The Bill of the Century: The Epic Battle for the Civil Rights Act (5 page)

The administration’s single biggest offense against civil rights, in its advocates’ eyes, had come a few weeks before the Lincoln’s birthday event, when Kennedy refused to back a move by Senate liberals to reform the Senate’s infamous filibuster rules. The particular rule in question, number 22, set the requirements for bringing an end to a debate and moving to a vote on legislation—in other words, how many votes it would take to end a filibuster, the Southerners’ most powerful and effective tool against civil rights legislation. The rule required two thirds of the senators present in the chamber to vote for an end to the debate, or “cloture,” meaning that just handful of senators could prevent the majority from working its will.
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Given that the Southern-bloc senators could almost always draw on conservative Republicans for the balance of those votes, the liberals argued that the current rule set too high a bar. And indeed it did: the filibuster was almost never defeated, and had never been broken on a civil-rights-related matter. Liberals had pressed for changing Rule 22 at the start of every session for the past fourteen years, only to see their efforts quashed for lack of broad support in the Senate and executive leadership in the White House.
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But now, in early 1963, civil rights forces thought things would be different. Although the liberals continued to lose their annual reform campaigns, the vote counts were getting closer each time. In 1957 Johnson, as majority leader, had tabled a similar motion to reform Rule 22, but it had failed by only seventeen votes—its best showing yet. And in 1958 a wave of young, liberal senators had won office, including Phil Hart of Michigan, Edmund Muskie of Maine, and Eugene McCarthy of Minnesota. By 1963, these men had begun to figure out how the Senate worked, and they were eager to make a renewed push for Rule 22 reform.
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Still, for all the changes in the Senate, the decision over whether and how the body’s internal rules were applied still rested, to a great degree, with the White House, and in particular with Vice President Lyndon Johnson. Not only did Johnson still pull weight in the chamber that he had dominated as majority leader during the 1950s, but as the president of the Senate he ruled over procedural questions. Civil rights leaders hoped that Johnson’s commitment to the 1960 Democratic platform, which called for allowing a simple majority of senators to amend the body’s governing rules, meant that this time they could count on him.

The debate over Rule 22 opened on January 14 with a motion by New Mexico Democrat Clinton Anderson, and almost immediately the Democrats ran into trouble. Johnson would once again disappoint the liberals: that afternoon he had his lieutenants out chatting with senators and the press about how the campaign would not only fail, but suck up valuable time and political capital, resources that the White House would rather use for other items on its agenda. The liberals tried repeatedly to get Johnson to issue a statement in their favor, or even any statement at all. Finally, on January 21, Johnson made clear what was already suspected: he would play Pontius Pilate and refuse to rule, which in effect meant siding with the Southerners and their insistence that the current requirement, which was the standing interpretation of the Senate’s governing rules, remain. The debate limped on, but on January 31, Anderson’s motion was tabled, effectively ending the debate.
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Conservatives cheered. The civil rights community mourned. On February 7, Joe Rauh released a statement lambasting Johnson for failing to act on Rule 22 at the moment when, Rauh and others believed, even a little pressure from the executive branch could have made the difference. “Vice President Johnson has demonstrated once again that his first loyalty is to the Southern racists,” Rauh wrote. “A majority of the Senate favored a change in the filibuster rule but Vice President Johnson made that impossible.”
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In a letter to Francis Biddle, a battle-hardened Washington liberal who had mentored him during the Franklin D. Roosevelt administration, Rauh let loose in despair. “I know of no one who has been watching the Senate,” Rauh wrote, “who does not feel that Johnson’s rulings were inexcusably wrong and cost us our chance at changing the filibuster rule and enacting civil rights legislation.” Thanks to the vice president, years of work had been lost. “Some of us who have worked for a decade believing that one day we would have both a majority in the Senate and a favorable vice president and when that day came the rules would be changed,” he added. “The heartbreaking thing is that when we finally got a majority of the Senate ready to go, we had lost a favorable vice president.” Without a favorable vice president, there could be no Rule 22 change. And with Rule 22 intact, there could be no hope of defeating a Southern filibuster and enacting civil rights legislation. “I personally do not look for any change in this decade,” Rauh concluded.
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Any attempt to comprehend Kennedy’s civil rights position must also be an exploration of the liberal establishment’s position. To understand why Kennedy did what he did (or did not do), it is necessary to understand where he was coming from.

By the middle of the twentieth century, the black migration from the rural South to the industrial North was in full tilt, in the process revolutionizing Northern cities and urban politics. But for most Northern whites, the black experience was still an abstraction—particularly for wealthier whites, who were largely insulated from the sharp edge of social change. Even in cities where black populations were already quite large, their day-to-day struggles with poverty, low-wage jobs, and discrimination was filtered and mitigated through a system of political feudalism, in which a few black ward heelers would promise votes to white candidates in exchange for political favors. “Those running for office in the Democratic Party looked to just three or four people who would then deliver the Negro vote,” recalled Robert Kennedy, “and you never had to say you were going to do anything on civil rights. You never had to say you were going to do anything on housing. It was mostly just recognition of them.”
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Moreover, when it came to the South, the Democrats in particular had an enormous incentive to ignore civil rights, lest they run afoul of the powerful Southern Democrats. Every aspiring liberal senator knew first- or secondhand what would happen if he took on the South. In the spring of 1949, the new senator from Minnesota, Hubert H. Humphrey, came into office as a national civil rights celebrity, having made a fiery speech at the 1948 Democratic convention that sealed a place for a strong civil rights plank in the party platform. When he arrived in Washington he had more than seven hundred speaking invitations waiting for him. He dove into the fray immediately; within his first hundred days in office he had called for loosening Rule 22 and submitted legislation to make lynching a federal crime and, separately, to create a federal commission on civil rights.
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The Senate leadership, seeing Humphrey as a potential threat, acted preemptively; he was the only new senator not to receive temporary office space, and he was passed over for plum committee assignments, landing on the unimportant Post Office and Government Operations Committees. One day, early in 1949, Humphrey entered the Senate cloakroom to find Russell conversing with a group of other Southerners. Speaking in a way to appear confidential, while still making sure Humphrey heard him, Russell said, “Can you imagine the people of Minnesota sending that damn fool down here to represent them?” As Humphrey—and others who saw or heard of this—quickly realized, “I was not going to make it into the Senate ‘Club’ on the strength of civil rights.” On the contrary, the strict hierarchy of seniority, the collective power of the Southern Democrats, and the culture of compromise that dominated the postwar Senate came together to militate against anyone striking out on an issue as thorny as civil rights—a lesson that someone as savvy as John Kennedy would have absorbed within the first few months of his Senate career, if not before.
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The president also understood what it would take to get civil rights legislation through: careful planning, endless negotiations, and the stamina to wait out a Southern filibuster while the rest of his agenda sat on the dock rotting. It was not a question of his commitment, he would tell people, but a matter of political realism. “Nobody needs to convince me any longer,” he told Martin Luther King Jr. in early 1961, “that we have to solve the problem, not let it drift into gradualism. But how do you go about it? If we go into a long fight in Congress, it will bottleneck everything else and still get no bill.” Nor did anyone he respected try to convince him otherwise: as Kennedy’s brother Robert later told the
New York Times
journalist Anthony Lewis, “There wasn’t anybody who was calling for civil rights legislation that could really give any leadership in getting it through.”
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Meanwhile, opposition from the South against his entire agenda proved more robust than the president had expected, even though he came from the Senate and had worked with staunch segregationists like Richard Russell and James Eastland for years. Kennedy simply did not understand how central segregation was to the Southern politician’s worldview, a reality upon whose shores his domestic agenda crashed time and again, any time it even came close to challenging Jim Crow: education, health care, rural development, housing. “The Kennedys,” said Arthur Fleming, Eisenhower’s last secretary of health education and labor and a future chair of the Commission on Civil Rights, “did not anticipate the kind of things that went on in Mississippi. They honestly did not believe the kind of things that people wanted to do to turn back the civil rights initiatives.”
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That view was rooted in Kennedy’s imbibing, long before coming to Congress, the redeemer’s myth of the New South: that, left to its own devices, smarter, cooler heads would prevail in the region and, by and by, it would evolve toward racial equality. This was the story he tried to tell in a chapter in his book
Profiles in Courage
about the Mississippi senator and Supreme Court justice L. Q. C. Lamar, who drafted his state’s secession ordinance yet later eulogized the abolitionist Massachusetts senator Charles Sumner. (In the same book, Kennedy lambasted the abolitionist Representative Thaddeus Stevens as “the crippled, fanatical personification of the extremes of the Radical Republican movement.”)
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At the same time, the president and his advisers understood the need for some sort of action on civil rights. In late 1961, Lee White, who took over as Kennedy’s point man on civil rights after Wofford’s brief tenure, penned a memo for the president arguing for strong action in the coming year. He noted that there was mounting pressure for legislation from the civil rights community, and inaction could hurt the Democrats in the midterm elections. And, he wrote, the Republicans were winning points by criticizing the administration, without offering any proposals of their own. “Javits, Keating, et al. have had great fun twitting the administration,” he wrote. “As noted, the pressure surely will increase. It seems obvious the administration must act, the questions being what, how and when.” As to the “what,” White recommended boldness. “Any package of relatively easy items (e.g. anti-poll tax and literacy legislation) would not satisfy the civil rights groups” while still angering the Southern Democrats. “Thus it should be a strong package or none at all.”
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But Kennedy remained unconvinced. His congressional liaison, Larry O’Brien, warned that a strong civil rights bill from the president would endanger the rest of his agenda, and still face a strong filibuster. When his brother and Burke Marshall pressed White’s case and urged him to issue a voting rights bill, Kennedy told them to go for it—but as a Department of Justice bill, not one from the administration. The bill they sent, introduced in the Senate on January 25, 1962, by Majority Leader Mike Mansfield, was much smaller than what White had urged: it would exempt anyone with a sixth-grade education from having to take a literacy test before registering to vote. Not only did the Southerners filibuster it, but the pro-civil-rights forces in the Senate did almost nothing to defend it. The bill’s sponsors brought the filibuster to a vote twice, losing both times, the second by a shockingly low 53–43 vote.
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Robert Kennedy was dismayed. “I went up and testified,” he later told Anthony Lewis. “Nobody paid the slightest bit of attention to me. We got no place with that. Nobody paid any attention.” Though the bill was hardly enough to get civil rights groups motivated, it quickly became clear that nothing short of an all-out war against the Southern Democrats would get a bill through.
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The issue, Marshall and others concluded, was that “the Negro and his problems were still pretty invisible to the country as a whole.” And without public support, there was little incentive for most senators to risk offending their Southern superiors. Marshall later recalled one particularly revealing conversation with Mansfield. “I asked him what we should tell people that were interested in civil rights legislation,” Marshall said, “and he said, ‘Tell them the truth.’ And I said, ‘What is the truth?’ And he said, ‘That you’ll never get a civil rights bill with a Democratic president.’”
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To be fair, early on Kennedy did take steps to make the passage of civil rights legislation at least theoretically easier. In 1961 he and Sam Rayburn, the Speaker of the House, drove through an expansion of the House Rules Committee, the panel that decided which legislation made it to the House floor, which had been run for years by the archsegregationist Howard Smith. Enlarging the committee diluted Smith’s power, making it easier, at least in theory, to get civil rights bills passed. But for the most part, the president focused his efforts on areas where gradual but concrete achievements could be obtained by the White House on its own: executive orders, Department of Justice litigation, nondiscrimination in government contracts, and the promotion of blacks within the federal bureaucracy.
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