The Bill of the Century: The Epic Battle for the Civil Rights Act
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That same passion came out in the bipartisan leadership meeting. Though the administration was on record supporting the new FEPC title, and although Kennedy privately wanted it to remain, Katzenbach himself was hoping to persuade the leadership to undermine it so that it could be easily traded away later. Instead, McCormack delivered a moving speech about how much an FEPC would have helped his father get out from under the yoke of anti-Catholic, anti-Irish Boston. And in any case, he told Katzenbach, “I know the president didn’t ask for it, but a lot of water has gone over the dam since then.” It was one thing for Clarence Mitchell to insist on an FEPC; without McCormack’s support, no amount of Republican support could save it.15
At the same time, Halleck refused to back the FEPC plank, and he stormed out of the room. “Larry and I thought the meeting had been a disaster,” said Katzenbach. “I think this was the low point.”16
After several more days of backroom negotiating, McCulloch and Celler agreed to invite Robert Kennedy to appear before the full Judiciary Committee on October 15, for what turned out to be two days of testimony (an objection by wily Southern Democrats on the committee to holding the hearing in the afternoon, while the House was in session, forced the attorney general to return the next day).
This time Kennedy was ready. He appeared in the committee’s chamber in the Cannon House Office Building promptly at 10:00 a.m., with both Katzenbach and Marshall in tow. He began by emphasizing the underlying bipartisan goal of the civil rights bill. “Differences as to approach and emphasis must not be permitted to be escalated into the arena of politics—or the country will be the loser,” he said. He then walked through the administration’s “edits” of the subcommittee bill. On Title I, he agreed with McCulloch that the impoundment amendments were “unnecessary and objectionable”—that by setting aside registered ballots until a judge determined whether there had been widespread voter discrimination in the district, the amendment essentially “destroys the basic purpose” of the title. He did not, however, oppose the inclusion of state elections in the bill; as he and Katzenbach had decided earlier, whether or not they were explicitly included in the bill did not matter, since a mandate that federal elections conform to the law would still force state procedures to conform as well, unless states wanted to undertake the high cost of running their own elections on different days, without federal assistance. And Kennedy guardedly endorsed the new FEPC, though he warned that “it will take the highest statesmanship to avoid the morass of partisan politics which could only result in the failure to enact legislation at this session of Congress.”17
But he opened fire on the new, universal Title III. It was, first of all, an ineffective measure. A ban on violating someone’s civil rights would not have prevented the 16th Street church bombing, for example, since “injunctions cannot prevent crimes by unknown persons.” Moreover, it went much further than the 1957 version. Whereas that title dealt only with violations of voting rights, this one dealt with violations of any civil right: freedom of speech, freedom of assembly, freedom of religion—rights that the drafters clearly did not intend to protect with the legislation. And it would not do much against a police officer who hit a protester in the heat of the moment. Moreover, the bill would be a nightmare to enforce: What constitutes a civil right, and who decides? But most important, Kennedy feared that the creation of a federal mandate to protect individual rights would give state and local authorities an excuse to “abdicate their law enforcement responsibilities, thereby creating a vacuum in authority which could be filled only by federal force. This in turn—if it is to be faced squarely, Mr. Chairman—would require creation of a national police force. This is a step which is historically, and with good reason, abhorrent to our federal system.” In short, Kennedy told the committee that he was being offered powers that he did not want—and did not want any other attorney general to have, either.18
After his first day of testifying, Kennedy held a press conference where he was asked whether the bill could come together on a bipartisan basis. He struck a pessimistic note. “I think it is at a very tough and critical and crucial point. I think it is very tough,” he said. And though he kept his criticism ostensibly bipartisan, no one needed to be told where it was aimed. “I think the problem at the present time is that you haven’t reached a consensus after four months of people who are interested in obtaining passage of a civil rights bill. Some Republicans and Democrats in my judgment are going to have to really have some courage and statesmanship and also be willing to work some of these matters out and arrive at a consensus which would be acceptable, and that has not been done.”19
But if Kennedy showed his tough side on the first day, on the second he revealed a side that most Americans were not yet familiar with but that his brother and his inner circle had been seeing more and more of that summer: deeply empathetic, passionate, and morally driven. At one point Representative Elijah “Tic” Forrester, from rural Georgia’s Third Congressional District, asked how Kennedy could defend appeasing the demands of unruly civil rights protesters.
“If you were a Negro in Albany, Georgia, you would be protesting, Congressman,” Kennedy replied. “You wouldn’t accept it, you couldn’t accept it as a human being, the situation in Albany, Georgia.”20
“I would say this, Mr. Attorney General,” Forrester said, “if I were a Negro, I might do that, but a white man couldn’t do it. That is a right that the Negro has that a white man doesn’t have. You wouldn’t permit the white man to go down the street like that, would you?”
Kennedy kept hitting the basic point: the bill was not about white versus black, or North versus South, but about the government empathizing with a part of its citizenry that had been systematically denied its rights under the Constitution. “Congressman,” Kennedy said, “if I were treated by the white population as the Negro has been treated by the white population, I would take to the streets. And that is why I can’t understand your opposition to this legislation. You say they shouldn’t demonstrate and they shouldn’t protest, and yet you won’t support something that will remedy some of these problems. And that is what it comes down to basically.”
Kennedy and Forrester weren’t the only pair to illustrate the role of empathy, and its absence, in motivating the two sides of the civil rights issue that day. While defending Kennedy’s testimony, James Corman, a Democrat from Van Nuys, California, said, “I do not think anyone can get a feeling of the problem from the testimony. I think one day in Jackson, Mississippi and one day in Yazoo would do more to gain support for this legislation than six months of hearings”—at which point Edwin Willis, a relatively liberal Southerner from the Louisiana bayou, snapped: “I have spent 59 years, and you sort of get a different evaluation of the depth of it and perhaps a different impression.” Willis’s inability to grasp Corman’s point explains much about how Southern Democrats could dedicate so much of their lives to oppressing millions of black men and women.21
Nevertheless, Kennedy’s performance drew the predictable criticisms from the left. The black media was particularly incensed. The Chicago Daily Defender wrote that “Kennedy bowed to racist pressure in an appearance Tuesday before the House Judiciary Committee,” while the Los Angeles Sentinel urged readers to send telegrams to the committee liberals demanding that they stand fast with the subcommittee bill. “There is no reason for this kind of sellout,” said Clarence Mitchell. “The administration should be in there fighting for the subcommittee bill.” The LCCR sent Celler a three-page memo demanding that he remain committed to the subcommittee bill, while the American Jewish Congress, a strongly pro-civil-rights group that Celler had long championed, sent a letter to him demanding that he oppose all “administration proposals to soften the civil rights bill.”22
The mainstream press was more divided; while the Chicago Tribune blasted its criticism of his performance with the headline ease house rights bill, bob kennedy asks: attorney general says measure goes too far, the New York Times took the administration�
��s side, declaring, robert kennedy tries to prevent gridlock.23
But Kennedy’s testimony had its intended effect. McCulloch praised him for making “very useful, very constructive suggestions, some that I would make and have been making,” and even Lindsay set aside his personal grievances to note, “I think that it was helpful that he came up.” And Kennedy’s testimony gave cover for Celler to issue his own face-saving message soon after, telling reporters that he would “put aside my own feelings” and “exert every effort toward advancing a bill along the lines recommended by the Administration.”24
With Celler and McCulloch on record behind the administration, Robert Kennedy then sought out the non-Southern Democrats on the Judiciary Committee, many of whom were still unaware of the secret negotiations between Katzenbach and McCulloch. The morning after his appearance before the committee, Kennedy, along with Katzenbach, Marshall, and O’Brien, met with most of them in Celler’s office. Kennedy explained the deal: that without Republican support, the bill was dead, but that by making a few cuts McCulloch and his crew would get back on board. Title III had to go, and the voting rights, public accommodations, and FEPC titles would have to be pared back—though McCulloch in principle supported all three.25
If Kennedy was expecting intransigence, he was shocked to find agreement—though salted with a large dash of skepticism. “They simply could not accept that Halleck would ever agree to a bill as good as this, and therefore they thought they were being conned,” recalled Katzenbach. Suddenly, what looked like a lost cause just weeks before was on the verge of rescue—and in a better shape than anyone could have imagined. That afternoon Celler met with McCulloch, then announced that the committee would move toward a vote on the entire bill within a week.26
Lindsay continued to press for the subcommittee bill, asserting, without proof, that a majority of the Republicans on the full committee supported it. And Celler now had to find non-Southern Democrats willing to take a political risk and offer amendments to whittle back the bill per McCulloch’s demands: limiting Title I to federal elections, dropping Title II coverage for retail and personal service businesses, and ditching Title III altogether.27
Celler had found a willing accomplice on the amendment on Title I: Roland Libonati, a Chicago Democrat. Libonati was famous around the halls of Congress for having worked as Al Capone’s lawyer, though he denied any illicit ties to organized crime. (He was also known for his wonderfully quotable malapropisms; among his gems was the observation that fall was the time when “the moss was on the pumpkin.”) It is unclear why he agreed to offer the amendment: Libonati was a committed labor liberal who resented Robert Kennedy’s aggressive investigations into union-mob ties in the 1950s. Perhaps the answer is that he was simply a cog in the Chicago political machine, and more or less obliged to do whatever Mayor Richard Daley told him to do. Though no record exists, it is likely that someone in the White House went to the mayor and explained what they needed done, and Daley gave Libonati his marching orders.28
Libonati introduced his amendment on October 10. But rather than plaudits, he drew condemnation: protesters picketed his Chicago office, while his fellow Chicagoland representative (and one of the few blacks in Congress) William Dawson harassed him endlessly to change his vote. But the breaking point came when Libonati caught Celler in an interview on CBS News. As he related the story to a Time magazine reporter, “So then I’m sitting down, just like you and me are sitting here now, and I’m watching television and who do I see on the television but my chairman. And he’s telling ’em up there in his district that he’s for a strong bill, and that he doesn’t have anything to do with any motion to cut the bill down. So when I hear that, I says to myself, ‘Lib, where are we at here, anyway?’ And I think that if they’re gonna get some Republican votes anyway, and if the chairman says he doesn’t have anything to do with my motion, then certain representations that were made to me is out the window.”29
On October 21, toward the end of a late-afternoon meeting with a group of Harvard undergraduates who were visiting Capitol Hill to lobby for the bill, Libonati told the students that he was going to withdraw his amendment—a scoop duly reported in the next day’s edition of the Harvard Crimson. Word of Libonati’s plan quickly made it to McCulloch, who called Robert Kennedy’s office.30
Kennedy was out, so McCulloch left a message—which Kennedy later swore he never received. In any event, Libonati’s about-face the next morning came as a complete surprise to the rest of the committee. Celler opened the meeting by saying they had two amendments to vote on, Libonati’s and a move by William Tuck of Virginia to send the bill back to the subcommittee. Suddenly Libonati rose and declared, “Mr. Chairman, I move to withdraw my amendment!”31
Confusion coursed through the room. Someone shouted, “Who paid him off?” Before Celler could get control of the proceedings, Libonati’s motion was approved by a voice vote. Tuck then withdrew his motion, though a group of eight Southerners offered their own motion to remit the bill to the subcommittee, which lost by a vote of 9–21. Then Arch Moore, a moderate Republican from West Virginia, went in the opposite direction and moved to approve the bill, sending it to certain death before the Rules Committee—and if not there, then on the House floor.32
Within minutes, the administration’s carefully choreographed compromise had collapsed. Worse, the Moore motion had enough support to pass. The liberals and the Southern Democrats were happy to send an overloaded bill to the House, where even the most moderate Republicans would have a hard time swallowing it.
Moore’s motion required a roll call vote. But just as the clerk began reading through the committee members’ names, the noon bell rang, announcing the opening of the day’s House session. Thinking quickly, Texas Democrat Jack Brooks, a maverick liberal and close ally of the administration, raised a point of order that the committee had to come to a halt. Celler, relieved, adjourned for the day, leaving the Moore motion as the committee’s pending business.33
The next morning, Katzenbach went to see McCulloch, hat in hand, yet again. And yet again, McCulloch was furious that the administration could not control its party’s rank-and-file members, particularly on such an important vote. His old suspicion of a double-cross started to sneak up—after all, he had known the day before that Libonati was going to withdraw his amendment. How could the attorney general not have?34
Finally, Katzenbach convinced him that Libonati had gone off the reservation and that both Celler and the president were still committed to a deal. But McCulloch said that after the latest incident, there was no way their current deal would garner more than seven Republican votes—not enough for the bill to pass safely, and far too few to justify calling it a bipartisan vote with a straight face. A new deal would have to be struck, one that cut even further into the subcommittee draft, starting with the FEPC.35
Given his druthers, Katzenbach might have been fine ditching the FEPC; under the administration’s playbook, everything outside the original bill was just ballast that could be jettisoned in a legislative storm. But both the president and the Speaker had told him over the previous weeks that they wanted the title to remain, and so he was in a bind with McCulloch—or would have been, if not for a fortuitous conversation the previous afternoon in the office of an old friend, the New Jersey Democrat Frank Thompson. Katzenbach was desperate for ideas that might placate McCulloch, particularly compromise measures that would not concede too much of the meat of the bill.36
What about the Griffin bill? Thompson asked.
Katzenbach pleaded ignorance. The Griffin bill, Thompson explained, was a piece of FEPC legislation from a few years back—but instead of giving the commission cease-and-desist powers, it was required to sue in federal court. The agency would still have power, but the role of the courts would provide a built-in check on it. Better yet, Griffin was a Republican, whereas the version currently attached to the civil rights bill came from the office of the ultraliberal James Roosevelt. Republicans had rejoiced
when the Griffin bill was voted out of the House Labor and Education Committee, and they had been crestfallen when it did not survive the Southern-dominated Rules Committee. Swapping Griffin for Roosevelt would achieve several things at once: it would soften the bill; it would give the Republicans a trophy in their mission to shape, and win credit for, the bill; and, most importantly, it would raise the price for opposing the bill. How could Republicans oppose a title that they had championed just a few years before?
Katzenbach thought it was a brilliant idea. He cleared the idea with Robert Kennedy and O’Brien, then took it to his next meeting with McCulloch. The Ohio Republican was for it, and thought it would help the bill get through the Judiciary Committee. But he did not think Halleck would go for it—and without Halleck, they would never get the sixty rank-and-file votes they needed in the full House.
Over the next few days Katzenbach and McCulloch met constantly—including once at McCulloch’s apartment, to avoid being seen—and hammered out the rest of their new deal. McCulloch, perhaps impressed by the bipartisan gesture on the Griffin bill additon, did not ask for much else; his primary demand was the elimination of the Community Relations Service from the bill, a request Katzenbach gladly conceded.37
With a new compromise starting to gel, on the evening of October 23, Kennedy called the bipartisan House leadership to the Cabinet Room of the White House. The men entered through the Diplomatic Reception Room off the South Portico, away from the prying eyes of journalists in the West Wing. Along with Halleck and McCormack were Majority Leader Carl Albert of Oklahoma, Minority Whip Leslie Arends of Illinois, McCulloch, and Celler, as well as Vice President Johnson, Robert Kennedy, Katzenbach, and Marshall.38