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 William Copenhaver, the Republican staff counsel to the House Judiciary Committee, explained a more sobering reality. With each passing day, and with continuing civil rights protests around the country—especially Martin Luther King’s SCLC campaign in St. Augustine, Florida—Republican support for H.R. 7152 in the House was growing shakier. “There was a time when a package proposal was a possibility,” Copenhaver said. “If the House of Representatives had the bill before it today, it could not pass the present bill. Each day the filibuster goes on, we lose support in the House.”

  By Monday, May 11, as the negotiations with Dirksen dragged on, Nick Katzenbach told his colleagues in the bipartisan floor leaders’ group that Dirksen understood that his proposals for revising the public accommodations section were not yet acceptable. Indeed, Katzenbach would recall, the challenge in negotiating with Dirksen was to get his firm agreement to any changes before so much bourbon had been consumed that Dirksen would not remember the following day what he had accepted the evening before. Dirksen often seemed to want changes in language for change’s sake, and while Burke Marshall could provide one new draft of wording that would not much change the bill’s meaning, it was much harder for him to do it twice.

  Praising the virtue of flattery, Dirksen liked to say that “the oil can is mightier than the sword.” He was also a firm believer in the lubricating properties of distilled spirits. “You’d be surprised at how chummy” people can get “at a party with a drink in their hands,” he once explained. Frank Valeo, then secretary to the Senate majority, insisted that Dirksen “wasn’t an alcoholic,” but he nevertheless drank almost constantly. Dirksen himself acknowledged, “Champagne is Mrs. Dirksen’s favorite vegetable,” while “I prefer a fellow by the name of Jonathan Daniels.”

  In the back of his office suite, Dirksen kept a private retreat, with refrigerator and full bar, known as the Twilight Lodge, or simply “the back room.” There was a clock on the wall with each hour showing the numeral 5. “No matter where the hands stood, it was always after 5 o’clock and time for a drink,” John Tower, then a freshman Republican senator from Texas, would recall. During one late morning negotiating session on the bill, John Stewart would remember, he reached to pour himself what he thought would be a glass of water from a crystal pitcher filled with ice and clear liquid. “Don’t touch that!” an aide cried.

  “The senator’s picky about his water?” Stewart asked.

  “That ain’t water, kid,” came the answer.

  Indeed, it was gin, and Dirksen soon came in and poured himself a large glass before lunch and went back onto the Senate floor. Jack Rosenthal, then a young speechwriter for Bob Kennedy, recalled Dirksen’s leaving a meeting late one hot afternoon and greeting reporters waiting outside the door: “Well, here we are,” the senator said. “Fake pearls before real swine.”

  Yet for all the good cheer, the negotiations had yet to produce an agreement. At the Democratic leadership’s weekly meeting with President Johnson at the White House on Tuesday, May 12, Mike Mansfield was forced to tell the president that “progress on the bill to date is nil.” An infuriated Johnson once again urged round-the-clock sessions, and later that day he warned a meeting of the President’s Committee on Equal Employment Opportunity—the very body he had chaired as vice president—of the dire consequences if H.R. 7152 should fail.

  “That bill must be passed,” the president said. “That kind of legislation must become the law of the land. We cannot see our democratic system spend sixty days on a bill like that and then fail. But it is going to fail unless the people, in righteous indignation let them know that they do not have that superior feeling and they do require legislation that protects a person because of his particular color. If the Congress does not act on that legislation, we will have some very dark days in this country.”

  11

  It Can’t Be Stopped

  WEDNESDAY, MAY 13, 1964

  JUST WHEN THINGS LOOKED darkest for the civil rights forces, the crucial breakthrough came. Dirksen had taken pains to let his constituents know that an agreement might be in the offing. He was a pioneer in the Senate at using television to keep in touch with voters back in Illinois, and he sent home weekly filmed chats for broadcast on local television and radio stations in which he explained legislative issues in remarkably detailed and noncondescending fashion. He called his report for the week of May 11 “The 59th Day,” and it summed up the state of negotiations on H.R. 7152.

  “Sometimes people may say this is an effort to water down the civil rights bill,” Dirksen explained. “I assure you it is nothing of the kind. I must say to you as a legislator who takes pride in his own craftsmanship that there are imperfections, there are deficiencies, there are holes in this bill, and what we are trying to do is to develop an area of agreement on these particular proposals and I think we have gone a long ways.”

  The meeting of Neal Kennedy’s bipartisan working group in Dirksen’s suite on this morning marked the fifth day of negotiations, and Dirksen himself began by suggesting that agreement was a foregone conclusion. He spoke of the need to mimeograph copies of his proposed amendments and circulate them to other senators, the necessity for both party caucuses to review the changes, the possibility of voting for cloture title by title. Hubert Humphrey countered that all that would depend on just what the two sides agreed to—and Bob Kennedy got down to cases on the remaining areas of division.

  The biggest sticking point was the attorney general’s enforcement powers under Titles II and VII—the public accommodations and fair employment sections. Dirksen did not want the Justice Department jumping around the country like an ad hoc legal aid society, getting involved in cases that might better be resolved locally, ideally through voluntary cooperation. He wanted to enumerate the attorney general’s enforcement authority in a separate, new Title XII to the bill. But Humphrey pointed out that was impractical, since such a section would be a more inviting target to be struck from the final bill, leaving the underlying public accommodations and fair employment sections toothless. So Dirksen eventually agreed to place the attorney general’s powers within the existing titles. And he agreed to let the Justice Department sue in cases where there was a “pattern or practice” of systemic discrimination in access to public places or jobs—the language that had first been hammered out by his and Mansfield’s aides. In more isolated cases of discrimination—in keeping with Dirksen’s earlier raft of proposals on Title VII—individuals would have to bring their own complaints, either through existing local agencies or through the new Equal Employment Opportunity Commission, or through the Community Relations Service that would also be established by the bill. Once an individual suit had been filed, and if a court permitted, the attorney general could intervene on a plaintiff’s behalf.

  Dirksen then objected to a provision in Title V that would allow the United States Civil Rights Commission to investigate allegations of voter fraud. Kennedy agreed that it did not belong in the bill but noted that it had been inserted at the insistence of Bill McCulloch and the House Republicans so he was unwilling to take it out. It stayed in. Both sides also easily agreed to a demand from Karl Mundt of South Dakota to exempt jewelry makers on Indian reservations from the provisions of the bill.

  The pro-civil-rights forces had lobbied Mundt relentlessly for his support of H.R. 7152, knowing that his would be a crucial vote for cloture. Charles Ferris of Mike Mansfield’s staff recalled that it was widely understood that Mundt’s wife, Mary, supported the bill, so each morning after the senator had left home, someone from Humphrey’s or Mansfield’s staff would call to give her the latest updates on the state of the debate. Religious leaders from South Dakota were also enlisted to lobby Mundt, and when he supported the pro-civil-rights forces on a key procedural vote, he was heard to mutter, “I hope that satisfies those two goddamned bishops that called me last night!” The Indian jewelry amendment was part of Mundt’s price for supporting cloture. The bill’s supporters were moving ever
closer to the magic number of sixty-seven votes.

  But when Dirksen suggested yet more tinkering with Title VII, Joe Clark of Pennsylvania stormed out of the room in a fit of anger, shouting, “It’s a goddamn sellout!” Clark was a tempestuous liberal, but his demonstration had been prearranged by the civil rights supporters, who had decided in their own meeting before the bipartisan negotiating session to take a tougher stand with Dirksen, convinced he now needed them as much as they needed him.

  “See what I’m up against?” Humphrey said to Dirksen as Clark bustled out. “I can’t concede any more on this point.”

  All remaining obstacles seemed to evaporate, and Dirksen, Bob Kennedy, and Humphrey met the press.

  “We have a good agreement,” Dirksen reported.

  “This bill is perfectly satisfactory to me,” the attorney general said.

  “And to me, too,” Humphrey chimed in.

  Bill McCulloch let Dirksen know that he, too, accepted the agreement. At the heart of Dirksen’s package were the substantive changes in Titles II and VII—giving state agencies first crack at enforcing access to public accommodations and employment. Dozens of other technical changes in wording throughout the bill satisfied Dirksen’s desire to claim that he had made a large number of alterations, without really changing its substance much. Both sides could claim victory.

  “Dirksen was only switching ‘ands’ and ‘buts,’” Joe Rauh would later recall.

  Neal Kennedy would remember that it was “just a question of doing the job—writing a good, enforceable bill.” The question, he said, was always, “How do we get the policy the country would innately want to have?”

  As usual, Bill McCulloch offered the most judicious summation, concluding that Dirksen had written “amendments into the bill which left the bill little changed in force and effect, but which materially assisted passage of the legislation in the Senate.”

  The full Senate would have to accept the new proposals, of course. And because of Dirksen’s dozens of changes, the House of Representatives, too, would have to approve the amended bill before it could become law. But the compromise with Dirksen was a huge step toward both of those goals.

  At first, the civil rights groups, who had been kept in the dark through the five days of private talks with Dirksen, were skeptical, announcing that they would reserve judgment until they could review the proposals. When Bob Kennedy telephoned Lyndon Johnson shortly after 4:00 p.m. to tell him of the deal, the president replied, “Wonderful, congratulations,” and then asked about the civil rights lobby.

  “Yeah, you know, they’re not going to be happy,” the attorney general replied, “but then, nothing makes them happy, and so we just have to accept that.” But after some grumbling, Joe Rauh and the Leadership Conference also joined in praising the new package. “I thought it would be a lot worse,” recalled Rauh, who told Humphrey that if the rewritten bill passed the Senate, “it would be a great victory for civil rights.”

  A few minutes after his call with the attorney general, Johnson called Dirksen to congratulate him, and to ask about the prospects of moving the bill along and getting a vote. Dirksen reported that he had talked to Richard Russell that morning. “He gave me no comfort,” Dirksen said, explaining that Russell would not commit to scheduling any votes because the southerners were “going to keep the show going.”

  “Well,” Dirksen told the president, “I said, ‘Dick, you’re going to have to fish or cut bait, because I think that we’ve now gone far enough. And I think that we’ve been fair.’”

  Johnson heaped praise on the minority leader, recalling that he had just seen Walt Disney’s new “audio animatronic” Lincoln robot in the Illinois pavilion at the recently opened World’s Fair in New York. “You’re worthy of the Land of Lincoln,” Johnson said. “And the man from Illinois is going to pass the bill, and I’ll see that you get proper attention and credit.”

  Later that evening, Johnson reached out to Hubert Humphrey. “Now, can Dirksen get votes for cloture?” the president demanded.

  “Yes, sir, he can get twenty-five votes,” Humphrey replied. “I had dinner with him last night, and Mr. President, we’ve got a much better bill than anybody even dreamed possible. We haven’t weakened this bill one damned bit … in fact, in some places, we’ve improved it, and that’s no lie, we really have.”

  “That’s wonderful,” Johnson replied, emphasizing once more how important it was to make the bill bipartisan. “We’ll have real revolution in this country when this bill goes into effect,” Johnson said, adding that “it doesn’t do any good to have a law like the Volstead Act,” which had created Prohibition under the Eighteenth Amendment, “if you can’t enforce it.”

  In fact, the tally for cloture was steadily rising. Only the day before, Humphrey had estimated that there would be fifty-five solid votes in favor, plus eight possible others, including Dirksen’s. Now Dirksen was committed, and Ernest Gruening of Alaska, who had so benefited from Johnson’s push for emergency earthquake aid, told Humphrey, “I am prepared, before long, to vote for cloture.”

  * * *

  BUT H.R. 7152 WAS not the only issue facing the Senate. A totally unrelated matter—a bitter partisan battle over the Bobby Baker affair—would soon threaten the institution’s decorum and risk jeopardizing the drive for cloture.

  The catalyst for the fight was an effort by Senate Republicans—led by the dogged John Williams of Delaware—to broaden the Senate Rules Committee’s investigation of Baker’s business dealings to include an inquiry into improper behavior by senators themselves. The committee was on the verge of making its initial report on the subject, and Lyndon Johnson was livid at the thought that the investigation might be prolonged, let alone expanded. In a telephone call to Mike Mansfield the same evening of the deal with Dirksen, he urged the majority to denounce any such move as “lowdown, dirty, cheap politics,” and to do his best to block it.

  On the Senate floor the next afternoon, Thursday, May 14, Mansfield did just that, saying that the original scope of the inquiry was wide enough to cover any contingencies. He challenged Williams to “name the senator or senators whom you wish interrogated” and to “state your charges or allegations against them.”

  When Clifford Case of New Jersey, a cosponsor of the effort to expand the investigation, sought to interrupt Mansfield with a point of order, the majority leader refused to yield the floor “for any purpose,” and a fifteen-minute shouting match erupted, escalating into what the New York Times called “one of the angriest debates in recent congressional history.” Ted Kennedy, presiding over the Senate at the time, and by no means yet a master of procedure, ordered a sputtering Case to take his seat.

  Mansfield’s motion to block the widened investigation ultimately passed by a vote of 42 to 33, but the majority leader’s own aides were embarrassed by his uncharacteristic strong-arm tactics, and the Republicans were outraged. John Stewart confided to his diary that he feared that some senators who had been thinking of voting for cloture might now refuse to do so, out of anger at Mansfield’s treatment of Case.

  It now remained for both parties to present Dirksen’s amendments to their respective caucuses, in meetings scheduled for early the next week. On Friday, May 15, Kenneth Keating’s counsel Patricia Connell asked Nick Katzenbach what would happen if Dirksen’s conservatives refused to accept his package. “Marshall and I will slit our throats,” Katzenbach replied. But in the next breath, Katzenbach added, “I can’t believe Dirksen would go as far as he did unless he is able to produce the votes.”

  * * *

  AT THE BIPARTISAN FLOOR leaders’ meeting on Monday, May 18, there was some grumbling from the liberals about the deal with Dirksen. He had inserted a provision into Title VII limiting the bill’s coverage of job discrimination to firms employing workers for at least twenty weeks a year. Joe Rauh feared this would leave migrant farm workers unprotected. Joe Clark was his usual dyspeptic self, declaring, “There are no public cheers from me on an
y of this. You may find some sullen acquiescence on my part.”

  On Tuesday, May 19, the parties caucused separately to review the Dirksen package. The Democrats met in the elegant Old Senate Chamber, in the Capitol’s original section. The southerners were predictably dour. Dick Russell complained that Dirksen’s amendments made the bill “a punitive expedition into the South.” John Stennis of Mississippi accurately discerned Dirksen’s motives, asserting that “the amendments are designed to make the bill less burdensome to the states in which the proponents can probably pick up a few votes.” But liberals like Clark and Philip Hart of Michigan said they could live with it.

  The Republicans held their meeting in a large conference room just off the Senate floor, and the conservatives were livid. Bourke Hickenlooper told reporters afterward that he was appalled at the powers the bill granted to the attorney general. “It’s a gargantuan thing!” he exclaimed, adding that the amendments “don’t go far enough to meet the real evils of the bill.” Milward Simpson of Wyoming was equally blunt. “They’ve just warmed it over like hash to make it more palatable,” he said.

  Everett Dirksen’s showman’s instincts told him it was time for a direct appeal to the public. So after the caucus, he summoned reporters to the comfortable leather couches of the Senate press gallery, and when one reporter—not fully aware of Dirksen’s long-aborning behind-the-scenes role in working for a bill—asked why he had suddenly become such a champion of civil rights, the minority leader began what he called “a little sermon.”