Mansfield then yielded two minutes to Hubert Humphrey, who stood, a red rose in his lapel, to declare, “In the Senate, the Constitution of the United States is on trial. The question is whether we will have two types of citizenship in this nation, or first-class citizenship for all. The question is whether there will be two kinds of justice, or equal justice under the law for every American. The question is whether this nation will be divided or, as we are taught in our youth in the Pledge of Allegiance, ‘one nation, under God, indivisible, with liberty and justice for all.’
“I say to my colleagues of the Senate that perhaps in your lives you will be able to tell your children’s children that you were here for America to make the year 1964 our freedom year.”
At last it was Everett Dirksen’s turn. He first outlined the final compromise package, now including the Morton jury trial amendment, that would be considered after cloture. He spoke for a quarter hour in soft, even tones. It was obvious to everyone in the chamber that he did not feel well; twice he swallowed pills passed to him by an aide. Speaking from his typed text, he reviewed the long history of H.R. 7152. “Sharp opinions have developed,” he said. “Incredible allegations have been made. Extreme views have been asserted. For myself, I have had but one purpose, and that was the enactment of a good, workable, equitable, practical bill having due regard for the progress made in the civil rights field at the state and local level.”
“There are many reasons why cloture should be invoked, and a good civil rights bill enacted,” the minority leader continued, again paraphrasing Victor Hugo: “Stronger than all the armies is an idea whose time has come.”
“The time has come for equality of opportunity in sharing in government, in education and in employment,” Dirksen insisted. “It will not be stayed or denied.” He cited the example of a learned professor who had developed what he believed was an incontrovertible scientific premise and submitted it to his peers for review. “Quickly they picked it apart,” Dirksen said. “In agony he cried out, ‘Is nothing eternal?’ To this one of his associates replied, ‘Nothing is eternal except change.’”
“I appeal to all Senators,” he concluded. “We are confronted with a moral issue. Today, let us not be found wanting in whatever it takes by way of moral and spiritual substance to face up to the issue and to vote cloture.”
“The time of the Senator from Illinois has expired,” the presiding officer, Lee Metcalf, announced. “All time has expired.” Metcalf ordered a quorum call, and after it was quickly established that all one hundred senators were indeed present, he admonished the dozens of aides and clerks who were crowding the Senate floor to overflowing that staff members were allowed on the floor only when actually assisting senators in the conduct of their duties. “The Senate is now approaching a vote,” Metcalf said. “The present occupant of the chair does not see how clerks and members of the staff can come under the rule of the privilege of the floor. A quorum being present, the chair submits to the Senate, without debate, the question: Is it the sense of the Senate that the debate shall be brought to a close?”
Felton “Skeeter” Johnston, the secretary of the Senate, a taciturn Mississippian who had worked on Capitol Hill for thirty-five years, now called the roll. When he reached the name “Engle,” there was silence. Clair Engle, the fifty-two-year-old junior senator from California, a Democrat, was recovering from surgery to remove a brain tumor. He had been brought into the chamber just minutes earlier in a wheelchair, but he was unable to speak. Now, with supreme effort, he lifted his left hand three times and pointed to his eye. “I guess that means ‘aye,’” Johnston said softly.
By 11:15, sixty-six votes had been cast for cloture.
“Williams?” Johnston called.
John Williams of Delaware, who spoke so quietly that Senate reporters had nicknamed him “Whispering Willie,” quietly answered, “Aye.”
Hubert Humphrey raised his arms in silent exultation. It was the sixty-seventh vote.
The ancient Carl Hayden, cane in hand, had been waiting in the cloakroom. He had, in the end, acceded to Lyndon Johnson’s importunings, pledging to vote to cut off debate—but only if his was needed as the deciding vote. “It’s all right, Carl,” Mansfield now assured him. “We’re in.”
Outside the Capitol, in the one-hundred-degree morning heat, Roger Mudd was broadcasting live on CBS. Since cameras and microphones were barred from the Senate chamber, Mudd had jury-rigged a groundbreaking notification system in which a Senate gallery employee sitting in the chamber would whisper each vote into a telephone. In the radio and television workspace, another Senate employee would repeat the vote aloud to Mudd’s producer, who would repeat it into his headset. “We tested it a dozen times and it worked every time,” Mudd would recall. “I lagged behind the vote not more than seven or eight seconds.”
The final tally was 71 to 29, four votes more than the required two-thirds. Of the seven uncertain Republican votes that Stephen Horn had predicted in June 1963 might be obtainable, Dirksen lost only one, Edwin Mechem of New Mexico, and he picked up three of the eight that Horn had thought beyond reach: Karl Mundt, Norris Cotton, and Carl Curtis.
* * *
HUMPHREY AND HIS TROOPS had not a moment to savor their victory. With cloture now in effect, each senator was limited to an hour’s speaking time on the Mansfield-Dirksen substitute. But that still left a hundred hours of potential further debate, and some five hundred amendments—many of them hostile southern ones that could yet be appended to the Mansfield-Dirksen package to undermine it—stacked up for potential consideration. And because only those amendments that had been presented prior to the cloture vote could be called up after it (except by unanimous consent), there would be no way to rectify an amendment hostile to the bill by a subsequent one; if an amendment passed and was added to the substitute bill, there it would remain. So there was no room for error on the part of the civil rights supporters. It was at this very moment that all their weeks of carefully enforced discipline collapsed in exhaustion and inattention.
The wily Sam Ervin was first on his feet, calling up an amendment to the still pending Talmadge jury trial amendment that would prohibit a person from being subject to a charge of criminal contempt after being acquitted of an actual crime under the bill, and vice versa. The civil rights forces immediately feared that this double jeopardy provision could gut the bill, because someone acquitted of a civil rights violation by a sympathetic state court could not later be charged with a federal offense under the law. “Ervin set forth the proposal in a very garbled and unclear way,” John Stewart would recall, and “there was great turmoil in the chamber. Neither the pro-civil-rights forces nor the opposition were at all clear as to what was happening in the chamber, and before anyone knew it, we were having a roll call vote.” The initial tally was 47 to 48, and Lee Metcalf announced that the measure had failed. So Herman Talmadge withdrew his own amendment, only to have Metcalf announce that Ervin’s measure had in fact passed, 49 to 48. But since the Ervin amendment had been attached to the now withdrawn Talmadge amendment, it was rendered null under the Senate’s rules, however bizarre or unfair that might seem.
Mansfield now called up the new Dirksen substitute bill as the pending business of the Senate. Richard Russell immediately moved to amend it by delaying the effective date of Title II, the all-important public accommodations section, to November 15, 1965. “Mr. President, we are confronted with the spirit of not only the mob but of a lynch mob in the Senate of the United States,” Russell complained. “Senators are paying no attention to what they are doing.” But they paid enough attention to defeat Russell’s amendment by a vote of 40 to 59, and Mike Mansfield, reeling from all the activity, asked unanimous consent to recess until three o’clock that afternoon “to regroup, rethink and recollect.”
In the courtliest of gestures, Clarence Mitchell walked a dejected Russell back to his office. The weary Georgian praised Humphrey for his fairness throughout the debate, and for letting the sou
therners have their say, which Russell believed would ultimately make the bill acceptable and enforceable in the South, because the segregationists had given their all to the fight.
When the Senate reconvened that afternoon, Albert Gore of Tennessee moved to strike Title VI, the provision that allowed for the withholding of federal funds from state and local programs that practiced discrimination. Gore was a Democrat and a progressive in most matters, but he was running for reelection in a border state and could not afford to be seen as supporting these provisions. His amendment was easily defeated, and the Senate recessed.
During this period, John Stewart would recall, “Humphrey seemed to be quite distraught and not really in command of the situation.” Together with Justice Department officials and representatives of the Leadership Conference on Civil Rights, the majority whip debated how to handle the inevitable flood of forthcoming amendments. One conciliatory move aimed at minimizing ill feelings involved finding a way to make Sam Ervin’s double-jeopardy amendment acceptable—since it had passed, after all. In the end, Justice Department lawyers worked up new language for the amendment, making it clear that the provision applied only to federal charges under “the laws of the United States” and not to state prosecutions. The lawyers said that the amendment, as revised, would do no harm, and Ervin accepted the change.
At their daily meeting on Thursday, June 11, the bipartisan floor leaders’ group agreed to oppose all future amendments unless they were minor and accepted by the leaders of both parties. In the Senate session that day, the revised Ervin amendment passed by a vote of 80 to 16, but the next eleven southern amendments failed on roll call votes. The next day, Russell proposed yet another temporizing amendment—to submit the bill to a national referendum before it could take effect. This was too much for Dirksen, who ridiculed that idea, declaring, “I am ready to accept my responsibility under the bill and for the bill. I am not going to pass the buck to people back home and say, ‘I am rather shaky on the inside. I am thinking now about my party and how it is going to fare. I am thinking about the next election. I would rather get a guideline from you.’ Then they should write to me and say, ‘Haven’t you guts enough to stand up as a legislator and be counted because of the mantle of authority with which you have been clothed by the Constitution?’ What a shameful concession to make. I shall never make it.” Russell’s amendment failed 22 to 67.
On Saturday, June 13, the floor leaders accepted an amendment to Title VII proposed by John Tower of Texas, the sole Republican who had aligned himself consistently with the southerners throughout the debate. Tower’s amendment—strongly backed by Dirksen—was a response to the infamous Motorola case, in which an Illinois fair employment hearing officer had ordered the company to hire a black employee who had failed an ability test. Tower’s amendment specified that it would not be an illegal employment practice for an employer to administer and act on any ability test so long as the test was not “designed, intended or used” to discriminate on the basis of race or sex. Tower’s proposal passed on a voice vote.
By Monday, June 15, Humphrey and Kuchel decided that the only way to expedite the amendment process was not only to battle the southerners but to persuade any liberals who still hoped to offer strengthening amendments to refrain from doing so, and they announced this policy publicly.
For his part, Russell let it be known that he had lost his stomach for the fight, though he still had to contend with the dead-enders in his caucus like Strom Thurmond who were willing to continue offering weakening amendments. As sessions dragged late into the night, with almost all the southern amendments being defeated, senators would resort to breaks for liquid refreshment in their hideaway offices near the Senate floor. One evening, when Russell Long of Louisiana offered an amendment after Dirksen believed he had agreed not to, an obviously well-oiled Dirksen leaped to his feet “gesticulating wildly” and complained, “God damn you, Russell! You’ve broken our agreement! Why, you’ve welshed on our deal!”
Mike Mansfield, too, was growing irritated at the southerners’ delaying tactics. On Tuesday, June 16, he decided to keep the Senate in session past midnight, and it met for thirteen hours, from 11:00 a.m. Tuesday until 12:01 a.m. Wednesday, racking up thirty-four roll call votes, the most ever recorded in the Senate in a single day.
Later that same Wednesday, Hubert Humphrey was summoned off the floor in midafternoon to take a call from his wife in Minnesota. Their son Bob had noticed a swelling in his neck and gone into the hospital to have it checked out. Doctors now determined that he had a malignant growth and would have to undergo major surgery to clean out his lymphatic system. Humphrey was in agony; he desperately wanted to fly home but felt he could not abandon the fight for H.R. 7152 in its final hours. Clarence Mitchell and Joe Rauh happened to drop by his office, full of happiness at the state of play on the bill, only to join the majority whip in tears. “I had a terrible time pulling myself together to go back to the Senate floor, where I had to be,” Humphrey would recall. “Arguments and rhetoric that I might have listened to calmly and without emotion were much harder to take when I should have been at Bob’s bedside.”
That same day, Sam Ervin and Strom Thurmond both promised to limit the remaining number of amendments that they would call up, which assured that the bill could come to a final vote by Friday, June 19. In the end, of the 117 amendments considered by the Senate after cloture, only eleven minor revisions were adopted. The civil rights forces had protected the Dirksen substitute from any real harm.
Finally, that Wednesday evening, the Senate voted on the Dirksen-Mansfield-Humphrey-Kuchel substitute amendment, as it was now known. It passed overwhelmingly, 76 to 18, with forty-six Democrats and thirty Republicans voting aye. Now all that remained was the final vote on H.R. 7152, as amended. Mansfield announced that final arguments on the bill would take place Thursday and Friday and suggested, “because we have been under quite a strain for some time, that we take it easy and go home and get a good night’s sleep,” and return at eleven o’clock Thursday morning.
When the Senate convened that morning, Russell still had nineteen of the sixty minutes’ time remaining to him under the cloture rule. “Mr. President,” Russell began, addressing Ted Kennedy, who was presiding in the chair, “the moving finger is writing the final act of the longest debate and the greatest tragedy ever played out in the Senate of the United States.” Sounding a bit like the florid prologue to the film version of Gone with the Wind, Russell declared, “Indeed, Mr. President, history may well record this as the last sustained fight to keep inviolate the federal system with its division of powers between the states and the central government.”
“Mr. President, those of us who have been upon this floor day after day for more than three months have used every weapon available,” Russell went on. “Until we were gagged, we made no secret of the fact that we were undertaking to speak in detail and at length in an effort to get the message across to the American people. We did not deceive anyone as to our purposes.”
At this Ted Kennedy interrupted, “The time of the Senator from Georgia has expired.”
Russell was taken aback. His eyes glistened with tears.
“I express the hope that those who are keeping the time will apply the same rules to others which they have applied to me,” he complained. Then there was nothing left for him to do but sit down.
Speaking for the Republican leadership, Kuchel declared that the bill “will be an American achievement, for the leaders and the members of both parties helped to fashion the pending bill.” He added, “The sham and shame of unequal justice are about to be sheared away, for they have no place in our American system.”
Soon enough, though, the Republican who in just a few weeks’ time would become his party’s presidential nominee was on his feet in the chamber, opposing the bill. Barry Goldwater knew that Kuchel had worked assiduously, but in vain, on behalf of his opponent Nelson Rockefeller in the recent California primary, in a last-ditch effort to
deny Goldwater the nomination. Now Goldwater rose to say that while he opposed “discrimination of any sort,” he nevertheless would oppose the bill on constitutional grounds, insisting that it would “require the creation of a federal police force of mammoth proportions” and would result in the “development of an ‘informer’ psychology in great areas of our national life—neighbors spying on neighbors, workers spying on workers, businessmen spying on businessmen—where those citizens for selfish and narrow purposes will have ample inducement to do so.”
When the Senate convened again on Friday, June 19, one year to the day since John Kennedy had first submitted H.R. 7152 to Congress, the seventy-sixth and final edition of the civil rights newsletter had appeared. “Joining the legions of other small rural dailies, we cease publication,” its staff reported, tongue firmly but proudly in cheek. “Suffice it to say here that the job was done. We have a good bill. We still have a Senate, and we have miles to go before we sleep, and miles to go before we sleep.”
The first order of business on the floor was a motion from Albert Gore, who yet again was trying to have it both ways by blocking the bill without actually having to cast a clear vote against it. Unbeknown to Humphrey, Gore had clandestinely received unanimous consent to offer a motion that morning. John Stewart would recall that Humphrey regarded Gore’s move as “the highest breach of senatorial ethics.” Gore contended that the provision of Title VI that allowed for the cutoff of federal funds for programs that practice discrimination was so onerous that the whole bill should be recommitted to the Judiciary Committee—where it would, of course, be sure to die in Jim Eastland’s firm grip. Gore’s colleagues rejected his motion after a short debate by a vote of 25 to 74.
Hubert Humphrey then made his final speech in support of the bill. “These have been difficult and demanding days,” he declared. “I doubt whether any Senator can recall a bill which so tested our attitudes of justice and equality, our abilities as legislators, our sense of fairness as individuals, and our loyalty to the Senate as an institution of democratic government.” He concluded, “I will consent to this measure because for the first time in recent history, the Congress of the United States will say in clear and unmistakable terms, ‘There is no room for second-class citizenship in our country.’”
An Idea Whose Time Has Come: Two Presidents, Two Parties, and the Battle for the Civil Rights Act of 1964 Page 35