Guns or Butter

by Bernstein, Irving;

  I believe in the effective separation of powers and in a workable federal system, whereby State authority is not needlessly usurped by a centralized government. But, I also believe that an obligation rests with the national government to see that the citizens of every state are treated equally without regard to their race or color or religion or national origin. …

  No people can gain lasting liberty and equality by riots and demonstrations. Legislation under such threat is basically not legislation at all. In the long run, behavior of this type will lead to a total undermining of society, where equality and civil rights will mean nothing. … Not force or fear, then, but belief in the inherent equality of man induces me to support this legislation.

  On February 3 the House reached the heart of the debate—the offering of amendments. This was the supreme test for the South. Would Smith and his supporters have the votes to weaken or even gut H.R. 7152? They got off to a bad start. That day and the next the southerners offered nine amendments to Title I, Voting Rights, all defeated. Southern Republicans proposed two amendments that Celler and McCulloch accepted—granting defendants the same right to a three-judge court as the Attorney General would have and including Puerto Rico within the scope of the bill.

  The amendments to Title II, Public Accommodations, consumed two days. Despite the sensitivity of the subject, the debate was conducted in good taste except for a slip by, of all people, that model gentleman from Virginia, Howard Smith. A podiatrist who practiced alone, he pointed out, would not be covered by the law, but one who had his office in a hotel would be. He could not restrain himself: “If I were cutting corns, I would want to know whose feet I would have to be monkeying around with. I would want to know whether they smelled good or bad.” Upon reflection, he struck the remark from the Congressional Record. His motion, a restatement of the Thirteenth Amendment, was defeated 149 to 107. For a number of southerners this was decisive and they disappeared from the floor. The next afternoon, when several amendments lost, there were only about 30 of the 96 congressmen from the South in the House. All the other amendments were crushed.

  On February 6, Title III, Public Facilities, came up and all the proposed amendments were defeated except for another by a southern Republican which would have the government pay the attorney’s fee for a defendant who lost his suit. At first Celler objected but, when McCulloch insisted, Celler went along. Title IV, Public Education, sailed through smoothly. Six amendments were rejected and two accepted by the leaders. Celler and McCulloch, though concerned, accepted an amendment to Title V, Civil Rights Commission, offered by Ed Willis of Louisiana. It would not require the commission to investigate “the membership practices of any bona fide fraternal, religious, or civic organization which selects its membership.” Another amendment was accepted which eliminated the perpetual life of the commission and limited the term to four years.

  The debate on February 7 on Title VI, Federally Assisted Programs, was nasty. At a moment when McCulloch was out of the chamber, Oren Harris, Democrat of Arkansas, offered an amendment which would have drastically weakened the title and would have eliminated judicial review. Boggs spoke in support of the amendment. When McCulloch returned and learned of the speech Boggs had made, he became very suspicious. He knew that Lyndon Johnson and Hale Boggs were close friends and drew the not unreasonable, but incorrect, inference that this was another betrayal by Johnson. “Look!” McCulloch’s wife, Mabel, said to Roy Wilkins of NAACP, who sat next to her in the gallery. “Bill’s face is red. He’s mad!” McCulloch seized a microphone and stated angrily, “If we pick up this old provision which does not provide for judicial review, I regret to say that my individual support of the legislation will come to an end.” Celler had no doubt that he meant it and the House was shocked into silence. The amendment was crushed 206 to 80 with every Republican voting against it. Seven other amendments to Title VI also went down to defeat.

  The climax came on Saturday, February 8, when the House debated Title VII, Equal Employment. The Labor Committee had been working on this for several years and in 1962 had reported an equal employment bill. The next year the Judiciary Committee incorporated large sections of it into Title VII. It was necessary to conform the language and Celler proposed ten technical amendments acceptable to McCulloch, which the House routinely adopted.

  Now Howard Smith’s moment arrived. Section 704 was the heart of Title VII. It created in five places unlawful practices for an employer, a labor organization, an employment agency, or an apprenticeship training program, forbidding them to discriminate against “any individual because of his race, color, religion, or national origin.” These four factors had been used widely in prior federal executive orders and in state and local legislation. The Labor Committee in 1962 had added two new criteria, ancestry and age. On February 8 Smith dropped a bombshell. “Mr. Chairman,” he said, “I offer an amendment.” In the five places in the bill where the factors appeared, “after the word ‘religion’ insert the word ‘sex.’ ” With this extraordinary motion Smith opened up an extremely important new issue.

  Discrimination against women in the U.S. labor market was ancient and very widespread in hiring, in access to better jobs, in promotions, in wages and salaries, and in many other factors in the employment relationship. Two movements had emerged to grapple with aspects of this vast problem. The first was protective legislation enacted in the states during the Progressive Era to assist low-income female wage earners by establishing legal minimum wages, maximum hours, and adequate working conditions. At the federal level this became a basic objective of Franklin Roosevelt’s New Deal, which was revived during the Kennedy administration under the leadership of Esther Peterson, who was assistant secretary of labor and head of the Women’s Bureau. Such legislation won the support of the labor movement from which Peterson had come and from liberal northern Democrats. It was concerned with working women regardless of their race, color, religion, or national origin. During the Kennedy years Peterson had secured passage of the Equal Pay Act and had engineered the report of the President’s Commission on the Status of Women, which recommended an even broader program.

  The second movement championed the Equal Rights Amendment to the Constitution in order to guarantee women comprehensive legal equality with men. ERA was introduced into Congress in 1923. The movement was basically a one-woman crusade: Alice Paul, a former militant suffragist, and her National Woman’s Party. Paul deliberately kept her party small. Its appeal was to women of means in the professions and business whose political outlook was conservative and who were likely to be Republicans unless they lived in the South. The ERA was endorsed by business organizations. Richard Nixon and Howard Smith were supporters. John Kennedy was not. Lyndon Johnson had come out for the ERA when he was a senator, but swung the other way when he became President.

  In the twenties the two movements explored a merger, failed, and then developed a sour relationship. Under Kennedy, Peterson stacked the President’s Commission with anti-ERA members headed by Eleanor Roosevelt and its report urged use of the Fourteenth Amendment instead of the ERA.

  Martha Griffiths, the liberal Democratic congresswoman from Michigan and an ardent feminist, tried unsuccessfully to form a bridge between the movements in the sixties. But, when the civil rights bill began to work its way through the House, she quickly recognized an alternative: add “sex” to the proscribed factors in Title VII. As Griffiths wrote later,

  When I looked at the bill, I realized that the [Judiciary] committee had never really considered the rights of Negro women at all, or, if they had, they had simply believed that they would get approximately the rights of white women. I made up my mind that all women were going to take one giant step forward, so I prepared an amendment that added “sex” to the bill. Then I learned that a woman newspaper reporter had asked Howard Smith of Virginia to offer such an amendment and he had agreed. Judge Smith was the chairman of the Rules Committee and the leader of the conservative bloc, who would, if they could, h
ave killed the bill. I realized that Mr. Smith would get more than 100 votes just because he offered the amendment. I needed, if everyone voted, 218 votes to win. Without saying anything to anyone, I decided to let him offer it, and use my powers of persuasion to get the rest of the votes.

  As Griffiths put it, “I used Smith.” She needed help because only ten of the 435 members of the House were women.

  Smith later insisted that he was serious about proposing the amendment, that he sincerely tried to help women overcome discrimination in the labor market. This seems dubious in the extreme because his clear purpose was to defeat H.R. 7152, not to improve it. Donald Allen Robinson wrote: “His situation was desperate. Unless the civil rights coalition could be splintered, southern defenses against a broad civil rights bill appeared certain to be overwhelmed.” In their definitive book the Whalens agreed: “Smith counted on the amendment passing and making H.R. 7152 so controversial that eventually it would be voted down either in the House or the Senate.” Patricia Zelman wrote that Smith proposed his amendment “tongue in cheek.”

  This conclusion finds support in Smith’s ridiculous defense of his motion. He referred to women as a “minority.” Frances P. Bolton, the Republican congresswoman from Ohio, pointed out that, according to the census of 1960, there were two and a half million more females than males in the country. Nevertheless, Smith proceeded to read a letter from a female constituent who asked, in light of the “fact” that women were a minority, “what course our Government might pursue to protect our spinster friends in their ‘right’ to a nice husband and family?” Smith, evidently, was urging his amendment in order to provide breadwinners for aging single women!

  Celler was taken completely by surprise by the Smith ploy and he did nothing to raise the level of discourse. He said he had been married for 49 years and that women were a majority in his household. Yet the sexes lived in “harmony” and this was because he had the last two words—“Yes, dear.”

  Martha Griffiths spoke in defense of the amendment and the level of debate rose with her. Gunnar Myrdal in An American Dilemma, she said, had pointed out that “white women and Negroes occupied relatively the same position in American society.” The amendment would not make H.R. 7152 a comprehensive equal rights law. It would apply only to employment and, if the sex provision was rejected, the law would not even provide equality of employment. “You are going to have white men in one bracket, you are going to try to take colored men and colored women and give them employment rights, and down at the bottom of the list is going to be a white woman with no rights at all.” Griffiths added, “A vote against this amendment … by a white man is a vote against his wife, or his widow, or his daughter, or his sister.”

  Katherine St. George, the conservative New York Republican, attacked the protective legislation because, by limiting the hours women could work, it denied them higher pay. “Why should women be denied equality of opportunity?” Women, St. George said, did not ask for special privileges because there was no need for them. “We outlast you—we outlive you—we nag you to death.”

  Edith Green, the feisty liberal Oregon Democrat, was on the spot. She, of course, agreed with Griffiths about discrimination against women. She had been an author of the Equal Pay Act and had sat on the President’s Commission on the Status of Women. But she could not support the sex amendment. She was suspicious of Howard Smith’s motive and feared that the change might cause the bill to fail of passage. “For every discrimination that has been made against a woman … there has been 10 times the discrimination against the Negro … maybe 100 times as much humiliation for the Negro woman, for the Negro man and for the Negro child.”

  Most members of the House, clearly, regarded this as a no-win situation and did not want to be identified by a roll call. The House adopted Smith’s amendment by a teller vote of 168 to 133. A lady in the gallery cried, “We’ve won, we’ve won!” and was ejected. Without a roll call it is impossible to identify conclusively the groups that composed the majority. It seems reasonable to state that they were an unlikely coalition of southern conservatives, northern liberals, and women. Martha Griffiths had shrewdly calculated the correct strategy.

  The House then adopted two more amendments to Title VII. One extended coverage to retraining as well as training programs. The other created an exemption for church-controlled educational institutions to allow them to favor employees of their own faith. It was accepted in face of the argument by Celler and McCulloch that the existing exemption for religion and national origin where affiliation was a bona fide occupational qualification already dealt with the problem. That is, teaching and administrative positions in church schools were already exempt and other jobs, such as janitor, should not be. John Ashbrook, the Ohio Republican, got an amendment allowing an employer “to refuse to hire and employ any person because of said person’s atheistic beliefs.” It was later thrown out.

  On February 10 the House defeated 22 proposed amendments and accepted four, only that of William Colmer of Mississippi being of any consequence. It would permit employers, unions, and employment agencies to discriminate against Communists and members of front organizations who refused to register. It was adopted over Celler’s objection and was also later eliminated.

  Titles VIII and IX attracted little attention and were quickly dispatched. Robert T. Ashmore, the South Carolina Democrat, proposed a new Title X creating a community relations service to assist localities in resolving disputes over race, color, and national origin. Lyndon Johnson had made such a proposal in 1957, which was not adopted, and it was part of the original Kennedy bill in 1963. Celler and McCulloch, by now exhausted and eager to get the Republicans out of town for Lincoln’s Birthday, accepted the amendment even before Ashmore could speak for it.

  The Committee of the Whole dissolved itself and the members of the House answered to the call of the roll. The amended bill passed overwhelmingly 290 to 130. It was a bipartisan victory: 152 Democrats and 138 Republicans in the majority. In opposition were 96 Democrats (86 from the South) and 34 Republicans (10 from the South). Howard Smith had been steamrollered.

  The vote was a triumph for the Brooklyn street urchin and the Ohio plowboy. Celler was unstinting in his tribute to McCulloch. For himself he said that this was the greatest accomplishment in his 41 years in the House, “like I climbed Mount Everest.” McCulloch, a Scot who was spare with his words, took off at once with Mabel for a well-deserved holiday in Bermuda. Jane O’Grady stayed up all night to bake a huge quantity of “Equality Cookies,” sugar cookies decorated with an equals sign. She delivered them the next day to the congressional office staffs. “We had imposed on so many people and had been so ‘naggy,’” she said, “I just wanted to show our appreciation.”3

  Senate debate was scheduled to open on February 17, 1964. But the tax bill took the stage and the date was shifted to February 26. Consideration that day was brief and debate was again deferred, this time by the agriculture bill so that farmers would know its terms before the spring planting. Thus, H.R. 7152 did not reach the floor until March 9. The Democrats used the time to nail down their strategy. Their major players were Lyndon Johnson, majority leader Mike Mansfield, and whip Hubert Humphrey, who would steer the bill through the Senate.

  It did not take long to resolve the issue of Senate hearings. The notorious segregationist James Eastland of Mississippi was chairman of the Judiciary Committee. President Kennedy’s bill had gone to his committee in June 1963 and he had still not called hearings. The leadership could hardly place H.R. 7152 in the hands of a man whose fingers were covered with iron glue. They decided to place the bill directly on the floor. There were risks. The southern bloc would certainly scream about this unusual procedure, and some supporters, both Democrats and Republicans, would have reason to complain.

  But Mansfield, and Humphrey, had a much harder time with the President over cloture. This is an opportunity to meet two of the major figures in this book.

  Michael J. Mansfield was a
man of remarkable achievement who had done it the hard way. His parents were poor Irish Catholic immigrants who settled in New York City, where his father was a hotel porter. Mike was born in 1903 and was three when the family moved to Great Falls, Montana. He attended both public and parochial schools and dropped out in the eighth grade. Eager to see the world, he hopped on freight trains and even did some time in jail. All his life, Harry McPherson wrote, Mansfield remained “deeply Catholic.” Of his friendship with John Kennedy, Mansfield said, “We had a very, very close, very warm relationship.” For the laconic Mansfield that was a fairly long speech. Ted Kennedy would say later that his favorite statements were “yep,” “nope,” “maybe,” “could be,” and “don’t know.” This husbanding of words along with his tall lean frame made Mansfield, McPherson noted, “manly in a Western, Gary Cooper way—taciturn and forthright, a straight shooter.”

  Around the time of World War I, Mansfield served in the Navy, the Army, and the Marine Corps. He enlisted in the Navy at 15 and made seven Atlantic crossings before they learned that he was under age. He then spent a year in California with the Army and two in the Philippines, Japan, Siberia, and China with the Marines. He failed to rise above private first class. But he got hooked on Asia, learned Chinese, and would become a noted authority on the region.

  After military service Mansfield returned to Montana, where he met Maureen Hayes, a schoolteacher in Butte, and married her. “She put some sense into me, told me I ought to go to school and make something of myself. … Thank the Lord she did.” He took high school subjects by correspondence while he was enrolled at Montana State University. In 1933 he got a diploma and a B.A. simultaneously. He tried to get a job as a school teacher, but two Montana towns rejected him because he was a Catholic. During the Depression he returned to MSU for an M.A., awarded in 1934. He stayed on to teach history and political science, particularly Latin America and the Far East.