The Leadership Conference on Civil Rights met in Washington to coordinate the plans of 74 member organizations for the coming months.
The bipartisan Senate leadership met at 10:30 a.m., in Humphrey’s office. “Katzenbach is optimistic about Senator Dirksen and his amendments. He thinks that they can be helpful. The FEPC amendments might be okay.”
Johnson and Dirksen discussed civil rights in a taped telephone conversation.
At 10:55 a.m., the bipartisan Senate leadership met in Humphrey’s office to discuss how to use church groups to influence senators. It was clear from the conversation that the group had checked the religious affiliations of all senators and “were working based on them.”
At 11:45 a.m., a handful of staff members met. They learned that the civil rights forces may not be able to produce a quorum on April 4 because of Democratic absences.
The bipartisan Senate leadership met at 10:30 a.m. in Humphrey’s office to discuss the wisdom of having a Senate session the next day because 30 Democrats and Senator Kuchel would be absent.
Since March 30, the Senate floor had been virtually empty as a handful of senators explained the complex provisions of H.R. 7152. Southerners employed the tactic of “suggesting the absence of a quorum” to force the bill’s proponents to round up 51 bodies and to slow down proceedings even more.
The Senate convened at 11:00 a.m., and Mansfield, following standard procedure, noted the absence of a quorum, and the clerk began to call the roll. Only 39 senators (23 Democrats and 16 Republicans) responded to the quorum call. Of the absentees, 44 were civil rights supporters.
The presiding officer declared the absence of a quorum.
If the Senate lacked a quorum, the rules allowed two options: adjourn or take action to produce a quorum. Since adjournment would allow the southerners to start a new legislative day [See also entry at March 9], Mansfield immediately moved that the Senate sergeant at arms be directed “to request the attendance of absent Senators.”
Knowing full well that even such a move would not produce a quorum with so many senators out of town, Mansfield cut short that process by asking the presiding officer whether a motion to recess until Monday would be in order, so that the two-hour clock would not have to start all over again on a new legislative day, allowing the southerners to prolong the filibuster.
Because the roll had not yet started, the presiding officer ruled that the motion was in order.
For the first time in nearly two years, the Senate was forced to recess. An irate Humphrey warned his colleagues, “the only way we can lose the civil rights fight is not to have a quorum when we need it.”
The Senate began its fifth week of debate on H.R. 7152 with the team captains appointed by the floor managers describing the bill line by line.
At 10:30 a.m., the bipartisan Senate leadership met in Humphrey’s office together with representatives of the Leadership Conference on Civil Rights. Senator Hart suggested to Humphrey “that it is urgent that we bring together the pro-Civil Rights Democrats and tell them they have a duty to be here for a quorum.”
Humphrey believed that the Dirksen amendments should be “scrutinized.” In Humphrey’s words, “My position is no amendments, but I want to praise Dirksen. He’s trying to be constructive. There’s no chance of getting cloture unless we have Everett Dirksen.” Later he added: “We considered Dirksen to be acting in good faith. Nothing will be done in conference without Dirksen. Nothing.”
At 11:30 a.m., Horn met with Robert Kimball, legislative assistant to Representative John Lindsay and someone who met frequently with Horn and Senate civil rights forces:
Kimball shows Horn a line in Senator Dodd’s proposed floor speech on Civil Rights which will be given later today. He notes that it looks like the Democrats might be willing to “give a little” to Everett Dirksen by agreeing that public accommodations complaints would first go to the Community Relations Service. He recalls that Lyndon Johnson proposed that idea years ago. Kimball notes that Representative McCulloch would have added Dirksen’s amendments re employer definitions and reporting requirements if there had been time in the House.
Dirksen’s notebook entry listed five possible factors favoring cloture:
1. Faced with log-jam legislation.
Dirksen recorded his weekly Your Senator Reports. This segment was entitled “What is Cloture?” and Dirksen explained the filibuster and cloture processes. He predicted that the current civil rights filibuster “will run along for at least another ten or fifteen days” before senators “get very serious about amendments.” He proceeded to explain the amending process.
At 10:30 a.m., the bipartisan Senate leadership met in Humphrey’s office. Of the 36 Democrats who were supposed to have been available for quorum calls on Saturday, April 4, 13 had been absent. “[Senator Claiborne] Pell (D-RI) should be kicked in the ass for going off to the beach for two weeks.”
Hubert Humphrey inserted into the Congressional Record a defense of the constitutionality of H.R. 7152’s Title II (public accommodations) and Title VII (equal employment) by 22 lawyers.
Senate Minority Leader Dirksen presented 40 amendments to Title VII (equal employment) of H.R. 7152 to his Republican colleagues at the weekly luncheon of the Republican Policy Committee in an effort to persuade his reluctant colleagues to support the bill.
He explained a provision under which no federal action could be taken to resolve an employment discrimination complaint where a state law or fair employment agency already existed, without first giving state authorities 90 days to resolve the matter.
Dirksen also would limit the powers of the federal Equal Employment Opportunity Commission to seek voluntary compliance with its findings. He did not want federal record-keeping requirements to be superimposed on existing state agencies. He would include union hiring halls among the “employment agencies” covered by the bill, to make sure that employers would not be blamed for hiring decisions that were, in fact, dictated by unions. Dirksen would specify that the results of technical studies by the commission would be made public but that the findings of individual efforts at conciliation would not. He would give all enforcement powers under Title VII to the federal courts, and not to the commission itself.
He also proposed to delete Howard Smith’s “sex” provision from the House bill. At a press briefing after the private luncheon, Dirksen surprised reporters and other senators alike by declaring that he might just like to strike Title VII altogether.
Conservative Republicans applauded the modifications proposed by Dirksen. However, a liberal revolt broke out on both sides of the aisle in the Senate. Two Republicans and one Democrat said that if the Senate accepted Dirksen’s amendments, they could not vote for the bill or for cloture. Senator Kenneth B. Keating (R-NY) said that three of the Dirksen amendments “would seriously weaken the effectiveness of the bill.” Republican Clifford Case of New Jersey proclaimed it might be necessary “for those of us who favor a strong civil rights bill to take the position from now until Kingdom Come that he will not go along with closure [sic] or with anything else other than an effective bill.” There was consternation among several Republican civil rights leaders in the House, too, who expressed doubt that House conferees could accept such changes.
Liberal and moderate Republicans’ fury only mounted when they saw language for the amendments. They said a study of the official prints confirmed that the amendments not only watered down the fair employment section but also practically gutted it. “The Senator from Illinois may not be Mack the Knife but he’s certainly Ev the Dirk,” one remarked in pique.
George Wallace, the segregationist governor of Alabama who was running for the Democratic presidential nomination, exceeded expectations by winning a third of Wisconsin’s primary votes.
At 9:30 a.m., the bipartisan Senate leadership met in Humphrey’s office. “Senator Humphrey arrives bubbling over. He reports that he met with the Attorney General this morning. He feels that we are starting to move on the public relations.”
Kuchel advised Horn to keep the various Dirksen amendments confidential and added, “I’ll vote against all of them if I have to.”
Secretary of the Senate Frank Valeo wrote Mike Mansfield that 38 senators, including Dirksen, opposed cloture, and another 11 were strongly leaning against it.
In his maiden speech to the Senate, Ted Kennedy (D-MA) spoke to civil rights: “My brother was the first president of the United States to state publicly that segregation was morally wrong. His heart and soul are in this bill. If his life and death had a meaning, it was that we should not hate but love one another; we should use our powers not to create conditions of oppression that lead to violence, but conditions of freedom that lead to peace.”
No Republicans were on the Senate floor to hear Kennedy’s speech; they were meeting with Dirksen to hear him outline his proposed amendments to the civil rights bill.
Dirksen presented his amendments to all Republican senators in the Senate Republican Conference. Protests immediately rang out, reflecting the diversity of opinion among the Republicans. Of the 33, 21 (including Dirksen) were conservatives, only 5 counted as moderates, and 7 (including floor manager Kuchel) were liberals.
After two hours and 20 minutes, the quarreling colleagues adjourned with no agreement on any issue, but Dirksen had succeeded in testing his colleagues’ sentiments. He told the press that he was trying to make Title VII as “palatable as possible” and, therefore, might see many of his 40 amendments “go down the drain.” But he felt that “the remaining residue will help get this passed. My position is negotiable.”
At 10:30 a.m., the bipartisan Senate civil rights leadership team met in Humphrey’s office, a meeting that included several representatives of the Leadership Conference. Joe Rauh set the tone when he termed Dirksen’s amendments “diabolical” and stated that the group could no longer consider Dirksen’s approach “constructive.” Humphrey urged restraint, advising the group to “follow the course of not being openly antagonistic to Dirksen. The Republicans must carry the fight. Let the Republicans argue it out with their own leader.” Kuchel staffer Stephen Horn added: “Our theory is that Dirksen will go through his public acting process, take a licking, and then be with us.” The group also agreed that they probably had enough votes to block any serious weakening amendments.
“It is our intention,” Hubert Humphrey announced, “to step up the tempo of the debate, in the hope of being able to bring about an orderly disposition of the bill through the legislative process.”
The bill’s proponents had just completed their ten-day explanation and discussion on the Senate floor of the bill’s 11 titles, a project they began after the legislation became the Senate’s pending business on March 26.
The New York Times reported that Dirksen “appeared today to have a better-then-even chance of winning Senate approval of significant changes in the fair employment section of the civil rights bill….”
An almost complete poll of the 33 Republican senators conducted by the New York Times on April 10 showed that 20 either favored or were somewhat inclined toward Dirksen’s two most controversial amendments, those giving states primary jurisdiction under most circumstances and requiring suits to be filed by individuals instead of an agency. Six liberals were unqualified in their opposition.
Dirksen continued to work piecemeal, holding constant meetings, mostly with liberals such as Javits and Case. “I have a fixed Pole Star to which I’m pointed,” he explained in mid-April. “This is, first, to get a bill; second, to get an acceptable bill; third, to get a workable bill; and, finally, to get an equitable bill.”
He began to indicate a willingness to soften his stance in response to liberals’ objections. He dropped his proposal about extending the period for voluntary compliance, for example. Dirksen knew he did not have the votes to pass all of his amendments in the Senate, even with the likely support of southern Democrats who would welcome a chance to modify the bill. He hoped to persuade a few of the six liberals to support some changes, however, to preserve party unity as he made a pitch to the conservatives.
Dirksen took his time with the legislation not because he wanted to block the bill, or delay other Great Society legislation, or to outwait the Republican presidential nomination process, all theories advanced at the time. One of Dirksen’s staffers, Bernard J. Waters, captured the real reason:
It took so much time because we were working on the details of the bill as they affected various interest groups. There was a consistent effort to involve all the various groups concerned in the process. We tried to create a spirit of cooperation. We wanted to “take care” of all the various problems with the bill and see that everything was “worked out.” We tried to work it so that no big thing was either granted or denied to any particular party. We collected a great deal of input into the final version of the bill, but no one voice prevailed.
Clarence Mitchell sent a memo to NAACP chapters warning them that Dirksen’s amendments could be the first step toward weakening the bill. “Senator Dirksen’s amendments are poison for the most part. We must work hard to make sure all senators oppose them.”
The Leadership Conference on Civil Rights held a large day-long meeting to coordinate their plans for the coming weeks.
At 10:30 a.m., the bipartisan Senate leadership met in Humphrey’s office to discuss Dirksen’s amendments. Representatives from the Leadership Conference on Civil Rights participated. Humphrey reported that he had “talked Dirksen down” from 70 amendments to 15. He also said he would like “the cloture vote to occur on the 15th or 20th of May. I will try to find the maximum numbers of votes we can get. We will wait until the people are anxious. That means after the first week in May.”
“Katzenbach stresses that we must have 60 votes before we should think of cloture. He would not wait until we have 67. However, anything less than 60 is a black eye.” Joe Rauh reported that civil rights groups wanted cloture only when the votes are there.
Humphrey felt that “we need a barrage of propaganda on our side. People may disagree on the substance of the bill, but how can they disagree on the right to vote? It is outrageous that the business of government is held back because some people cannot vote. We need the right to vote not just in Mississippi, but also in the Senate of the United States.”
Clarence Mitchell said, “If we let the Dirksen amendments prevail, it will be a disaster. There will be a Negro revolution around the country.”
Humphrey responded: “We don’t plan on letting them pass. Don’t you break out in a sweat, Clarence. I believe we should analyze the Dirksen amendments and then move to table them. By a tabling motion, you get the brave and the cowardly at the same time. That has been true ever since the tabling process was used on the Communications Satellite legislation. I don’t worry. It is like murdering half the family.”
Mitchell: “The Dirksen amendments are offered as a way out for the South. We need to let the country know that we are willing to fight to the end.”
The meeting notes indicated that House members were contacted frequently to lobby senators from their state.
Roy Wilkins, Executive Secretary of the NAACP, wrote Dirksen, enclosing his testimony eight months before on the public accommodations title before the Senate Commerce Committee:
The situation has not changed. The title is needed by the millions of American citizens who are told daily—even hourly—that while others are welcome in places open to the general public, they are either circumscribed or barred. This is an affront to American citizenship, but more importantly and more penetratingly, it is a deeply wounding affront to a person as a human being.
Dirksen, Mansfield, Humphrey, Russell, and 13 other senators joined President Johnson for the opening day baseball game between the Washington Senators and the Los Angeles Angels. Shortly after 2:30 p.m., the public address announcer called out, “Attention please! All senators must report back to the Senate for a quorum call.” Southerners who had remained on the floor to conduct the filibuster had suggested the absence of a quorum.
At 10:30 a.m., the bipartisan Senate leadership met in Humphrey’s office to discuss the timing of cloture. The Justice Department favored an early vote. Horn objected “to any attempt to look like we are running a ‘machine.’ We have to permit discussion. The Senate is not a mob-ocracy like the House over there.”
Katzenbach said he was against any amendments.
For the third consecutive week, Dirksen took his redrafted amendments to the Republican Policy Committee luncheon. Republican liberals rejected some of the changes but agreed to others. Both sides stressed the desire to continue negotiations. Dirksen decided, therefore, to introduce ten of his less controversial amendments on April 16. He would withhold the amendments dealing with enforcement and jurisdiction for the time being.
A memorandum of a bipartisan civil rights leadership meeting summed up the situation in these words: “It is absolutely essential that we not make any concession to Dirksen at this time. … At the same time, it was agreed that in order to get cloture, we must get Dirksen.”
Hubert Humphrey and Thomas Kuchel issued a press statement warning that "illegal disturbances and demonstrations which lead to violence or injury" would hamper efforts to enact the civil rights bill. "Civil wrongs do not bring civil rights," they said, and the cause of civil rights was not helped by "unruly demonstrations and protests that bring hardships and unnecessary inconvenience to others."
At 10:30 a.m., a bipartisan group of staff assistants, Leadership Conference lobbyists, and Justice Department officials met to estimate support for cloture. They thought that by mid-May a minimum of 58 senators would vote to invoke cloture, short of the 67 required.
They ranked an additional six as “highly probable,” including Peter Dominick (R-CO), Howard Edmondson (D-OK), Roman Hruska (R-NE), Everett Jordan (R-ID), Jack Miller (R-IA), and Thruston Morton (R-KY). Six Republicans were identified as the “Dirksen group,” including Dirksen, Carl Curtis (R-NE), Norris Cotton (R-NH), Karl Mundt (R-SD), Bourke Hickenlooper (R-IA), and Edwin Mechem (R-NM).
The group estimated that the civil rights forces could ultimately get 64 of the 67 votes needed for cloture, although not all those votes were nailed down.
Joe Rauh reiterated that the Leadership Conference on Civil Rights opposed moving for cloture unless the votes were there.
“We had that pledge from Hubert in this room. … We need to hold Dirksen off re his amendments.”Mitchell, arguing for aggressive action to end debate: “To date, the South has the advantage. We are not winning, not because we are strong but because we are gentlemen.”
Humphrey: “We want them to make fools of themselves. If they run out of speeches on this, then they will have amendments. We will have to plan on cloture. Nobody won a war starving the enemy. We must shoot them on the battlefield.”
Mitchell: “You are shooting your friends if you trade with Dirksen.”
Humphrey: “We don’t have 65 votes for cloture.”
Rauh: “Public discussion of cloture leads to talk of compromise with the Dirksen amendments. Some of those are just as bad as the Southerners. He’s not moving.”
Humphrey: “We made no deal. We have to talk out loud.”
Mitchell: “There are 19 Southern senators who are not convinced.”
Humphrey: “Dirksen may offer some amendments. He will kill that stuff of mine with 500 amendments. We cannot get a quorum this Saturday. All those brave fighters for civil rights are elsewhere. … Democratic senators have told me that ‘if the life of the nation depends on my vote, then I say to hell with it.’”
Humphrey: “Unless we are ready to move in our clothes and our shavers and turn the Senate into a dormitory—which Mansfield won’t have, we have to do something else. The President grabbed me by the shoulder and damn near broke my arm. He said, ‘I’d run the show around the clock.’ That was three weeks ago. I told the President he is grabbing the wrong arm. I have the Senate wives calling me right now asking, ‘Why can’t the Senator be home now?’ They add: ‘The place isn’t being run intelligently.’ Sometimes I’m working far longer hours. The President says, ‘What about the pay bill? What about poverty? What about food stamps?’ Clarence, we aren’t going to sell out. If we do, it will be for a hell of a price.”
Dirksen prepared to go to Senate with ten amendments to the House-passed bill.
In his remarks on the Senate floor, Dirksen said, “I do not wish to save any pockets of prejudice for the future.” He also noted: “I have … had conversations with people who express the hope that the bill will be approved without a single amendment. I am afraid that people who utter that hope have no familiarity with the real legislative process. I believe the Senate is duty-bound carefully to examine all legislation.”
Of the amendments he said they were “the fruit of long study and staff work and consultation with people in business, in industry, in the contracting field, and in early nearly every other field of economic activity.”
The most important of the ten amendments would forbid interested organizations from bringing charges of unlawful employment practices—only an aggrieved person or a member of the Employment Commission could bring the charges.
In more detail, his proposal would
Allow the new Equal Employment Opportunity Commission to take jurisdiction in discrimination cases after six months, if a state agency had done nothing. Six months after that, if conditions had not changed, an aggrieved employee could file a lawsuit and the commission could intervene to compel compliance with a court order.
Include union hiring halls in the definition of an employment agency to ensure that employers would not be punished for discrimination that had been required by labor unions.
Make the EEOC’s technical studies on discrimination available to the public.
Delete a provision from the House-passed version of Title VII that would allow a third party—such as the NAACP—to file an employment discrimination complaint on behalf of an individual. Under Dirksen’s proposal, the employee himself would have to file.
Forbid the EEOC from making public anything said or done by it or an aggrieved employee during efforts to resolve the complaint.
Restrict the filing of employment discrimination suits to the jurisdiction where the alleged offense had occurred, and delete a provision allowing for suits in the location of a company’s home office.
Strike out the House-passed proposal allowing employers to refuse to hire atheists.
Require courts to find that any illegal act of discrimination had been willful, not inadvertent.
Delete a provision allowing courts to appoint a special master to investigate the facts of discrimination cases.
Stipulate that in states having fair employment laws, employers and unions need keep only the records required by existing state law, not a separate set of records under the federal law, and allow federal courts to require employers to comply with the EEOC’s request for evidence when they refused to provide it voluntarily.
Since they were designed primarily to test support, Dirksen announced that he would not yet call up his amendments.
Further, alluding to the public accommodations issue, he indicated that he intended to offer other, perhaps more controversial amendments as negotiations proceeded. “I do not believe these amendments which will be submitted directly would impair, weaken, or emasculate the pending measure. They are not so designed and they are not so inspired,” he stated.
Dirksen’s goal was to protect the 30 states that already had their own fair employment laws. Seventeen of those states were represented by a total of 23 Republican senators, whose votes would be needed for cloture.
An amendment, even though introduced, cannot be considered by the Senate until its author “calls it up,” or formally asks for its consideration.
Following the luncheon of the House and Senate Republican policy committees, Dirksen met with Congressman William McCulloch to review his amendments. McCulloch found some of them unobjectionable, but he found several objectionable, such as the proposal to take the Fair Employment Practices Commission out of the business of filing suits. He did not like the delay involved but he would live with it. As Stephen Horn recalled in his log, “Senators Case and Keating have spoken with McCulloch. Basically, House Republican Leader Halleck doesn’t give a damn. McCulloch will object but probably not.”
Horn and Robert Kimball, Representative John Lindsay’s assistant, commented on Dirksen’s role “and agreed that he is dramatic and wants to show when he finally lands on our side that the matter has been thoroughly considered.”
At 5:45 p.m., the bipartisan Senate leadership met in Humphrey’s office to review the list of senators and estimated 64 votes for cloture and 29 against, except that the 64 votes “might not be available now.”
Clarence Mitchell “thinks the statistics show the Republican situation looks good, but the Democratic vote does not.”
Horn’s notes include a tally sheet of senators.
The bipartisan Senate leadership met with Justice Department officials for two hours beginning at 9:30 a.m. Horn reviewed degrees of probability of votes for cloture from Senators Cotton, Dominick, Hickenlooper, Hruska, Jordan of Idaho, and Mechem.
Katzenbach believed “that Dirksen has the temporary pulling power by asking some of the senators to delay making a commitment [to vote for cloture] until he works something out.”
Horn: “Dirksen is a tent under which a lot can crawl on foreign policy matters. The Midwesterners can get under it and not be accused of being ‘Commies’ …. Dirksen, however, does not have that much pulling power on domestic issues.”
More discussion ensued of Dirksen amendments, the timing of cloture, and ways to use the press to influence senators.
“Humphrey recalls that Dirksen said that under no circumstances would he vote for cloture in the near future. June is possible. Dirksen has amendments and he will not vote for cloture until the fate of those amendments is decided. We have to get at those amendments and the sooner the better. We have to table Dirksen’s amendments.”
One staffer asks “why we simply can’t say that we will take certain amendments offered by Senator Dirksen.”
Humphrey replied that “it is like the lighfalutin Greenwich Village stuff where you are shifting the scenery around and you will lose them if you are too cute about it. You lose guys. There are a few slow learners.”
When told by Katzenbach that the Leadership Conference on Civil Rights might not be happy, Humphrey replied: “The worst thing they can do with me is tell me what to do. I want a bill. I think I’m smarter than they are. It is a matter of trust and confidence. You can’t give people blood tests [on their pro-civil rights purity] every 15 minutes.”
Humphrey, Kuchel, Attorney General Kennedy, Larry O’Brien, and other Justice Department and White House staff met to consider their response to Dirksen’s ten amendments.
They generally agreed on their tactics to deal with the minority leader. First, they would have to see all of the senator’s amendments, including his proposals on public accommodations, before deciding whether any were acceptable. The “no amendments” policy insisted upon by President Johnson, and the basis for the Democrats’ initial strategy, could not be abandoned unless the bipartisan leaders could evaluate the full consequences of accepting amendments.
A deal with Dirksen on his amendments, moreover, would have to include his commitment to work unreservedly to apply cloture to the entire bill. The leaders had no problem with Dirksen leaving his mark on the bill so long as this did not jeopardize any essential aspect of the legislation and so long as he could deliver the missing votes for cloture.
They also agreed to do their best to restrain the Leadership Conference lobbyists from attacking Dirksen publicly during this delicate period. Criticism from this direction would likely harden the minority leader’s position on Title VII and drive him toward the more conservative members of his party.
Trios of Catholic, Protestant, and Jewish seminarians began a round-the-clock vigil at the Lincoln Memorial that would continue until H.R. 7152 cleared the Senate.
The seventh week of Senate debate on H.R. 7152 began.
In their strategy meeting, the bipartisan floor leaders appreciated that Title VII (equal employment opportunity) had always been one of the most controversial parts of the bill—especially because of the way it was included at the last minute as part of the administration’s compromise with Bill McCulloch in October 1963.
Dirksen’s “Your Senator Reports” program was entitled “Civil Rights and the Legislative Process.” He reported that he was receiving about 1,000 letter each day on civil rights. He also received delegations from all over the country in his office. “I am sorry to say that the columnists and authors seem to impute to me some influence and powers over this civil rights measure pending in the Senate that perhaps I do not possess and it seems just like an overabundance of flattery.”
He responded to those who said the Senate should accept the House-passed bill without changes: “I’m sorry but I am a legislator. I have to deal with words that go on paper, that become law, and apply to the whole country and ultimately those words will be interpreted by a federal commission or by a United States court and I must be very careful about this to make sure that what we do is practical, that it is workable, that it is equitable and that it is fair to all people.”
The Joint Republican Leadership met again in the minority leader’s office. Dirksen presided and called the meeting to order at 9:10 a.m. He informed the group of his amendment concerning enforcement under Title VII, the so-called “mysterious” eleventh amendment to the equal employment title.
The eleventh amendment resulted from negotiations between Dirksen and Republican liberals. It was regarded by some as a possible route to compromise. Instead of Dirksen’s original proposal that the new Equal Employment Opportunity Commission be stripped of its authority to bring enforcement suits in courts, the new version would cede jurisdiction to state fair employment agencies for a limited period.
After a late conference on April 20th with Dirksen, one of the negotiators, John Sherman Cooper, offered this opinion to a reporter: “As I see it, what he [Dirksen] proposes is not to reduce conciliation but to provide more opportunity for conciliation. … It did not seem unreasonable to me.” Dirksen elaborated: “It is not weakening, if anything, this is going to be a substantial amendment in developing sentiment for the bill, not only here, but throughout the country. It is going to have appeal.”
The final language of the Dirksen amendment gave more authority to the five-member federal commission than his earlier drafts. But it fell far short of the power accorded the commission in the House-passed bill. Dirksen acknowledged that his amendment would make the fair employment section a “largely voluntary” instrument for dealing with job discrimination. “It keeps the spirit local,” he said. “It starts back at home.” Of his colleagues’ opinions, he remarked that he had found “some rather substantial people not too deeply offended,” presumably a reference to key Republican senators and to William McCulloch on the House side.
At 9:45 a.m., the bipartisan Senate leadership met. Katzenbach reported that Senator Hugh Scott had told him he was “making progress with Dirksen.” Katzenbach believed “that Dirksen is trying to bring Republicans along. Representative McCulloch also believes that. Senators Kuchel and Case plan to work on Dirksen today.”
At the press conference following the joint leadership meeting, the first two questions went to Dirksen and concerned reports about the “mysterious” 11th amendment. He said that he would offer it after the press conference ended. As if to confirm Dirksen’s secretiveness, House Minority Leader Halleck said he didn’t even know what Dirksen’s amendments were, that Dirksen hadn’t consulted with him on them, and that Halleck didn’t think such consultation was necessary. Dirksen, taken aback momentarily, said his “mysterious” 11th amendment had been discussed by the leadership enough to know his intentions.
As promised, Dirksen left the press conference, walked to the Senate floor, and submitted his amendment. He did not “call it up,” however. In fact, 35 amendments had been introduced by mid-afternoon, but none had been called up for debate. This meant that for twenty days the extended discussion in the Senate had focused on the House-passed bill itself, not possible amendments.
At 12:05 p.m., Frances Henderson, Executive Secretary to Senator Case, reported to Stephen Horn that no one had consulted with Charles Halleck concerning the Dirksen amendments at the time of their introduction.
According to John G. Stewart, the top legislative assistant to Humphrey, a pivotal conversation took place between Humphrey and Dirksen on the afternoon of 21st. On the Senate floor, Dirksen told Humphrey he realized it was his duty to lend his weight to the civil rights measure, and to that end he had only one more amendment in mind, a minor one to Title II, public accommodations.
Dirksen then took the opportunity to test the administration’s commitment to the bill by suggesting a strategy to gain a vote without obtaining cloture, thereby relieving Dirksen of the need to produce those two dozen or so Republican votes. Humphrey said cloture was the only option; it was the only way for southern forces to get themselves off the hook, according to Humphrey.
Dirksen interpreted Humphrey’s reply to mean the administration would go all the way to obtain cloture, and that he, Dirksen, would not be undercut as he continued to hunt for Republican votes.
That afternoon the southerners talked past the old 37-day record for civil rights filibustering. Richard Russell admitted to the NAACP’s Clarence Mitchell that “the jig was up,” that Lyndon Johnson would never compromise with the southerners.
Late in the evening and unexpectedly, southerners switched tactics and, for the first time, proposed a real amendment of their own.
Herman Talmadge (D-GA) introduced an amendment that would entitle defendants in criminal cases to jury trials and asked that “it be read and made the pending business.” His move accomplished two things. It narrowed the debate to one question: the right of trial by jury, effectively blocking further consideration of the comprehensive bill. And it placed civil rights supporters in the difficult position of explaining why, in the case of contempt of court, the defendant should not be granted a jury trial.
The jury trial issue. Civil rights proponents suspected that southerners sought the Talmadge amendment believing that most southern juries, which were all-white, would not convict someone, likely to be white, too, on charges of criminal contempt in civil rights cases. In other words, jury trials did not necessarily guarantee justice to victims of civil rights violations.
The southern strategy boxed in civil rights proponents who found it hard to explain why anyone should oppose such a seemingly basic right. The 1957 civil rights bill had allowed non-jury trials for criminal contempt—the defiance of court orders—in cases of voting rights or public accommodations. But it had limited punishment in such cases to a $300 fine or 45 days in jail. The House-passed version of H.R. 7152 had retained this provision in Titles I and II (voting rights and public accommodations) but had given no jury trial protection for any of the bill’s other sections. Talmadge’s amendments would extend mandatory jury trials to all cases of criminal contempt.
The Talmadge amendment appealed to all southern Democrats as a way of limiting the federal government’s role in enforcing the bill. At the same time, the amendment would likely win significant support from Republicans and some northern Democrats because of its attractiveness as a civil liberties issue. The pro-civil rights Senate leaders doubted their ability to defeat the Talmadge amendment on a straight up or down vote.
Late in the evening, Mansfield brought together a group to evaluate Dirksen’s eleventh amendment. The group included Hubert Humphrey, Nicholas Katzenbach, Larry O’Brien, and O’Brien aide Mike Manatos. Afterward, Humphrey told a reporter that he found the amendment “a bit troublesome.”
At a meeting called by President Johnson to brief the bipartisan congressional leadership on the war in Vietnam, Johnson agreed to meet with Dirksen about civil rights on April 29.
President Johnson met with civil rights bill floor leaders Humphrey and Kuchel.
Justice Department officials met with Clifford Case (R-NJ) and Joseph Clark (D-PA), Humphrey, and various congressional staffers to evaluate the Dirksen amendments. It was decided that substitute language for some of the amendments would have to be drafted. If Dirksen could go along with the substitute amendments, then there would be some area to negotiate on other amendments.
William McCulloch, ranking member of the House Judiciary Committee, issued a lengthy statement defending the civil rights bill in rebuttal to a newspaper advertisement sponsored by the Coordinating Committee for Fundamental American Freedoms.
Coordinating Committee for Fundamental American Freedoms
Mansfield met with Humphrey, Robert Kennedy, Nick Katzenbach, Burke Marshall, Secretary of the Senate Democrats Frank Valeo, and Mike Manatos to evaluate Dirksen’s position on H.R. 7152. They feared that the Senate might adopt the Talmadge amendment.
As an alternative, they thought that it would be smart to work with Dirksen on a substitute jury trial amendment. This arrangement would add valuable support for the substitute on a roll call vote. More importantly, it would involve Dirksen for the first time actively with the civil rights leadership in seeking a common tactical objective—to head off a positive vote on the Talmadge amendment.
Dirksen met with Mansfield and agreed to cosponsor the substitute. Dirksen first proposed a maximum penalty of a $300 fine and 10 days imprisonment that could be imposed without a jury trial. Humphrey countered with a limit of $300 and 45 days to all appropriate sections of the bill. The negotiators compromised at $300 and 30 days and applied the provision to the entire bill.
The negotiations moved on to Dirksen’s 11th employment amendment. Dirksen finally agreed to retain the Equal Opportunity Commission’s right to file suit. Attorney General Kennedy said following the meeting that “generally” Dirksen’s eleven amendments “are changes we could accept” with some language refinements. But he cautioned that any agreement would require seeing all amendments to determine what “the full bill might look like.” Humphrey agreed “that you can’t build a house until you know all the materials that will go into it.”
Kennedy aide Katzenbach agreed to prepare new language in cooperation with Humphrey and Republican Clifford Case.
At 2:00 p.m., the bipartisan Senate staff met to review the various Dirksen amendments. Additional meetings took place at 3:00 p.m., 4:00 p.m., and 6:40 p.m.
At 9:30 a.m., the bipartisan Senate leadership met. Part of the discussion involved producing an advertisement. Humphrey suggested “that an ad be placed which is split down the middle. One half of the picture would have Governor Wallace, police, dogs, and cattle prods. The other half of the picture would have the Constitution, President Kennedy, and President Johnson. The lead would be: ‘Which do you want?’”
Kuchel felt that the question was: “’Are we appealing to reason or to emotion?’ For those citizens—whether black, white, Oriental—we should appeal with emotion.”
Discussion continued on the jury trial amendment and Mansfield and Dirksen’s alternative.
Dirksen submitted the Mansfield-Dirksen substitute jury trial amendment (Amendment No. 516) to the Senate. Dirksen asked for its immediate consideration, and it replaced the Talmadge proposal to become the “pending business” of the Senate. If the Mansfield-Dirksen substitute passed, it would replace the Talmadge amendment in its entirety.
If southern Democrats voted against the Mansfield-Dirksen substitute, they would probably pass up their one chance to go on record in support of some jury trial provision. But if they supported the substitute, they would, in effect, be surrendering to the flanking action by the civil rights leaders. Their opposition might also foreclose any future chance to cooperate with Dirksen.
The Senate began the eighth week of debate on H.R. 7152.
At 9:30 a.m., the bipartisan Senate leadership met for further discussions about provisions of a jury trial amendment.
“Katzenbach sees the key as Dirksen and Mansfield working together.”
“Most in the room agree that we should not have a conference between the two Houses since the result of such a conference would came back to the Senate and would once again be debatable.”
Richard Russell left a conference with southern Democrats to denounce the Mansfield-Dirksen substitute as “a mustard plaster on a cancer.” He stated southerners’ intention to discuss the substitute at length, thereby delaying a vote for the near future.
Because the Senate had no way to force action on a measure short of cloture, votes could generally occur only with the unanimous consent of the senators. Because civil rights supporters had refused to allow a vote on the Talmadge amendment, the southerners retaliated by refusing to entertain votes on any other amendments, including Dirksen’s proposals, or the Mansfield-Dirksen substitute.
Dirksen met with conservative Nebraska Republican senators Roman Hruska and Carl Curtis at 12:30 p.m.
At the Republican senators’ weekly policy luncheon, Dirksen said that he planned to give southerners “one week’s notice” on the jury trial amendment. If it had not been voted on by the next Tuesday, May 5th, he would file a cloture petition.
Later he told the press corps that “this isn’t a bluff. I can count. There was an amazing consensus in the policy luncheon that the time had come to move off dead center.” Dirksen then expected to have the first of his eleven amendments concerning the fair employment title called up after which he would reveal his proposals for the public accommodations title.
Dirksen’s announcement concerned Humphrey and Kuchel. “They continued to believe that cloture should be the ultimate weapon used to destroy the filibuster completely, not to cripple merely a segment of it,” according to a Humphrey staffer. It should not be attempted until success was assured, and premature application might result in failure which would embolden others to seek major compromises that would weaken the bill.
At 4:00 p.m., Attorney General Robert Kennedy met with Senate Democratic leaders and with congressional staffers. The discussion focused on the wisdom of seeking cloture either on the jury trial amendment or on the entire bill. No firm decision was reached, but Mansfield agreed to discuss the matter with Dirksen.
Robert Kennedy later left open the possibility of accepting Dirksen’s amendments to the fair employment practices section of H.R. 7152 with some refinement.
A staff memorandum to Mike Mansfield: “The time seems fast approaching when cloture should be attempted on the civil rights bill. The many diverse elements that are part of the formula for a successful cloture vote, such as ‘fairness to the southerners,’ the backlog of legislation in a short election year, and boredom with the filibuster, are combining in a manner that soon should enable us to win the vote when it comes.”
At 5:50 p.m., President Johnson and Larry O’Brien discussed Senate strategy for bringing the civil rights bill to a vote. They talked about Dirksen’s amendments, Humphrey’s preference for seeking cloture on the entire bill rather than just on a jury trial amendment, the need to see all of Dirksen’s amendments in a block, and Dirksen’s plans to meet with the president the next day.
The National Interreligious Convocation on Civil Rights met at Georgetown University to demonstrate that support for the civil rights bill embraced all religious faiths. More than 5,000 people attended, and President Johnson addressed the group.
The clerics took the opportunity to buttonhole their representatives on the Hill. Fresh from an inspirational talk and hand-shaking session with President Johnson, a group of 13 civil rights-minded priests, rabbis, and ministers from the Chicago area met Dirksen for a stand-up interview in the ornate Senate reception room, just outside the Senate chamber. Dirksen was 20 minutes late. He had been huddling with Mansfield on the strategy to force a vote on the jury trial amendment.
“We want you to make your decisions in terms of your conscience, your concern for the entire country, and the goals of the United States,” a priest told him. Dirksen shot back, “I would make it no other way. My anxiety for the welfare of my country is no less than yours.”
Said B. Julian Smith, bishop of the Christian Methodist Episcopal Church of Chicago: “If you could just paint your face black, like mine, and go with me into the world for two days, I wouldn’t have to say a word.” Answered Dirksen, his patience as frazzled as his hair: “Must I do that? After thirty years in Congress, can’t I evaluate the importance of legislations [sic]? Really, do I have to do that?”
“I fairly scream and hope that I can get some work done,” Dirksen snapped. “Sometimes I wish the public would leave me alone so I could do my job,” he said. “I have been over this a thousand times,” he told Rabbi Irving Rosenbaum of the Chicago Loop Synagogue, who had begun to discuss Dirksen’s amendments. “You aren’t the only delegation, you know—there are hundreds like you….”
After a few more such exchanges, Dirksen pushed gently through the encircling clergy, saying, “The best thing you can do is say a prayer for me.”
President Johnson’s Remarks to a Group of Civil Rights Leaders
Hubert Humphrey met with President Johnson to urge the president to stand firm against any move to impose cloture on the jury trial amendment rather than on the entire bill.
At 9:45 a.m., the bipartisan Senate leadership met to continue discussions of the Dirksen amendments. The Justice Department had indicated a willingness to accept some of them, irritating Senator Joe Clark since he “thought we had all agreed to say ‘no’ to those amendments.”
The group discussed the wisdom of seeking cloture on the jury trial amendment vs. the entire bill.
Katzenbach believed that “Senator Dirksen is the key,” that the “substantive problems have been worked out,” and that Dirksen can produce the votes for cloture.
Clark: “Let’s not kid ourselves, this has become the Dirksen bill! I deplore it, but that’s it.”
Humphrey: “I’ve said this from the beginning. In 1957, we got in the back room and we made a deal.”
Javits: “I hope and pray this is Senator Dirksen’s bill. This could get away from Dirksen and Johnson. You are racing history. We are not heated up any more than the country.”
Hart: “I don’t know if my opponent is Russell or Dirksen.”
Javits: “I think the President is the only one who can settle the matter with Dirksen. Johnson must say, ‘I want to settle.’ If he doesn’t do that, I’ll settle on my terms.”
Humphrey [after describing a meeting yesterday with Johnson]: “I told the President at breakfast and at lunch what needed to be done; and that when President Kennedy was in The White House, he could deal with Dirksen. Kennedy was in the Senate but not of it. It is sort of two kings. Johnson will have to start moving and dealing with Dirksen.”
After some comments by Katzenbach, Humphrey added: “I talk to Dirksen every day.”
At 11:32 a.m., President Johnson called Mike Mansfield to ask, “What should I tell Dirksen when he starts trying to put me on the spot down here on this civil rights thing.” The two discussed the cloture strategy, with the president noting Humphrey’s preference to seek cloture on the entire bill. Mansfield preferred to keep open the option to seek cloture on the jury trial amendment, hoping to “break the ice” on the entire bill. Johnson ended by saying he would tell Dirksen that “these details can’t be decided down here in the White House” and whatever was worked out by Mansfield, Humphrey, and the Attorney General, “I’m sure I will be agreeable.”
At Noon, Dirksen met with Johnson at the White House. In late March, the senator had noted in a press conference that he used to see Johnson five or six times a day when they both served in the Senate, but that “it has been quite a while since I’ve seen him.”
Now, in late April, Dirksen intended to strike a bargain, and he took a gamble to do so. He announced to the press what he wanted from Johnson before he left for the White House, a tactic that would not endear him to the president, and Dirksen knew it. “You say you want the House bill without any change,” he planned to tell the president. “Well, in my humble opinion, you are not going to get it. Now it’s your play. What do you have to say?”
By signaling his intentions, Dirksen meant to test Johnson’s resolve. If Johnson agreed to strike a bargain and agree to changes in the House bill, the senator told the press he could deliver 22 to 25 votes for cloture.
President Johnson, however, was in no mood for compromise after his earlier phone call with Mansfield. In addition to talking strategy with the majority leader, Johnson had complained about Dirksen’s comments to the press.
He gave out a long interview of what he's going to tell me today, before he comes, which is not like him. I don't know what is happening to him here lately. He's acting like a shit-ass. …First thing, he said he wouldn’t treat a dog like I treated mine. … And it’s none of his damn business how I treat my dog, and I’m a helluva a lot better to dogs and humans, too, than he is. [Note: The president had been photographed lifting his beagles by their ears because it was god to “let them yelp.”]
Johnson did not discuss civil rights at any length with Dirksen in the 20-minute meeting, instead telling him to work it out with Humphrey. Dirksen came away with no concessions.
Over the course of the afternoon, the southern senators caucused but could not agree on whether to allow the Senate to vote on the jury trial amendment.
Richard Russell joined Dirksen to meet with Mike Mansfield, but no consensus emerged on a course of action.
At 2:00 p.m., the Leadership Conference on Civil Rights met with John Stewart, aide to Humphrey, and Stephen Horn, aide to Kuchel. They discussed cloture options, that is, should cloture be attempted on amendments or only on the entire bill.
Stewart observed “that on the basis on Dirksen’s actions to date, when he is confronted with opposition, the Senator has pulled back. There is nothing to suggest that if we preserve our position, we cannot reach some equitable agreement.”
Representatives of the various civil rights groups voiced their positions.
At 4:30 p.m., Mansfield, Humphrey, Kuchel and Dirksen met in Dirksen’s office to continue their discussion of the advisability of seeking cloture on the jury trial amendment. At the same time, Richard Russell, Sam Ervin (D-NC), and Thruston Morton (R-KY) met off the Senate floor in the Marble Room, preparing a perfecting amendment to the Talmadge amendment.
Word of Russell’s activity reached the senators in Dirksen’s office and, given the basic differences over the wisdom of cloture between Dirksen and Mansfield, on the one hand, and Humphrey and Kuchel on the other, this information gave the four a good excuse to postpone a final decision on whether to seek cloture immediately on the Mansfield-Dirksen substitute.
Dirksen announced that if southerners did not allow a vote on the jury trial amendment soon, he and Mansfield would file a cloture petition to end debate on the amendment. After meeting with Richard Russell later that day, Dirksen told reporters that a vote on the jury trial matter would occur without the need for cloture, signaling an apparent concession by Russell.
At 5:45 p.m., Stephen Horn spoke with Frances Henderson, executive secretary to Senator Clifford Case. “Henderson reports that Senator Case says that Dirksen is not buying their suggestions. I told her that Senator Kuchel had informed me that yesterday‘s results were dismal. Dirksen is not giving on the right to sue or anything. … Dirksen would allow the Attorney General to intervene but not to bring suit. Only private individuals would bring a suit. Department of Justice Attorney David Filvaroff is downcast and disappointed by the news.”
“Horn told Henderson that he was for ‘getting the show moving’; and then if Dirksen won’t get on board, to hell with it—we will push ahead.”
At 9:45 a.m., the bipartisan Senate leadership met with representatives from the Leadership Conference on Civil Rights to discuss whether or not to seek cloture on the jury trial amendment. There was disagreement about the number of senators who would vote for cloture on the amendment. They discussed the challenge of producing quorums, of deciding how much “tinkering” to do with the bill, which of the Dirksen amendments to accept, the wisdom of holding round-the-clock sessions (Clarence Mitchell believed they would wear down the civil rights senators who would then compromise and weaken the bill). The meeting adjourned at 10:45 a.m.
The ball rested with Richard Russell—would he permit a vote early next week on the Mansfield-Dirksen substitute, or would he force the Senate leaders to seek cloture? If he did not permit a vote, there would be no alternative but to file a cloture petition on Monday, May 4. This would set the stage for a cloture vote on Wednesday, May 6.
Hubert Humphrey said he thought President Johnson would be willing to sign a bill with some amendments. This signaled an apparent change in Johnson’s position from the previous day.
The bipartisan civil rights leadership group projected 64 to 65 senators as likely to vote for cloture on the jury trial amendment debate, assuming that Dirksen brought along the six Republicans who made up “the Dirksen group” when the vote occurred.
Dirksen received the American Good Government Society Award. His counterpart, Majority Leader Mansfield, said of his colleague:
I have known Senator Dirksen for many years. I have known him as a personal friend as well as a legislative colleague. The Senate is one of the great institutions of the nation. But the Senate functions, on occasion, in bizarre and almost incomprehensible ways, as you have undoubtedly noticed in connection with the current debate on civil rights. I am frank to admit that one of the strangest aberrations in Senate behavior is that the institution can get along without a Majority Leader, but it cannot possibly function without a Minority Leader. Moreover, he must be a Minority Leader of exceptional tact, forbearance and cooperativeness, a Minority Leader willing to put the basic operation of the Senate above all considerations of party.
Mansfield spoke for several minutes about Dirksen’s skill, calling him “a tower of national strength” and concluding that when the issues involved the fundamental precepts of the Constitution, “there is no partisanship, no sectionalism in Senator Dirksen. There is only a profound reason and a dedicated patriotism enshrined in a man of deeply human experience.”