bill. Calling for a “responsible, forward-looking Republicanism,” he insisted that “as the party of Lincoln, we Republicans have a particular obligation to be vigorous in the furtherance of civil rights”—as direct a shot as he could take against Goldwater, the man who would likely soon follow in his footsteps as the Republican presidential nominee. Whether the holdouts would heed the call of the clergy and the ex-president was a question hanging over the bill—that day a poll of all senators found that the bill still needed twelve more votes to win cloture.
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That morning staffers for the key senators on the bill sat down at the Department of Justice to iron out the remaining differences. Humphrey and Mansfield had readily agreed to Dirksen’s insistence that his amendments be offered all at once in a joint substitute amendment. Most of the remaining changes were to accommodate minor demands from Republicans—for example, specific language saying that nothing in the bill could be used to justify minority hiring quotas. The provision to exclude atheists from Title VII protection was dropped, and the waiting period for voluntary compliance on Titles II and VII was dropped from sixty to thirty days.
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