The Bill of the Century: The Epic Battle for the Civil Rights Act (49 page)

Titles II and III—the bans on discrimination in public accommodations and publicly owned facilities—were only the most immediately visible parts of the bill. Other titles were more or less effective. Title I, for example, which banned the unequal application of voter qualification tests, came with a very weak enforcement mechanism and provided no help for blacks who were intimidated or unfairly rejected by local registrars. On July 3, a group of blacks tried to register to vote in Jackson but were denied. It was only with the Voting Rights Act of 1965 that the federal government gained real powers to stamp out voting discrimination.
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The ongoing struggles of African Americans to access the ballot box was not lost on Johnson. He now fully embraced the need for action on moral grounds—and political grounds as well. In the late 1950s, earlier than almost everyone else, Johnson had seen that the white South, the traditional base for the Democratic Party, would soon enough shift to the Republicans, and that his party needed a new base to keep up. Having already spent decades tilting, outside the South at least, toward black voters, he knew that an act to protect and extend their franchise would lock them in as solid Democratic supporters for generations.

At the signing ceremony on July 2, Johnson was already planning to tackle voting. He took Katzenbach aside and said, “What are we going to do next year in civil rights?”
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Katzenbach glared back. “Jesus Christ, Mr. President, we just spent two years on this bill and practically nothing else happened,” he said.

“Let’s get a bill,” Johnson said. “Let’s get a voting rights bill.”

Another plank, Title IV, required schools to develop desegregation plans and gave them assistance to do so. It also empowered the attorney general to sue if they did not. Title IV was broadly effective, creating, at least temporarily, a biracial educational system in the South. But more important to school desegregation was Title VI, ostensibly not a schools provision at all. It did, however, ban federal funds from going to segregated state and local programs, including schools—a provision that gained enormous weight with the Primary and Secondary Education Act of 1965, which opened the taps for federal largesse to flow to the nation’s school districts. With billions of dollars as a tempting carrot, many Southern school districts fell over themselves to desegregate.

Aside from Title II, the most important part of the bill was Title VII, banning employment discrimination. And yet at the time, many observers wrote it off as fatally weakened by compromise. Richard Berg, who worked for the Equal Employment Opportunity Commission for the first few months of its existence, wrote: “Title VII was the principal victim of the legislative compromises necessary to achieve passage of the entire bill.” Michael I. Sovern, a law professor at Columbia (and later its president), called it a “poor, enfeebled thing.” Without a commission empowered to sue on behalf of plaintiffs, they said, the law had little in it to compel compliance. “Impotence will frequently be met with intransigence,” Sovern wrote.
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It did not help that President Johnson dragged his feet on naming the EEOC staff and members, or that its budget was so thin that at times it had to beg other agencies to lend staff and support. When it opened its doors in July 1965, it was inundated with cases, part of a strategy by the NAACP Legal Defense Fund to highlight the commission’s inadequacy. Eventually, so many cases had been on hold for so long that courts decided it was acceptable to ignore the sixty-day statute of limitations for complainants waiting for a review. And the early members of the commission looked askance at the addition of sex discrimination to the title, on the premise that it had been an ill-considered legislative accident.
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Over time, though, the EEOC, and Title VII enforcement generally, began to gain strength. Like the unexpected impact on school desegregation from Title VI, the provision within Title VII to cover plaintiffs’ legal costs proved serendipitous: it fueled the emergence of an enormous civil rights bar, with thousands of lawyers specializing in workplace discrimination suits. According to Sean Farhang, a professor of public policy at the University of California, Berkeley, workplace discrimination suits today constitute about 18 percent of all litigation in federal courts, second only to petitions by prisoners requesting to be set free. Moreover, through the 1960s and 1970s, Congress and the courts regularly expanded and deepened Title VII’s reach; in 1971 the Supreme Court decided, in
Griggs v. Duke Power
, that under the Civil Rights Act, employers could not use tests or other tools that disparately affected a minority group—in effect going against the bill’s own authors, who insisted, after the Motorola case, that Title VII clearly allowed such tests. It was no longer necessary to prove that an employer had actively, purposely discriminated; it was enough to prove that minorities were adversely affected by company decisions, regardless of intention. And, in 1972, the EEOC won the power to sue, a power that had been stripped from it in the Senate negotiations with Dirksen.
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It is beyond the scope of this book to examine the entire post-enactment history of the Civil Rights Act. But one thing can be said with certainty: the act revolutionized American society by placing the federal government undeniably and forcefully on the side of African Americans. Though blacks had long benefited from federal policies, they had also been explicitly excluded from many of the New Deal public welfare programs, and they had sought in vain federal intervention against gross civil rights violations in the South. Congress had refused to pass legislation to enforce the 1954
Brown
decision, and both the 1957 and 1960 civil rights acts were relatively toothless; it did not take a cynic to conclude that Congress had passed the acts more to win over black voters in the next election than out of any conviction on behalf of black America. No one could lay that charge against the 1964 act or the people who made it possible. Thanks to them, the relationship between blacks and the federal government—and between both of them and white America—changed forever.

On the copy of the signing speech that Johnson gave to Humphrey, the president had inscribed, “Without whom it couldn’t have happened.” On an identical copy that he gave to Dirksen, he wrote simply, “Thanks.”
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The president could afford to be personally magnanimous to those who labored so hard to pass the bill, because he knew a truism about American political memory: no matter how many people worked to get a bill through Congress, it was the man in the Oval Office who would get the credit. And, almost immediately, accolades for the president’s performance began pouring in. In a July 5 news analysis, the
New York Times
credited Johnson as “the man who pushed [the bill] through Congress.” In its endorsement of Johnson for president that October, the
Baltimore Afro-American
likewise praised Johnson for breaking the filibuster.
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However, this was not an opinion shared by insiders, even those with an interest in promoting the achievements of the president. Without denying that the president played an important symbolic role, they cast doubt on the notion that he was the hard-driving general behind the bill. “I don’t recall that he had to get deeply involved as this played out,” said Larry O’Brien. Humphrey agreed: “We did not bother the president very much. We did give him regular reports on the progress of civil rights over at the Tuesday morning breakfasts. But the president was not put on the spot. He was not enlisted in the battle particularly. I understand he did contact some of the senators, but not at our insistence.”
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The press reported much the same during the filibuster. “As majority leader, the president was all muscle and scant conversation. In the present impasse, the criticism is freely heard that the reverse is true,” wrote the columnist Doris Fleeson in the
Washington Star
. “Reporters covering the civil rights story in detail agree that they have seen no traces of the old brooding and impatient Johnson presence that they learned to know so well during the Eisenhower years.”
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Meanwhile, those on the Senate side bristled at the suggestion that Johnson had played a central role in passing the bill. “Aside from reinforcing his support for the House bill and pushing Mansfield and Humphrey to get tough with the Southern Democrats, President Johnson did not become deeply involved in the detailed planning and negotiations,” wrote John Stewart. Frank Valeo was even sharper, saying that Johnson’s vaunted legislative skills were of little advantage when it came to passing the bill: “He never understood how it would be possible to do it by cloture. He’d already been away from the Senate for a period of time, and things change, attitudes change so fast. Unless you’re there all the time, listening to what’s going on and picking up reactions to the news everyday, you very quickly lose touch with the changing trends.”
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And while Valeo had every interest in promoting the role of his boss, Mike Mansfield, his account accords with what people were saying at the time about the president’s involvement—even what Johnson himself was saying. Johnson had tried to force Mansfield to pursue a more aggressive filibuster strategy; when the majority leader refused, Johnson took a backseat, either because he realized his influence was limited or because he thought Mansfield’s plan was a time bomb and he did not want to be too close to the pyrotechnics when it exploded. “Whatever Dirksen and the attorney general agree on,” he said in April, “I am for.” In other words, Johnson positioned himself so that he could plausibly claim the bill as his own should it pass, but just as plausibly distance himself should it fail.
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Nevertheless, over the decades, Johnson’s role in the bill’s passage has grown to mythic proportions. Recent accounts have him lobbying senators, handing out orders, and drawing the grand strategies that would carry the bill to his desk. The equal and in some cases even more vital roles played by Dirksen, Humphrey, McCulloch, Katzenbach, and the Kennedys, among many others, have been diminished or forgotten, while the important but hardly singular role played by the president has ballooned to the point where “Civil Rights Act” is more often than not preceded by the possessive “Johnson’s.”

But as the record shows, while Johnson did play an important role—most notably getting Harry Byrd to release the tax cut bill so that it could clear the Senate before the filibuster—he was just one of a cast of dozens. (Even his maneuverings with Byrd were of only hypothetical importance; the tax cut bill presented no procedural obstacle to the civil rights bill, only a political one, and no one can be sure what would have happened had the filibuster begun with the tax cut bill on hold). Meanwhile, Johnson’s personal lobbying efforts were few, and—like his efforts to win over Robert Byrd—as often as not failures. The only instance in which his efforts made a clear difference was in getting Carl Hayden to agree to withhold his vote against cloture—a helpful, but hardly decisive, achievement. And finally, Johnson’s strategic advice, though it makes for colorful anecdotes, was neither original nor particularly well heeded. By the time he told Humphrey to “spend time with Dirksen!” in February 1964, the Senate leadership had already spent six months devising a plan for winning over the minority leader. And Mansfield simply ignored the president’s insistence that he “get out the cots” and force a round-the-clock filibuster.

None of this is to suggest that Johnson did not play a central role in the bill’s success. His decision to put the full weight of the presidency behind the bill from virtually the moment he took office was courageous; though he saw political gain to be had from aligning himself and his party with the civil rights movement, he also understood the risks involved. What made the difference was his fundamental belief in the moral rightness of the bill, and his urgency to see that rightness turned into action immediately. Had Johnson wavered—had he even once suggested, in a press conference or interview, that Congress should cut bait and negotiate—he would have done immense harm to the legislation.

But it is important to remember that while Johnson played a central role, he did not play
the
central role. Humphrey, Dirksen, McCulloch, and Katzenbach—not to mention Rauh, Mitchell, and King—were arguably much more important. At the same time, we must remember that there was no single central character, no prime mover, but rather dozens of contributors. And while this lesson is particularly true for the Civil Rights Act, it is also true for the history of American lawmaking in general. One reason Johnson’s role in the bill became shorthand for the success of the bill itself is precisely that: when we talk about important actions by the federal government through history, we tend to let the presidents’ names become proxies for the dizzying complexity of a law’s actual history. Thus we remember it was Lincoln who freed the slaves, even though dozens of congressmen wrote and supported the laws that pushed him to sign the Emancipation Proclamation. We remember the New Deal as Franklin Roosevelt’s doing, as if he wrote and negotiated and revised every change in each law himself, rather than recognizing the critical work done by his staff and allies in Congress, let alone the social movements outside of the government that made them possible.

Nowhere is this disjunction more true than with regard to the Civil Rights Act, and yet there are few pieces of legislation that we more closely associate with a single executive figure. Johnson was pushed by the civil rights movement and its congressional allies as much as or more than he pushed them. And he came into the story in the middle. The Civil Rights Act was not his bill by any stretch. But the reason to recognize that fact is not in order to dismiss Johnson, who does deserve a large amount of credit. Rather, it is to come to a better understanding of how legislation works, and in doing so to grasp more firmly the course of American political history.