The Bill of the Century: The Epic Battle for the Civil Rights Act (45 page)

But just as Dirksen moved toward the end of his speech, Metcalf cut him off. “The time of the senator from Illinois has expired,” he said. “All time has expired.” It was a rude and unkind move, especially by an ally of the bill, but Metcalf likely figured he needed to take some shots at the pro-civil-rights senators first if he was going to beat back any underhanded Southern maneuvers later.
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Per the Senate rules, Metcalf then ordered the clerks and staffers to leave the floor. “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? The secretary will call the roll.” All one hundred senators were on hand for the vote—a vanishingly rare occurrence.
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Outside, Roger Mudd stood in the muggy heat beside a big board constructed by the CBS art department, with the names of all the senators. At the insistence of the Southern Democrats, who did not appreciate Mudd’s obvious preference for the civil rights bill, the Capitol Police had forced him to move off the Capitol grounds, so he was broadcasting from across the street. As the secretary of the Senate, Felton M. Johnston, called the roll, a runner inside the Senate gallery would step outside and whisper each senator’s vote to a producer, who sat on the phone with Mudd’s producer on the other end of the line. Whenever a new vote came in, Mudd would check yea or nay beside the senator’s name on the chalkboard.
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A few moments before the clerk read the name of Clair Engle of California, a Navy corpsman wheeled the senator—by then horribly weakened by brain cancer—into the chamber. He wore a steel brace to support his head, and a black bandana held his right arm up to his face.
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The clerk called Engle’s name. Silence. He called it again. Then Kuchel, his fellow California senator, walked over to the clerk. “I do not believe that the senior senator from California is able to speak,” he said. “I am certain, however, that he is prepared to vote. Upon the last call of his name I believe that the senators present today noticed that he made a perceptible motion of the index finger of his right hand toward his eye, in a manner which indicates that he wishes to cast a ‘yea’ vote on the bill. If the clerk will call his name again and if the distinguished senator makes the same motion, I request that the Senate record a yea vote.” The clerk called Engle’s name, and the ailing senator slowly lifted his finger to his eye. His vote cast, Engle was wheeled from the chamber. He died on July 30, 1964.
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Watching from the wings was John Synon of CCFAF. The committee, despite all its money and effort, had failed to sustain the initial wave of anti-civil-rights sentiment it had captured early in the filibuster. It had been unable to co-opt business antipathy toward Title VII, unable to capitalize on Wallace’s primary wins. And yet up to the day of the vote the committee thought it had thirty-four sure votes against cloture. But Synon turned out to be a poor vote counter, and it did not take him long to realize that many of the “sure” votes were anything but. Synon said that by the time Nebraska’s Carl Curtis voted yea, he knew it was over.
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When Johnston got to Abraham Ribicoff of Connecticut, the vote was still five short, with nineteen votes left to go. Then came five Southern “nays” in a row—Robertson, Russell, Smathers, Sparkman, and Stennis—a list Mudd referred to, on air, as a “murderers’ row.” Stuart Symington’s yea vote put the vote at sixty-six, just one away—but then came four nays: Talmadge, Thurmond, Tower, and Walters.

Finally came John J. Williams, a Republican from Delaware known around the capital as “Whispering Willie”—with some irony, because while soft-spoken, he was also a relentless partisan and a tireless advocate of small government and cutting federal waste. He had used the filibuster on many occasions to take personal stands against bills that he thought might add to the federal cash cow, and he had most recently taken the Johnson administration to the woodshed over the Bobby Baker scandal. None of that mattered now. “Yea,” Williams said.

The room exhaled. What no one thought could happen had happened. For the first time in history, cloture had been invoked on a civil rights measure. The South had been broken. Humphrey looked up at the gallery and raised his arms in silent triumph.
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Johnston finished the roll, then read it again, a standard practice to make sure late-arriving senators had their chance to vote. This time Cannon emerged from the cloakroom and voted yea. When it got to Hayden’s turn, Mansfield shouted, “It’s all right, Carl. We’ve got the votes.” The Arizona senator emerged and voted nay.
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When the roll call was finished, the clerk read the results: 71 yea, 29 nay—Humphrey’s prediction, which some had thought overly optimistic, was short by two. Forty-four Democrats and twenty-seven Republicans supported cloture; on the losing side were twenty-three Democrats and six Republicans, including Barry Goldwater and John Tower.

The seventy-five-day filibuster—totaling 534 hours, 1 minute, and 51 seconds of debate, by far the longest in history—was over. The chamber erupted in cheers. Larry O’Brien said, “It was like the home team winning the Super Bowl.”
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The path to cloture was never assured, nor was it easy. Contrary to the conventional storyline, it was not primarily about “beating” the Southerners. Rather, it was about cobbling together a coalition of votes from the liberal and conservative Republicans to pair with the pro-civil-rights Democrats. This cobbling together was performed not by a single field marshal—Lyndon Johnson, or perhaps Hubert Humphrey—but by a loose and often unstable assortment of forces in Congress, the executive branch, and the civil rights movement. Senators who might never have backed the bill, such as Jack Miller of Iowa or Howard Cannon of Nevada, were brought into the yea column thanks to the persistent urging of religious and labor organizations, which had been deployed through a coordinated effort by the Justice Department and the Leadership Conference. The story of the civil rights bill is about the interplay between elected officials, government officials, lobbyists, and countless thousands of activists around the country, pushing and pulling each other toward their common goal. If the bill did not satisfy everyone, it was broadly acceptable—and as such it demonstrated, more than perhaps any single piece of legislation before or since, the messy political genius of American democracy.

the bill was not safe yet. As momentous as the cloture vote was, it only meant that the debate over the bill itself was over, and that a vote on the legislation would in fact take place. But before that vote, the senators had to consider the amendments to the bill—as many as six hundred of them.

Many of the amendments were beyond the pale of consideration—Southern-born bids to excise entire titles or add unworkably onerous obstacles to enforcement—while others proposed innocuous fiddling with arcane subtitles. But several were carefully crafted to look like the latter but have the effect of the former, particularly proposals from legislative wizards like Sam Ervin. In order to get to a vote on the bill quickly, Mansfield planned to run through the amendments in rapid succession, with dozens of votes a day, and there was every chance that a pernicious, purposely complex proposal could come up for a vote when no one was paying attention and pass. As the bipartisan newsletter noted the next morning, “Some of the amendments that may be offered are likely to have hidden dangers behind an appealing facade. Serious damage can be done to the bill if such amendments are accepted. Therefore all Senate supporters of the bill are urged to remain on the floor or in their offices while the Senate is in session.”
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In fact, such trickery is exactly what happened, just moments after the cloture vote was announced. The body took up the first amendment, a proposal by Ervin to prevent a defendant from facing the same charge twice, once under state and then again under federal charges. Ervin presented his amendment, which was technically a “perfecting” tweak to Herman Talmadge’s jury trial amendment, as a simple check on double jeopardy. But it was a Trojan horse: if an all-white Southern state or local jury tried and acquitted a white defendant of violating a black man’s civil rights, Ervin’s amendment would protect him from federal prosecution. The civil rights forces realized immediately what the amendment could mean for the bill, but in the confusion after the cloture vote, they were unable to rally opposition. The Senate took a roll call vote, and Ervin’s amendment failed by the slimmest margin, 47 to 48. At that point Talmadge withdrew his own amendment.
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Then all hell broke loose. A recount showed that Ervin’s amendment had in fact won, by 49 to 48. But since Talmadge had withdrawn his amendment, Ervin’s was rendered moot. Order on the floor dissolved. Senators began shouting at each other, and at Mansfield. “The leadership seemed to be losing control of their forces,” noted John Stewart. Mansfield, deciding everyone needed time to “regroup, rethink, and recollect,” announced a recess just after noon.
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Russell, dejected, ambled back to his office. Along the way he was joined by Clarence Mitchell, his putative foe and, needless to say, a leading representative of the race of people targeted by the bill. Mitchell, ever the good sport, praised Russell for leading a spirited fight; Russell, ever the gentleman, congratulated the civil rights leader on his victory. He also predicted that, if nothing else, his opposition probably helped the bill in the long run: unlike the Supreme Court’s
Brown
decision, which many in the South rejected as undemocratic, the civil rights bill would be accepted because the filibuster had demonstrated the extensive and rigorous democratic process.
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The civil rights forces retreated to Humphrey’s office. The majority whip, after meeting with reporters and giving a brief on-air interview with NBC News, arrived feeling magnanimous toward Ervin—or at least pragmatic—and he urged that they find a way to accommodate his amendment without tearing the bill apart. The Department of Justice staffers present said they would see whether they could come up with compromise language, and departed. Senate protocol and notions of fair play toward Ervin aside, Humphrey’s performance post-cloture was making his aides nervous. “He seemed to be going out of his way to make it up to the southerners, who had been stung so badly with this overwhelming defeat,” Stewart noted. For the rest of the day, “he was giving sort of general promises that this or that amendment could be accepted, without checking the text of the amendments through, and put himself in several awkward positions.”
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The next morning the civil rights forces regrouped in Humphrey’s office to work out a final deal on Ervin’s amendment. The Justice Department’s proposed new language limited the double jeopardy provision to “the laws of the United States,” thus cutting off the possibility of a racist state jury precluding federal action. They also decided to oppose all other major amendments unless the leadership of both parties agreed to put one to a vote.
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That morning the Senate accepted four minor perfecting amendments by Jack Miller of Iowa, but by the afternoon the anti-amendment momentum was apparent. Twelve roll call votes on Southern amendments were taken, and the twelve amendments went down in flames. “By the end of the day,” Stewart noted, the Southerners “appeared to be quite dispirited and in a certain state of disarray.” The day ended just before 6:00
p.m.
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The next several days devolved into a turkey shoot against Southern amendments. There was no order to the votes, and no sense of purpose to the proceedings—it was understood that the amendments would be defeated, and yet no one had the will, or the desire, to tell the Southerners to stop. Humphrey had decided to let them run out their rope, and that to stop them in the middle of their death throes would only damage his chances of repairing relations later on. “The best thing to do under the circumstances,” Raymond Wolfinger noted, “was simply to defeat amendments as they were brought up.” The result was a near-constant stream of roll call votes, with senators casting nay votes without even knowing what they were voting on. “The various Southerners would call up a particular amendment, yield themselves anywhere from 30 seconds to 2 minutes to explain the amendment, and then settle back for the vote,” Wolfinger wrote. Most of them were grandiose and unrealistic. Russell proposed an amendment to put the entire bill to a national referendum: “I appeal to those in this body who call themselves liberals to let the people vote”—a ridiculous position coming from a man who otherwise claimed to hold the republican tenets of the Congress just below the Ten Commandments. In any case, the amendment lost.
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The dismal parade continued through the rest of the week, with eleven amendments going down on June 12 and nine more on Saturday, June 13. On Monday it was an even bigger rout, with fourteen amendments falling, and only one getting more than thirty votes. Robert Byrd offered an amendment to kill Title II, even as he admitted it would be “voted down just as indifferently, mechanically, and summarily as other amendments have been voted down, but that doesn’t mean that senators should roll over and play dead.” On Saturday afternoon, Ervin announced he was taking the rest of the day off to go catch a Senators game, where, he said acidly, “a man doesn’t strike out before he comes to bat and the referee’s decision is not made in advance.”
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One amendment that was accepted, after some negotiation with the Department of Justice, was a proposal by Russell Long to strengthen the exemption for private clubs in Title II. It was a seemingly small change involving a handful of establishments, but one that would resonate through the next several decades across the Deep South as countless white-owned restaurants converted themselves into “private” establishments with nominal membership fees to keep blacks out.
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