An Idea Whose Time Has Come: Two Presidents, Two Parties, and the Battle for the Civil Rights Act of 1964

by Todd S. Purdum

  But Representative Ed Willis of Louisiana countered that the bill was “the most drastic and far-reaching proposal and grab for power ever to be reported out of a committee of the Congress.”

  The battle was under way.

  * * *

  IF THE CHALLENGE IN the Judiciary Committee had been to keep the bill from being loaded up with strengthening amendments that would make it too hard to pass, the challenge on the House floor was to prevent it from being weakened by amendments from the segregationists. That would be no easy job, because the practical effect of the House’s sitting as a Committee of the Whole was to permit members to vote on proposed amendments without having their votes recorded by name. And because just one hundred members constituted a quorum in the Committee of the Whole, a hostile amendment could easily be passed with a comparative handful of votes, unless enough pro-civil-rights members were present to block it. That required the pro-civil-rights forces to make sure there were sufficient numbers of pro-civil-rights members on the floor whenever a vote was near, to head off any attempted mischief. And that meant that Clarence Mitchell, Joe Rauh, and their allies would have to stake out the House galleries at all times, able to recognize members by face as they appeared. Moreover, because House rules prohibited note taking in the visitors’ galleries, Mitchell and his team would have to remember the running tallies in their heads.

  To carry out the effort, the Leadership Conference set up temporary headquarters in the dowdy Congressional Hotel across the street from the House office buildings on Capitol Hill, where the spotters convened each morning to review the lay of the land before the House went into session. To supplement his own work, Mitchell drafted about a dozen diligent young people to patrol the hallways of the Capitol and the two adjacent House office buildings, corralling friendly members who might be absent from the floor. They worked under the watchful eye of Jane O’Grady, an energetic twenty-four-year-old graduate student fresh from the University of California at Berkeley, with a master’s degree in political sociology, who had come to Washington as a lobbyist for the Amalgamated Clothing and Textile Workers Union. Mitchell “was as patient and as kindly as could be,” O’Grady would recall, “and he came up with things for us to do, even if we were not the most knowledgeable.”

  Each morning, O’Grady and her troops—who would quickly be dubbed “O’Grady’s Raiders”—stationed themselves in the offices of sympathetic House members like Frank Thompson, the New Jersey Democrat who was leading the Democrats’ efforts to corral votes. Thompson had been recruited for this task because the majority whip, Hale Boggs of Louisiana, was a southerner and could not afford to be seen as publicly supporting the bill, even though he was a close ally of Lyndon Johnson.

  Thompson and his colleagues devised a buddy system in which seventeen pro-civil-rights members would each be responsible for knowing the whereabouts of about half a dozen others. Every time a vote seemed near, Thompson would initiate a telephone tree to spread the word. (In the recollection of Nick Katzenbach, Thompson also supplied “a great deal of liquor” to any members whose support might ever be wavering.)

  Meantime, O’Grady and her raiders, waiting beside whatever telephone they could cadge from a friendly office receptionist, would be alerted by a pay phone call from the spotters in the gallery. They would then race from office to office, rounding up members from lunch breaks or visits to the gym—an army of human paging devices. “It was nuts, but I didn’t know that then,” O’Grady would recall years later. “I don’t think it’s ever even been replicated, because it was such a nutty idea.” Like many another nutty idea, it would prove effective. “By the third or fourth day,” she recalled, “you’d poke your head in and smile and say, ‘Just checking.’ And the secretaries would yell, ‘He’s all right! You don’t have to come in here!’”

  Tallying the floor votes on amendments was just as daunting. “Even if you sat and watched them from the gallery, it wasn’t easy to tell how members were voting on amendments,” Marvin Caplan, the executive director of the Leadership Conference, would later recall. That was because votes occurred in three possible ways. The chair would first ask for a simple voice vote on any amendment. If this proved inconclusive, members would then be asked to stand by turns, for or against the proposal. If fewer than one hundred members were present, any member could initiate a quorum call, bells would ring, and members would come pouring into the chamber from all over the Hill for a still more formal vote.

  “The chair would designate ‘tellers,’ one for the amendment and one against,” Caplan remembered. “All the members would then troop up the center aisle (‘looks like a sheep’s run,’ one of our gallery watchers once remarked) while the tellers, standing opposite each other, would clap and count each shoulder as it passed under their hands and, in the end, call out the totals to the chair,” with the ayes recorded first. From high above in the galleries, the spotters would have to keep track of these subtle movements and hope that the running tallies they were keeping in their heads were correct. Even journalists—the only spectators allowed to take notes—had a hard time being sure who was voting how, because, after voting, the members would walk up the center aisle toward the exit, with their backs to the press gallery behind them.

  “This really aroused a lot of concern in Congress,” Clarence Mitchell would recall. “So much so that we were asked to stop the notification process, and people promised if we stopped, they would be sure to stay on the floor. And then, of course, there were a few who said, ‘How do you know how I voted? You’re not supposed to make notes or write in the gallery.’”

  Mitchell and his allies made this jerry-built system work in their favor, as even the segregationists acknowledged. James A. Haley, a Florida Democrat, contended that without the “vultures in the spectators galleries, who were controlling votes in the House, or at least calling the turn on them … I do not think you would have twenty-five votes for this monstrous bill.”

  * * *

  DELIBERATIONS ON THE BILL resumed on Saturday morning, February 1, and stretched into the evening, with supporters and opponents offering general lines of defense and attack. Howard Smith condemned H.R. 7152’s swift passage by the Judiciary Committee, and insisted, “The only hearings that were ever held on this bill were held over the protest of a great many people, before the Committee on Rules. Apparently, nobody who favored this bill wanted the people to know what was in it,” or what “it proposes to do for 90 percent of the people of this country whose liberties are being infringed upon.” He added, “What we are considering now is a … monstrosity of unknown origin and unknown parentage.”

  Manny Celler and Bill McCulloch both denied southern claims that they had agreed to oppose all amendments. In fact, they had resolved to allow any modifications that seemed constructive—even if offered by southerners—to preserve as much comity as possible. But it was true that they had privately vowed to stand in lockstep against any effort to water down the bill. At his news conference that same day, Lyndon Johnson offered a somewhat less ringing assurance when asked if he believed the bill would have to be weakened to pass the Senate. “No, I do not think it will have to be substantially trimmed,” he said, “and, yes, I do expect a filibuster.”

  On Monday, February 3, discussion turned at last to the bill’s first section. Each of H.R. 7152’s major provisions had by now acquired the formal numerical “title” by which it would be known for the rest of its journey through the House and Senate, and Title I covered voting rights in federal elections. Dick Poff, a Virginia Democrat, proposed an amendment to give defendants in cases of alleged voting rights violations the same rights as the attorney general to request a hearing before a panel of three federal judges. In keeping with their strategy of accepting amendments that did not seriously weaken the bill, Celler and McCulloch backed the measure and it passed by a 100-to-68 standing vote. Another amendment, by Bill Cramer of Florida, to include Puerto Rico under the terms of the bill was also accepted.

&n
bsp; But over the next two days, a half dozen hostile amendments were rejected by substantial margins, including one from Howard Smith that would have applied Title I’s voting rights guarantees only to elections that were exclusively for federal offices. The bill’s supporters noted that any state could then exempt itself from coverage merely by including a single nonfederal office on the ballot. The amendment was defeated by a 55-to-155 standing vote.

  On Tuesday, February 4, debate moved on to Title II, the public accommodations section, long considered the most controversial part of the bill. For the pro-civil-rights forces, Title II’s provisions would bring a long-overdue end to the humiliations and indignities of Jim Crow, the cruel apartheid that condemned blacks and whites to separate spheres in virtually all public places in the South. Indeed, as Bill McCulloch liked to note, for hundreds of years Anglo-Saxon common law had required innkeepers to serve anyone who could pay and whose person and decorum were seemly. But for the segregationists, Title II would usurp centuries of private property rights and commingle the races in intimate settings, in defiance of generations of accepted southern custom. It was—for both sides—the visceral, emotional heart of the bill.

  As reported out of the Judiciary Committee, Title II barred discrimination in restaurants, soda fountains, hotels, theaters, and concert halls, while exempting the so-called Mrs. Murphy boardinghouses with five or fewer rooms for rent. Barbershops, retail stores, bowling alleys, and the like were not specifically covered unless they were inside or contained a covered business. So, for example, a hotel barbershop would be covered, as would a retail store that operated a lunch counter or restaurant.

  The bill’s critics contended that Title II would go so far as to equate private discrimination with state action. In response, Charles Goodell, a pro-civil-rights Republican from New York, offered an amendment intended to make the public accommodations section more palatable by changing the definition of discrimination that would be “supported” by state action and thus covered by the Fourteenth Amendment. The Judiciary Committee bill had barred discrimination that was “carried on under color of any law, statute, ordinance, regulation, custom or usage; or is required, fostered or encouraged by action of a state or a political subdivision thereof.” Goodell proposed to add three crucial words, requiring that state or local discriminatory action be “enforced by officials.” Goodell said his aim was to make it clear that there would have to be “some kind of action, some kind of activity,” in support of discrimination, as was the case in many southern states where Jim Crow laws were still on the books. Ed Willis, Democrat of Louisiana, then offered an amendment to Goodell’s amendment, striking the use of the broad word “fostered,” leaving only the narrower terms “required” and “enforced.” That had the effect of further restricting Title II’s sweep—if only in a rhetorical way. Both amendments passed by voice vote after Justice Department officials let it be known that they did not believe these changes would substantively weaken the bill.

  Such displays of bipartisan spirit did nothing to assuage the cantankerous Judge Smith. At one point, he erupted in fury that a podiatrist who happened to have an office in a hotel building would be covered by the act. “If I were cutting corns,” Smith spat, “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.” (But this outburst never appeared in the Congressional Record; availing himself of every member’s privilege to revise or extend his remarks for publication, Smith later had the comments stricken.)

  Then Smith proposed a devious kind of “double-dog-dare-you” amendment, one motivated by deep cynicism but not without logical appeal: a provision that no one could be compelled to render labor or service without his consent—absolving a restaurant owner from serving blacks if he chose not to, for example. “This amendment merely implements the Thirteenth Amendment,” which had barred slavery and involuntary servitude, Smith said. “See if you can vote against it. I defy you to do it.” But defy him members did, and the measure failed, 107 to 149.

  * * *

  BY THE NEXT DAY, Wednesday, February 5, the segregationists knew they were losing the fight. Dick Poff of Virginia offered an amendment to exclude from the bill’s provisions those establishments that were included only because they were in a covered facility (hotel barbershops, for example). It failed 70 to 123. A proposal by Bill Colmer to exempt all barbers and beauticians was defeated 69–114. But it was an amendment by George Meader, a Republican from Michigan, that had Bill McCulloch most worried. Meader proposed to limit Title II’s coverage only to those businesses situated or advertised immediately adjacent to interstates or major roadways. Opponents argued that such a measure would cover only 7 percent of roads in the United States.

  McCulloch gently upbraided his colleague. “He comes from Ann Arbor,” McCulloch said. “If that great Michigan football team was on its way to Miami to play that great school down there in Florida, and a Negro family were traveling with them and could not get service in Ft. Lauderdale, Florida, what could be done? There is just no teeth in this amendment and it should be defeated.” It was, 68 to 153.

  Indeed, the pro-civil-rights forces were doing so well that many southerners had simply stopped showing up for the debate. F. Edward Hebert, a segregationist Democrat from Louisiana, went so far as to praise his worthy opponents. “You are here on the job,” he said. “I disagree with you, but I respect you and I admire your courage and your determination to be here and be counted.”

  In fact, it was hard not to marvel at the bipartisan coalition that had now made it through three full days without any damaging amendments. Clarence Mitchell would recall especially the dogged persistence of his Ohio Republican namesake, Clarence Brown, who was enduring agonizing arthritis but “was always present on the floor to vote against crippling amendments.” With a reassuring nod or wink, Brown would let Mitchell know the bill was on track. “He was waging a terrific battle just to stand erect, but his voice always rang out strong and clear,” Mitchell remembered.

  On Thursday, February 6, the bill’s managers worked through Titles III (public facilities) and IV (public education), accepting a few nonthreatening amendments but rejecting most. Then came Title V, the Civil Rights Commission. The commission’s mere existence had been a thorn in the segregationists’ side since 1957. Now the persistent Ed Willis of Louisiana proposed that the commission not be required to investigate the membership practices of any “bona fide fraternal, religious or civic organization.” Though neither Manny Celler nor Bill McCulloch entirely approved, to keep harmony with Willis, a Judiciary Committee colleague, they acceded. “I am interested in getting this bill passed,” Celler said simply. The amendment passed on a voice vote.

  McCulloch was more concerned when Byron Rogers, a Colorado Democrat, proposed to restore language from the Kennedy administration’s original bill, extending the commission’s life only for four years instead of making it permanent, as McCulloch and John Lindsay had insisted in their October compromise. This was a “particularly acute” issue, Robert Kimball would recall, and prompted concern that the Johnson administration might be waffling. But the issue did not seem central enough for McCulloch to dig in his heels, and he let the amendment pass on a voice vote.

  * * *

  A MUCH MORE SERIOUS drama—the tensest moment in the debate so far—erupted the next day, Friday, February 7, as the House moved to consider the bill’s next section, Title VI, which allowed for the cutoff of federal funds to states and localities found to be practicing discrimination. This section, too, was loathed in the South, where segregationists feared it would be used broadly to punish local school districts. Representative D. R. Matthews of Florida called Title VI the “Let the Little Children Suffer Title,” and demanded to know whether a class in an agricultural vocational school that put on a performance of Othello in blackface would lose federal aid, or whether a primary school class that sang Stephen Foster’s words, “Darkies, how my heart grows weary,�
� would risk losing its school milk subsidy.

  Finally, just before 5:00 p.m., with debate growing hotter and the southerners clearly on the ropes, Democrat Oren Harris of Arkansas, the powerful chairman of the House Committee on Interstate and Foreign Commerce, offered a dramatic amendment that would have drastically changed Title VI and threatened the bill. He proposed to restore language from the Kennedy administration’s original bill, which would merely have repealed provisions in existing federal law that permitted segregation in federally supported programs, and given the president discretionary authority to withhold funds from discriminatory programs. The administration’s original language had also given the president the sole power to prescribe the conditions needed to assure nondiscrimination, and did not provide that the withholding of aid should be subject to review by the courts.

  Bill McCulloch had insisted that any cutoff of funds be subject to judicial review as part of his compromise with the White House in October. Now Harris proposed to jettison that procedural safeguard, making the bill unpalatable to McCulloch and his like-minded colleagues, who wanted to be sure that such thorny questions could be aired in court and not decided by executive fiat.

  The Harris amendment left the pro-civil-rights Republicans blindsided. Most astonishing of all, the Democratic majority whip, Hale Boggs, one of President Johnson’s closest friends in Congress, who had not even appeared on the House floor during the debate so far, now rose to support Harris’s proposal. The Republicans, led by John Lindsay, immediately cried foul. Lindsay leapt to his feet, calling the Harris amendment “the biggest mousetrap in a beautiful ribbon” that had been offered since debate on the bill began and insisting it would “gut” the bill.