Time had not been on the side of the great general to whom Russell was continually being compared. When Lee, on the defensive in 1865 as Russell was on the defensive now, was desperately improvising one maneuver after another as Grant pressed him back and back, he had known in his heart that each stratagem was merely a delaying action that might postpone, but could not avert, defeat. Time was on Russell’s side, however. His battlefield was both sides of Capitol Hill. Southern strategy in Senate and House was coordinated; explains Strom Thurmond’s administrative assistant, Harry Dent, “No one had had to say anything, they [southern representatives and southern senators] had been doing it so long. Things were understood without any words having to be spoken.” But the Senate, with its filibusters, was the last redoubt. And in the Senate, time—the use of time, the use of delay while the days of the calendar drifted away—could, if enlisted on the side of a cause, mean victory even if majority opinion among the American people and majority opinion in the Senate itself, factors which in theory meant victory in a democracy, were united on the other side.
For Lee, there had been no time limit to the war, no point at which, if he could delay Grant until then, hold out until then, a final armistice would be declared, so that the South would not lose. But in Congress—in the Senate that was Russell’s final redoubt—there was always a time limit, always a deadline, always a point at which time would run out for supporters of civil rights if he could just hold out until then: the end of each two-year Congress. A bill that has not been passed at the end of a Congress dies, and must start over, from scratch, in the next Congress: must be reintroduced, must negotiate again all the preliminary procedures in both houses, must be passed again by both houses. The effectiveness of the legendary Senate rules and precedents as traps in which, year after year, decade after decade, hopes for social justice were ensnared and died was in many crucial aspects a function not only of the gavel but of the clock and the calendar. So long as a civil rights bill remained on the Senate floor, so long as the southerners were filibustering it to prevent it from coming to a vote, they could prevent any other bill from being brought to the floor—not a White House bill essential to an Administration’s program, not a bill essential to an individual senator’s political survival (for example, a bill he needed to get passed to satisfy his constituents, bills to authorize a public works project, perhaps, or, if the project had already been authorized, to have funds appropriated for its construction, in one of the twelve appropriations bills). So long as civil rights remained on the floor, these bills would be held where they were, held hostage, imprisoned in committee or on the Calendar, until the civil rights bill was removed from the floor. Senators who might have supported civil rights, seeing time running short at the end of a session, would become more amenable to dropping the civil rights bill (only for this session, of course, they could rationalize; it could be brought back in the next session).
A filibuster could be ended in only one of two ways. One was by a cloture vote to end debate and force a vote on the bill. That method would be difficult—very difficult. In 1963, sixty-seven votes, two-thirds of the Senate, were necessary to cut off debate so that a bill could be voted on; without such a vote a bill could not be voted on, could not be passed, could not become law. In the history of the Senate, there had never been enough votes to end a civil rights filibuster by cloture; since 1938 alone, there had been eleven such attempts, and every one had failed. And Johnson, in his brief time in the presidency, had already found there were still “not enough votes” for cloture. Or a filibuster could be ended if its sponsors voluntarily withdrew it from the floor, thereby surrendering by abandoning the bill and admitting defeat. And therefore as the end of a session grew closer, as time grew short, it would be not merely individual senators but the White House, with its vital major measures, like the tax cut and education bills (not to mention the appropriation bills), still being held hostage, that would begin to feel pressure to obtain their release by withdrawing the civil rights bill.
And Johnson recognized something else. Not only had the strategy already been implemented, it was already working. Even while Kennedy had been in Texas, the southerners had been reinforcing their lines. One of the eight unpassed appropriations bills, for example, was the measure that would fund the operating expenses of three departments—State, Justice and Commerce. Sent to Capitol Hill by the White House, like the other appropriations measures, early in the year, it had been passed by the House on June 18. Then it had been referred to the Senate Appropriations Committee, which referred it in turn to a subcommittee chaired by John McClellan of Arkansas, which referred it in turn to a subcommittee of McClellan’s subcommittee—the “Department of Commerce and Certain Related Agencies Subcommittee of the Subcommittee on Departments of State, Justice and Commerce,” as this final subcommittee was familiarly known—which was chaired by Spessard L. Holland of Florida, but with McClellan as its dominant member. McClellan was a tough, very shrewd, subtle legislator. During Johnson’s days as Leader, a young staff member had once reported back to him on negotiations with McClellan that the staffer felt had gone well; “Unzip your fly and take a look,” Johnson had told him. “There’s nothing there.” McClellan, he said, “just cut it off,” with a razor so sharp “you didn’t even notice it.” During the five months since June 18, McClellan had never even hinted at any connection between the State-Justice-Commerce appropriations bill and the civil rights bill. He had simply found a number of projects unrelated to either measure with which to occupy himself: high-profile projects—an investigation of a possible scandal in a Defense Department award of a contract for the TFX fighter plane; televised hearings about the Mafia. “Everybody could see how busy McClellan had been,” a Washington columnist, one of the few who glimpsed the strategy, was to note. “Nobody could prove that he was holding up an appropriations bill deliberately to slow down the legislative process and thus jam up the civil rights bill and other legislation”—like the tax cut bill—that “he didn’t fancy.” But the subcommittee of the subcommittee had been too busy to hold even a single hearing on the bill, and when, on November 21, an angry liberal, Joseph Clark of Pennsylvania, introduced a resolution on the Senate floor that would have taken the bill away from Appropriations and brought it to the floor for debate, vote and, hopefully, passage, the presiding officer had asked if there were any objections, and Richard Russell, sitting at his desk, had raised his arm, and said calmly, “I object.” The two words meant that a vote would have to be taken first, not on Clark’s resolution, but on Clark’s motion to bring the resolution to the floor. There could be a debate on that motion—and the debate could continue as long as Russell’s southern senators wanted it to continue; there could, in other words, be a filibuster against the motion to bring the resolution to the floor. And if the filibuster was, by some chance, ended and the resolution made it to the floor, there could be a debate on the resolution itself, and then a filibuster against any attempt to bring the debate to an end and actually vote on the bill.
The State-Justice-Commerce bill was just one of the eight appropriations bills that had not yet been released and reported to the floor by the Senate Appropriations Committee, which of course would act only after the bills had been reported back to it by its subcommittees. The Appropriations Committee was dominated by southerners and their allies, so each of the remaining bills was in the hands of a subcommittee dominated by the South, stacked deeply enough with southerners and their allies to ensure that in the unlikely event that a revolt should be mounted against a subcommittee chairman, it would have little chance of succeeding. And even if a bill was reported out by a subcommittee, it would still have to be voted on by the full twenty-seven-member committee, and the date of the vote would be whatever the committee’s chairman, Carl Hayden of Arizona, staunch ally of the Southern Caucus, decided.
The stalemate on Capitol Hill was “unprecedented,” the Congressional Quarterly said. A new continuing resolution had been proposed to pr
ovide funds until January 31 for the agencies affected. If it was approved, “it will be the first time in memory that Congress” has “been forced to provide for such a blanket carryover,” the Washington Post noted. The appropriations backlog had, in fact, resulted in another situation which not even the oldest congressional observers could recall: an Administration was in the latter stages of drawing up the budget for the next fiscal year—in this case the budget that would cover the year beginning July 1, 1964, the budget about which the troika had conferred with Johnson—while Congress had not yet passed bills to make funds available for the current fiscal year. Nevertheless, a continuing resolution seemed the only choice; Russell’s troops weren’t budging, and neither were Republican conservatives, as they were pleased with the results of the delay. The GOP’s Mundt (who sat on no fewer than six of the twelve Senate appropriations subcommittees) said that since “already too much money is being spent, and spent too rapidly, I am perfectly content to let the appropriations bills wait until next March.”
And appropriations were just some of the bills that Congress had not sent on to the White House, and the list ran on beyond major measures like Kennedy’s education bill. Bills before Russell’s own Armed Services Committee had not moved at the anticipated pace; some were not moving at all. Bills were not the only problem. Nominations had been made a part of the strategy; the hearings on Kennedy nominees, for example, were droning on endlessly.
THE MOST IMPORTANT HOSTAGE being held to stop the civil rights bill was of course the tax cut bill.
Kennedy’s pleas for passage of the tax legislation, now in its eleventh month before Congress, had been reiterated shortly before his departure for Texas. “This nation urgently needs [its] earliest possible passage,” he had said on November 16. “Clearly no single step can be more important … as insurance against recession.… This is a good bill, and we need it now.” In addition to Harry Byrd’s other reasons for holding the tax bill in his Finance Committee, however, another reason was the civil rights bill.
No one understood better than he the horrific consequences that would follow the enactment of such a bill. The Brown decision had been bad enough. When a federal judge had issued a ruling to enforce it in Byrd’s native Virginia, the senator had pointed out the dangers. Six-year-old children of both races were going to be “assembled in little huts before the bus comes, and the bus will then be packed like sardines,” he said—and everyone knew what would come of that: “What our people most fear is that by this close intimate contact future generations will intermarry.” Intermarriage! Miscegenation!—the “mongrel race” of which Dick Russell warned. Byrd had called for “massive resistance by the white people of this country” to all court rulings which might foster integration.
And now there had come upon the South this new civil rights bill. He was ready to do his part to stop it. He didn’t let the fact that Kennedy’s decision in June to send civil rights to Capitol Hill had played into the South’s hands make its way into Washington or New York newspapers, but talking that June to a Richmond TimesDispatch reporter who was an old friend, he let that fact slip, saying, as the reporter summarized his views, that “the new civil rights legislation from President Kennedy would bring on a Senate filibuster that … would probably delay hearings on the tax bill before the Senate Finance Committee.” The tax bill hearings, in other words, would not be brought to an end; they would still be going on—the bill was not going to be freed from the Finance Committee—until the civil rights bill had been disposed of, either by being withdrawn or by being sufficiently weakened. That had been back in June. It was five months later now. The civil rights bill hadn’t been disposed of—and Byrd was still holding his endless hearings on the tax bill, implementing Russell’s strategy of delaying Administration bills in the Senate so that they would still be available as hostages against civil rights when the rights bill came over from the House. Kennedy had handed him a hostage, an extremely valuable hostage, and he was holding it fast. If the President wanted his tax cut bill, he was going to have to abandon or gut his civil rights bill. Other southern committee and subcommittee chairmen were doing their part, holding their own hostages. If you don’t get your other bills “locked and key,” Lyndon Johnson had warned, these other bills would be stalled. His advice had not been heeded. And the other bills were stalled.
AND NOT ONLY had the civil rights bill not yet reached the Senate, there was no indication of when it would.
The first step in the southern strategy of denying supporters of civil rights sufficient time to pass the bill in the Senate was to delay the moment at which the Senate could begin considering the bill—to delay, in other words, the time at which the bill came over from the House, to have Chairman Smith keep it bottled up in his House Rules Committee as long as possible, and Smith had already begun doing that.
On November 21, after a five-month-long battle in the House Judiciary Committee, the bill had finally been reported out—not to the House floor, but only to Smith’s Rules Committee, since no bill can go to the House floor without an accompanying “rule” setting the length of debate and whether amendments to the bill can be offered. On the morning of November 22, at about the time Kennedy was speaking at the Chamber of Commerce breakfast in Fort Worth, House Speaker John McCormack was asking Smith when Rules might take up, and report out, the bill, so that the House could vote on it; Smith had said blandly that he didn’t know. Not enough time remained to hold hearings before the Christmas recess, he said. The hearings would have to begin after Congress reconvened in January.
Trying to bargain with him, McCormack said that if Smith would agree to hold hearings before the recess, he in return would agree not to call the bill up for floor action until after Congress reconvened. Smith wasn’t interested in bargaining. He told the Speaker he wouldn’t agree to anything. He refused even to say when in January the hearings would begin, or how long they might last after they had begun. He would discuss that matter with members of his committee, he said, but he wouldn’t begin those discussions until after Congress reconvened. When, on November 29, Johnson asked McCormack, “He won’t give you a hearing of any kind [before the recess]?,” McCormack’s reply was a flat “No.” “He was frank about it,” McCormack said. “He won’t do anything to help [the bill] along.” Asked about his plans for the bill by the Washington Post, Smith was equally frank. “No plans,” he replied. He would make plans in January, he said.
Smith’s statement to McCormack—that he would not begin discussing the starting date and the duration of the Rules Committee hearings on the civil rights bill until after Congress reconvened—had ominous implications. If he had not agreed before the Christmas recess on a date for the beginning of the hearings, what would begin when Congress reconvened was not the hearings but only the discussions with committee members: the negotiations between Smith and liberal committee members over the date. And if Smith had not agreed before the recess on a date by which the hearings would end, that date as well would have to be negotiated in January. Negotiations with Judge Smith could be lengthy negotiations. The hearings themselves might not begin until quite some time after Congress had reconvened.
Understanding the strategy, Johnson explained it to people whose support he needed. “He [Smith] won’t do one damned thing,” he told Robert Anderson in a telephone call on November 30. “His idea, of course, is that he’ll run it [the civil rights hearings] over until January. And then in January they’ll be late coming back [getting back to work after the recess], and he’ll piddle along and get it into February, and then maybe they won’t get it out [of the full House] until March. And then in March, the Senate will be able to filibuster it until it goes home, and there’ll be nothing done.” Understanding it, he explained what had to be done to defeat it—to, for example, break the Rules Committee impasse immediately, before Christmas, 1963, since otherwise there would be little hope of passing civil rights by July, 1964.
“We’re going to have to do it now,�
� he told Katharine Graham in another call. “If we don’t, they’re going to start quitting here about the eighteenth of December, and they’ll come back about the eighteenth of January. Then they’ll have hearings in the Rules Committee until about the middle of March. And then they’ll pass the bill and it will get over [to the Senate], and Dick Russell will say it’s Easter and Lincoln’s Birthday, and by the time he gets them [the civil rights bill], he will screw them to death, because he is so much smarter than they are.” Understanding the strategy, Lyndon Johnson understood that it was working—both parts of it. The southern tactics were designed to prevent any progress on the civil rights bill until Congress reconvened in 1964—to keep the bill stalled during the three weeks remaining before the Christmas recess—and that’s what the South was doing, at both ends of the Capitol. And it was far from clear that progress would be made in January; on the main battlefield, the Senate, Byrd’s refusal to accelerate his pace meant that his hearings might not resume until Congress got down to business in mid-January; the amendments to the tax bill would still be before his committee then, still to be debated and voted upon, when the civil rights bill arrived in the Senate. The tax bill would still be imprisoned in committee, still available as a hostage.
And of course the civil rights bill wasn’t even in the Senate yet—and there was no schedule to get it there. Chairman Smith was refusing to even discuss the Rules Committee’s hearings on the bill. His tactic (in Johnson’s words, to “run it over into January,” to “piddle along and get it into February”) was already under way. If civil rights wasn’t moving through the congressional roadblocks before Christmas, the chances of its passing in July were slim.
The Passage of Power Page 75