The cloture crisis disappeared. Russell’s perfecting amendment had been drawn up, and the southern Democrats agreed informally to permit a vote. Mansfield, Dirksen, and Russell met on the Senate floor to pledge to one another that a vote would take place on Wednesday, May 6. This discussion took the place of any formal agreement, which would have been subject to a formal challenge.
Thruston Morton, working closely with Russell, then introduced the perfecting amendment, which restricted the right of jury trials to criminal contempt cases arising solely from the provisions of H.R. 7152. Since a moderate Republican was sponsoring the amendment, the civil rights forces could not attack it solely as an effort by southerners to weaken the legislation. Given the historical attractiveness of the jury trial issue under any circumstances, the vote on the Morton perfecting amendment seemed likely to be close. Russell, in short, had made an impressive recovery in countering the advantage assumed by the civil rights forces upon the introduction of the Mansfield-Dirksen substitute.
Morton called up his amendment, which meant that it had precedence over the Mansfield-Dirksen jury trial amendment, as would a similar perfecting amendment offered by John Sherman Cooper (R-KY), which would order automatic jury trials for some sections of the bill but give judges discretion in others.
In a 20-minute exchange, Jacob Javits (R-NY) suggested that white southern juries were unlikely to administer even-handed justice in civil rights cases. Russell immediately leapt to his feet, Javits protested the interruption, and an increasingly bitter exchange took place. Russell said that Javits always managed to suggest that there was “something fundamentally evil and sinful about people living in the South,” and always made his comments about southern juries with “a little sneer on his face.” Javits insisted he meant no offense, and the two men shook hands. But the encounter reflected the increasingly rancorous mood in the chamber.
Dirksen introduced Amendment No. 559 to H.R. 7152: “… to enforce the constitutional right to vote, to confer jurisdiction upon the district courts of the United States to provide injunctive relief against discrimination in public accommodations, to authorize the Attorney General to institute suits to protect constitutional rights in public facilities and public education, to extend the Commission on Civil Rights, to prevent discrimination in federally assisted programs, to establish a Commission on Equal Employment Opportunity, and for other purposes."
The Senate began its ninth week of debate on H.R. 7152.
At 9:30 a.m., the bipartisan Senate leadership met with representatives from the Justice Department and the Leadership Conference on Civil Rights. They discussed Dirksen’s Amendment No. 501—a provision to include union hiring halls—and the way to phrase the language. They also discussed the “atheist amendment.” After the meeting “Katzenbach, Marshall, Biemiller, Harris, and Horn sign-off on the following changes: Amend Dirksen’s Amendment No. 501 to read that on page 29, line 123, after ‘organization’ insert ‘(including the labor organization having a hiring hall or hiring office).’ Make the appropriate change on page 30, line 9, after ‘organization.’”
Dirksen’s Your Senator Reports segment was entitled, “The Jury Trial Amendment to the Civil Rights Act.” He made the case that there was no constitutional right to a jury trial for civil or criminal contempt of court. He explained that he and Mansfield proposed that as long as a fine for contempt was not over $300 and so long as the jail sentence was not over 30 days, there would be no right to a trial by jury.
At 9:45 a.m., the bipartisan Senate leadership met to continue discussions about the jury trial amendment—the Morton amendment was the pending business. Katzenbach continued to defend Dirksen: “I think it is important to get into a discussion with Dirksen. Dirksen is not anxious to weaken the bill.” Other senators wanted to offer strengthening amendments, which Justice opposed.
Senator Clark: “I had a somewhat significant conversation with Dirksen at the well yesterday. I asked him when his hydrogen bomb on Title II would be set off. Said Dirksen: ‘Joe, it is not a hydrogen bomb, it is more like a firecracker that a 12-year old boy would set off.’ I replied: ‘Will it be set off by a nice boy or by a juvenile delinquent.’”
At mid-morning, the six members of Democratic and Republican leadership and Justice Department officials, including Attorney General Kennedy, began negotiations on Dirksen’s proposed amendments. The meeting was held in Dirksen’s ornate office under the tinkling glass chandelier that once belonged to Thomas Jefferson. This session followed the leadership’s regular Tuesday White House breakfast at which President Johnson handed both Dirksen and Thomas Kuchel a bipartisan pat on the back for their work on the bill. The fate of H.R. 7152 was about to be decided. If the bill had to be redrafted, the chore would fall to Dirksen’s and Mansfield’s legal advisers, along with Justice Department officials Nicholas Katzenbach and Burke Marshall. Dirksen’s staffers were Cornelius Kennedy, Clyde Flynn, and Bernard Waters. Mansfield’s were Kenneth Teasdale and Charles Ferris.
The meeting was to be the first in a series, and the composition of the negotiating team was of interest. Reporter Elizabeth Drew later called it “a process almost unprecedented in the annals of legislative history.” A sort of ad hoc committee of senators with an interest, senators who were friends of senators with an interest, senators’ aides, and Justice Department officials took the place of a regular legislative committee. As she described it, some senators drifted in, some out, and some were pointedly excluded.
Dirksen surprised the group by submitting 40 additional amendments instead of the single amendment he had promised. He divided them into Track A (technical), Track B (semi-technical), and Track C (substantive).
The group agreed on the technical changes but postponed consideration of the other two tracks until the next day. The issue which had separated Dirksen from the civil rights forces in the beginning still remained unsettled, that is, his 11 amendments dealing with the procedure for enforcing the prohibitions against discrimination in public accommodations and employment.
Dirksen seemed particularly concerned that the federal government be kept from harassing individual businessmen by requiring complex and detailed reports or threatening them with court action in disputes which otherwise might be settled voluntarily. Dirksen continued to push for a procedure which placed the principal burden of court enforcement upon the individual complainant. His lead staffer, Neal Kennedy, believed there should be no need to prove that a hotel owner, for example, intended to discriminate. The discrimination should be self-evident, and the punishment self-enforcing, as with a speed limit. An offender should be easily judged to have exceeded the limit or not.
The Justice Department, on the other hand, believed that unless the authority existed to confront businessmen of a given geographical area with enforceable orders to desegregate or stop discriminatory hiring practices, there would be strong competitive advantages for individual firms to hold out as long as possible and few incentives for voluntary action. In the department’s eyes, enforcement which relied on private individuals initiating court action against a single firm would become an endless process. The Justice Department attorneys argued for federal government authority to combat massive resistance as the most effective way not only to achieve enforcement in situations of last-ditch opposition but also to promote voluntary compliance on a broader scale.
As if to confirm Dirksen’s dilemma, Iowa Senator Bourke Hickenlooper, a leader of Republican conservatives, announced his opposition to any enforceable Title II (public accommodations) or Title VII (equal employment) in the bill and stalked out of the meeting, never to return.
Senator Kuchel told Stephen Horn “that the morning meeting in Dirksen’s office had not gotten very far. … Mostly they spent their time going over what the language meant. There were two piles of amendments. Pile A included the ‘non-controversial’ and Pile B included the ‘controversial’ amendments. Dirksen is not giving on enforcement or effective cession for the FEPC [to be renamed the Equal Employment Opportunity Commission]. They will go back at it tomorrow.” Horn predicted that 62 to 63 senators would vote for cloture on May 15 or 18, including Dominick and Cotton. “Kuchel was pretty disgusted with the Dirksen slowdown.”
According to notes recorded by John Stewart, aide to Hubert Humphrey:
There is some feeling that perhaps Dirksen may be overplaying his hand with this grandiose scheme of amendments. It is also possible that Dirksen’s staff has presented him with these various changes and that Dirksen is going along with them to see what happens. I would suppose that Dirksen’s earlier statement to Humphrey that he had no great number of amendments to offer reflects more accurately Dirksen’s true personal attitudes. But we must nevertheless weed through these various proposals and get down to bedrock to what Dirksen really wants. But I must say this weeding process has dragged along for a rather extended period of time.
It should not be overlooked that Dirksen is not totally a free agent in this battle either. He has the Republican Party to be concerned about, and if the Senate is close to voting cloture and Dirksen does not so vote, it will put him in a rather embarrassing and difficult situation.
Predictably, the minority leader’s ambitious changes angered civil rights proponents. But Dirksen and the pro-civil rights senators were making progress. True, these early May negotiations represented a collapse of the Democratic leadership's original hopes that the Senate would pass the House bill without change, thereby removing all of the parliamentary dangers of House-Senate disagreement.
But the mathematics of a cloture vote, plus Dirksen's principled refusal to accept the House bill as is, made compromise necessary. Only if some of Dirksen's objections were dealt with, would he or could he possibly produce the votes that would make the difference on cloture. Dirksen apparently felt at this point that he had 22 Republicans for cloture. Only substantial changes would attract Karl Mundt (R-SD) or Carl Curtis (R-NE), he believed, but Dirksen held out hope that more modest compromises would bring along Hickenlooper and Len B. Jordan (R-ID).
President Johnson held a press conference and expressed hope that the civil rights bill would soon pass so that the nation could turn its attention to other priorities. The president continued to lobby senators to vote for cloture, focusing on Republicans, including Hickenlooper, and trading favors for votes.
“The President’s News Conference Held on the South Lawn at the White House”
Mike Mansfield sent a memo to the president estimating that he was still three or four votes short of the number needed to achieve cloture. He suggested that the president line up Bourke Hickenlooper’s support. The Iowa senator was unhappy with the administration for rejecting his choice for an ambassadorial appointment. If Hickenlooper could be won over, the memo argued, he might carry with him Senators Curtis, Pearson, and Hruska. The president took the advice.
Walter Reuther of the United Auto Workers sent a telegram to Humphrey and Kuchel rejecting “both as unwise and unnecessary current suggestions that concessions must be made to Senator Dirksen in order to purchase his vote for cloture. We firmly believe that the compelling urgency of this great moral issue of civil rights will persuade Senator Dirksen to vote for cloture in June whether his proposed amendments are adopted or not.”
The Senate took its first votes on amendments to the civil rights bill by considering the Morton jury trial amendment. Four roll call votes were required to settle this one issue and to defeat the coalition of Republicans, southern Democrats, and western Democrats supporting it.
The initial vote produced a 45-45 tie. Needing a clear majority, the amendment had failed. But when Dirksen moved routinely to table Mansfield’s routine motion to reconsider the Morton amendment, the opponents of the whole bill won by defeating the tabling motion—the civil rights forces, including Dirksen, were defeated 44-47. The Senate then voted immediately on the motion to reconsider the Morton amendment and again the civil rights coalition lost, 46-45. Finally, the floor leaders rallied their forces and managed to defeat the Morton amendment on its reconsideration, 46-45.
The four votes on the Morton amendment revealed that most of the senators evaluated in February as “crucial” to obtaining cloture still were not aligned with the civil rights forces. Eight of the 12 opposed their party leaders, 3 were favorable, and 1 was absent. Dirksen’s leadership had not converted any of the dozen Republicans to the civil rights cause.
Humphrey staffer John Stewart wrote in his diary: “It will be somewhat of a major miracle if the pro-civil rights forces can get themselves back in order and push ahead with some degree of resolution and determination.” A few pages later, he added: “It appeared that Senator Dirksen has now fully thrown his weight behind passage of the bill and upon cloture.”
At the Joint Senate House Republican Leadership meeting, Dirksen moderated a 90-minute general discussion of his amendments. To reporters after the session, Dirksen said he had finished classifications A, B, and C dealing with Title II (public accommodations), which added up to 69 suggested amendments. He expected that tomorrow the negotiations on his proposals would wrap up, and then the actual language would be released.
At the morning meeting of the bipartisan Senate civil rights leadership, Humphrey explained why he had postponed the vote on the Mansfield-Dirksen jury trial amendment. “It is terribly important to get a bigger vote on the Mansfield-Dirksen than on the Morton amendment. I told [Dirksen] the first test is on the Mansfield-Dirksen amendment. If the leaders backed up by their deputies can’t produce, then we are in trouble. If we can produce 64 votes, then we are okay. But if we secure 49 votes, then we have had it.”
Yesterday’s vote to defeat the Morton amendment attracted only 46 votes.
Humphrey reacted strongly to Joe Rauh’s comment that no further negotiations should take place with Dirksen. “Whatever we are doing has but one purpose. And that is to secure a civil rights bill,” Humphrey exclaimed. “Anybody who has an alternative, I’m glad to hear it. It is not pleasant for Tommy Kuchel and myself to have it appear that Dirksen is writing the ticket. I want the bill passed—the House-passed bill. We will not eliminate any title, purpose, or emasculate the bill. We aren’t going to agree or negotiate anything which violates the House view.” He concluded, “I’d rather have no bill than the shell of a bill. I’d just as soon politically have no bill than a sham.”
Senator Clark: “The more I get into this, the more I agree with Hubert. Arresting senators, tabling amendments, staying here all summer makes no sense. I am satisfied that we need cloture to get the bill. We have two questions: (a) ‘What price does he [Humphrey] pay to get cloture?’ and (b) ‘Is it too high?’”
Humphrey: “The Leadership Conference should be out getting votes. I saw a number of conservative Republicans taking on their own leader [Dirksen] in the Republican cloakroom last evening. I’m not getting much help on cloture. I’d like a whack on cloture. And this changes my original thinking of no cloture unless the votes are there.”
Later in the morning, Kuchel informed Horn that Senator Mundt would vote against cloture and the civil rights bill.
After the bipartisan civil rights leadership meeting, negotiations continued for a third day on Dirksen’s amendments in the conference room of his office suite. The minority leader objected to the phrase “massive resistance” as a proper description of violations punishable under Title II (public accommodations). Dirksen felt that the bill should be a self-enforcing piece of legislation and that an offense should be clearly described and the judicial action automatic.
Dirksen was concerned about how this section would be enforced. He worried that it would be used to harass individual business owners who might refuse to serve blacks with threats of court action, when a less confrontational approach might work just as well.
At the afternoon staff meeting, Dirksen staffer Clyde Flynn suggested that the words “pattern or practice of massive resistance in any geographical area” be substituted for “massive resistance,” and the Justice Department readily agreed.
The Justice Department sought a way to sanction communities that supported discriminatory behavior, and Flynn’s language met the objective. The phrase “pattern or practice” was incorporated in both Title II and Title VII, to define the type of discrimination in public accommodations and employment that would be outlawed by the bill (with Dirksen’s caveat that employment discrimination would still have to be “willful.”)
According to John Stewart, “With some minor refinements, this formula broke the impasse with Dirksen which had existed since President Kennedy’s first proposals came to the Congress almost a year earlier.”
At 3:25 p.m., Kuchel and Horn discussed the strategy for cloture. “As for cloture, Kuchel is not so sure he would go along with the Humphrey-Horn view that we should have a cloture vote prior to the Memorial Day recess. But he agrees that it is no good voting when Dirksen has some massive resistance amendment on the floor.”
At 9:30 a.m., the bipartisan Senate leadership met in Senator Magnuson’s office. “Katzenbach believes some of the language can be worked out to meet Senator Dirksen’s objections. Dirksen appears to want a vote on cloture during the first week of June. [Senator Kenneth] Keating thinks we will be able to get 22 Republican votes now for cloture. If we want more, we will have to make substantial changes. We will not get Mundt or Curtis. Katzenbach believes Dirksen is thinking of getting Hickenlooper and [Len] Jordan to support cloture.”
Katzenbach suggested that “we need to put in words as best we can that in individual suits we are talking about patterns of discrimination. The stories are vague enough in the papers to cover the negotiations.”
Frances Henderson, aide to Senator Case, “feels that one of the problems is that Senator Dirksen goes to the press gallery and spreads his story before the press and it is not always what happened in a meeting!”
Katzenbach “believes we will reach either impasse or agreement with Dirksen next week. Katzenbach does not ‘regard the Harlem Globetrotters as legislative examples of segregation.’ He regards it as ‘bad for racial relations to have just Negroes on the team.’”
The fourth day of negotiations on the Dirksen amendments took place. The primary unresolved issue concerning Title II (public accommodations) was whether the Attorney General should have the right, as in the House bill, to file court suits when local and state governments were allegedly discriminating.
Dirksen recorded his objection to the public accommodations title bluntly, capitalizing words for emphasis: “THE PURPORT OF THE LANGUAGE IN THIS TITLE IS simply this: Can Congress destroy FREEDOM of ASSOCIATION in the case of privately owned and operated businesses.” Dirksen did not think so. He cited a Supreme Court ruling in 1883 that reaffirmed the rights of states to regulate “ALL PRIVATE RIGHTS BETWEEN MAN AND MAN IN SOCIETY.” More than thirty states had such laws, including Illinois. Dirksen felt that the House bill gave the Attorney General carte blanche to traipse all over the country as a federally funded legal aid society, picking and choosing cases at will and jumping into local problems only to harass small businessmen.
Justice Department officials argued that they could not solve the discrimination problem if they had to wait until many grievances were filed by individuals in order for a “pattern or practice” to be established.
One of Dirksen’s aides suggested writing some language into the bill setting limits on the Attorney General’s authority. There were other technical changes, too, such as a requirement that a complaint be under oath and that the person making a complaint be able to recite in reasonable detail the alleged facts. “This is a law,” Dirksen told Attorney General Kennedy, “which will make important changes in American society. It has to be as perfect as possible.”
The negotiators accepted Dirksen’s proposals to permit an initial period of state jurisdiction over cases arising under Title II and Title VII.
At 1:00 p.m., the Senate Republican pro-civil rights leadership met with the House Republican pro-civil rights leadership. Kuchel opened the meeting by indicating that its purpose was “to review and to introduce helpful and strengthening amendments to the House-passed civil rights legislation.” He agreed that if “Representative McCulloch does not agree with the proposals, we should not introduce them.”
McCulloch: “I don’t believe a useful purpose is served to try to make the House-passed bill stronger. The House-passed bill is a strong bill.”
Javits: “There is a real feeling on our part that the only perfecting amendments being offered are Dirksen’s. Let me be practical. There is no use talking in riddles. Keating has an amendment to include state elections. We have one amendment which says that criminal acts are to be spelled out.”
McCulloch replied that “in the House, I offered an amendment to include state and local elections. I receded because we wanted to get the show on the road. That could well be the peg on which we hang ourselves on civil rights in the House.”
William Copenhaver, Counsel to the House Judiciary Committee: “There was a time when a package proposal was a possibility. If the House of Representatives had the bill before it today, it would not pass the present bill. Each day the filibuster goes on, we lose support in the House.”
McCulloch: “We aren’t that pig-headed. We are talking that way—talk’s big, so don’t have a wide hole in the dyke. One hundred forty-seven amendments were offered in the House.”
Discussion continued on the bill’s provisions, the prospects for various amendments, and how the House would react to changes in the House-passed bill.
President Johnson spoke in Atlanta, Georgia: “The rights of no single American are truly secure until the rights of all Americans are secure.”
“Remarks Upon Arrival at the Airport, Gainesville, Georgia”
The Senate began its 10th week of debate on H.R. 7152.
At 9:30 a.m., the bipartisan Senate leadership met with representatives from the Justice Department and the Leadership Conference on Civil Rights.
Katzenbach: “Dirksen knows that his text on Title II is unacceptable. It is text belonging to no one and supported by no one.”
Humphrey: “The worst thing we can do is circulate rumors. Dirksen said last fall that under no circumstances would he support the enforcement of Title II.”
Keating: “I never heard him say it that strongly.”
Humphrey: “I told Dirksen, ‘Better no bill than a weak bill.’”
Concern was expressed about the reception Senate inaction received by the press and out in the country.
Humphrey: “We need to tell Dirksen, ‘Bring us cloture, then we will work on the amendments.’ Here’s what I am worried about. This is the third week we have spent on the jury trial amendment. Russell said that we would vote last Wednesday. The New York and Washington papers are the only clear air provided once one leaves Washington. There is a need for me to go to the leader [Mansfield]. I said in Des Moines that ‘the South is not what is holding up the bill. It is the West, Midwest, and East.’ You are not going to change [Richard] Russell, [Lister] Hill, [John] Tower, and [John] Sparkman. Clarence [Mitchell], it is time for the NAACP and the AFL-CIO to put their fingers on 81 other senators around here. The plea should be, ‘Give us the right to vote.’ People are getting disgusted. … Out in the country the people wonder what we are doing. Here politics is money. Yesterday on TV, I noted that ‘it would be helpful if [Martin Luther] King, [James] Farmer, and [George] Meany get together and let them say, ‘Enough of adult delinquency in the Senate.’ Every day we wait for cloture is nibbling away at the bill.”
Southern Democrats called up a perfecting amendment sponsored by George Smathers (D-FL). Now a vote on the Mansfield-Dirksen substitute had to await the disposal of the Smathers amendment. According to Humphrey’s aide, “The southern Democrats apparently had resumed the strategy of total obstructionism.”
Dirksen drafted his weekly broadcast to constituents, this one entitled “The 59th Day,” a summary of the negotiations on H.R. 7152. “Sometimes people may say this is an effort to water down the civil rights bill. 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.”
At breakfast with the president, Mike Mansfield told Johnson that progress in the Senate on civil rights was “nil.” The president was enraged and insisted that the Senate go into round-the-clock sessions to break the filibuster. Mansfield and Humphrey refused.
Later in the day, Johnson warned,
That bill must be passed. 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 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.
A nose count by Humphrey indicated 55 sure votes for cloture and eight possibles.
“Remarks at a Meeting of the President’s Committee on Equal Employment Opportunity”
At 9:50 a.m., the bipartisan Senate leadership met to discuss cloture, which senators would support the action, the idea of holding round-the-clock sessions, and negotiations with Dirksen.
At 12:50 p.m., the bipartisan Senate leadership met in Humphrey’s office. They discussed efforts to convince various senators to support cloture.
Humphrey reported that “he took Dirksen out to dinner last night: I know his views and Mansfield’s concerning holding around-the-night sessions. The President was up in arms at the Congressional leadership meeting this morning.”
The group identified 55 sure “yes” votes and nine “possible” votes [Aiken, Carlson, Dirksen, Long, Miller, Pearson, Lausche, and Cotton were listed, one short of nine].
They identified “doubtful” votes: Bennett, Bible, Cannon, Cotton, Curtis, Hruska, L. Jordan. Mechem, Mundt, Simpson, John J. Williams, Yarborough, and Young. Cotton and Williams appeared on both the “possible” and “doubtful” lists.
Humphrey summed it up: “We have 55 votes for cloture including Senator Claire Engle (D-CA) who has been ill. If Engle cannot make it to the floor, then we have only 54 ‘sure’ votes.” Humphrey believed that President Johnson could help with “Walters, Hayden, Byrd of West Virginia, Bible, Cannon, and maybe Fulbright.”
After his weekly Republican policy luncheon, Dirksen told the press, “There is a feeling the time has come for action, and we’ve just about gotten there.”
Mansfield berated Russell for going back on his pledge to permit a vote that week on the Mansfield-Dirksen jury trial amendment.
In retaliation against the southerners’ stubbornness, Mansfield stretched out the day’s session until 12:18 a.m.
Dirksen and Humphrey met at dinner. Dirksen promised to deliver 25 Republican votes for cloture.
NOTE: This dinner may have taken place on May 11.
The Senate tied the longest filibuster in history—two months in 1846 on the Oregon bill which would end the U.S.’s agreement with England on joint occupancy of the Oregon territory.
At 9:30 a.m., Humphrey, Robert Kennedy, Senator Joe Clark (D-PA), Larry O’Brien, Mike Manatos, and Frank Valeo met in Mansfield’s office. They agreed that Dirksen had no alternative but to support cloture, and that the minority leader needed Democrats as much as they needed him. Therefore, they decided not to give way so easily to any more of his demands.
At 10:30 a.m., the fifth day of negotiations began in Dirksen’s office.
Dirksen suggested the following: (1) If the negotiators reached an understanding on changes to the bill, the new language must be mimeographed and shared with all senators; (2) Republicans and Democrats should meet in their respective caucuses to get agreement on the new bill; and (3) the Senate should vote on cloture title by title. Dirksen backed down on the last point when Humphrey insisted that there be only one cloture vote on the entire bill.
Attorney General Kennedy persuaded Dirksen to abandon the idea of a new Title XII that would define the Attorney General’s powers to handle any resistance to the act; instead, Dirksen agreed to apply the “pattern and practice” language to Titles II (public accommodations) and VII (equal employment).
Next, Kennedy got the minority leader to concede that, in Title II, the civil rights commission be granted specific authority to recommend that the Attorney General take direct enforcement action. Both sides agreed to a minor amendment in order to secure Senator Karl Mundt’s (R-SD) vote for cloture.
The compromise civil rights bill worked out in Dirksen's office did not seriously weaken the original H.R. 7152. The bargainers were careful not to include any changes that might cause the House to reconsider the entire bill once the Senate had finished its work. The "clean bill," as it was known, made somewhat over seventy changes in H.R. 7152, most of them concerning wording and punctuation and most of them designed to win over reluctant Republicans and to allow cloture.
Dirksen won agreement that stripped the Equal Employment Opportunity Commission (EEOC) of its authority to file antidiscrimination suits. Though the commission could make recommendations, only the Justice Department had the power to initiate a suit. This proposal reflected Dirksen’s discomfort with executive agencies whose enforcement powers had grown through the years and which fueled conservative opposition to an expansive federal government. Dirksen also insisted that local agencies have the first opportunity to enforce federal law. He emphasized that fair employment “starts back home” and that the EEOC must defer to state Fair Employment Practices Commissions (FEPCs) and their commitment to “local spirit.” He recognized, however, that southern states might create paper FEPCs to avoid federal enforcement and agreed that the EEOC could step in after sixty days.
Finally, the bipartisan group modified wording in Titles II and VII. The Justice Department said it needed the authority to initiate suits to deal with a “pattern and practice” of discrimination, rather than isolated cases. An example would be discrimination against blacks by all restaurants in a community. Justice insisted it would be impossible to deal with such a situation if individual African Americans had to be relied upon to bring individual suits against each restaurant. Justice Department officials also explained that many businessmen who wanted to end discrimination did not dare do so unless they had legal backing. Unless the Attorney General had the residual power to take action against a hardened pattern of discrimination, they said, the law would be a “phony.”
The compromise gave the Attorney General authority under Title II to bring suit if the state agency or the Federal Community Relations Service created by the bill were unable to gain compliance. The Attorney General would not, however, have the power to initiate suits on behalf of individuals. These individuals would have to begin legal suits themselves. Again, this provision protected states, chiefly those in the north and west where Dirksen needed support for the cloture vote, from federal interference without diluting the effort to achieve progress in the South.
In sum, the major change in what came to be called the “Dirksen substitute” was to lessen the emphasis on federal enforcement in cases of fair employment and public accommodations violations. Consistent with his long-held contempt for overlapping bureaucracies and frivolous litigation that stifled individual initiative, Dirksen wanted more emphasis on solving problems by local agencies. Thirty-four states had public accommodations laws; 31 had employment practices laws. Many were stronger laws than the federal measure. He believed they should have priority over federal intrusion. By the same token, the compromise also reserved a period for voluntary compliance before the Attorney General could act in discrimination suits.
Finally, Kennedy countered Dirksen’s strong objection to the voting fraud provision of Title V (Civil Rights Commission). The Attorney General had promised Bill McCulloch to keep it in the bill. Kennedy succeeded.
By the middle of the afternoon, all outstanding differences had been resolved. Both sides acknowledged their commitment to the changes. They would join forces to apply cloture on the full bill. Neither side would ask for additional changes to the major agreements which had been hammered out.
According to Humphrey aide John Stewart, “the day’s events probably were vital to the passage or failure of the bill. It appeared that Senator Dirksen has now fully thrown his weight behind passage of the bill and upon cloture. He did recede on most of the important points today and, as a result, the package does seem to be adequate and effective.” While acknowledging the accomplishment, Stewart wondered if “the various Leadership Conference people” would agree.
After the day-long talks, Robert Kennedy told reporters, "There's an understanding between all who participated … this bill is perfectly satisfactory to me." The Attorney General called President Johnson at 4:05 p.m., shortly after the negotiations for the day ended. He reported that agreement had been reached, noting that "Senator Dirksen was terrific" and urging Johnson to call the minority leader.
The president called Dirksen at 4:30. To his old friend he began, "The Attorney General said that you were very helpful and did an excellent job and that I ought to tell you that I admire you ... and I told him that I had already done that for some time…." He and Dirksen commiserated about the schedule for a vote before Johnson concluded: "I saw your exhibit at the World's Fair, and it's the Land of Lincoln, so you're worthy of the Land of Lincoln. And a man from Illinois is going to pass the bill, and I'll see that you get proper attention and credit."
During the conversation, Dirksen said to Johnson, “You’ve got to take care of your own people, and you’re doing that … we don’t want this to be a Democrat bill, we want it to be an American bill, and when these schools are coming out—they’re coming out the end of this month—and if we haven’t got a bill, we’re in a helluva shape.”
In a call three hours later with Humphrey, Johnson asked if Dirksen could deliver 25 Republicans for cloture. Based on a conversation he had with Dirksen at dinner the night before, Humphrey expressed confidence, "Mr. President, we've got a much better bill than anyone even dreamed possible. We haven't weakened this bill one damn bit; in fact in some places we've improved it. That's no lie; we really have." Humphrey estimated there would be 55 solid votes for cloture, plus eight possible, including Dirksen.
Years later, Humphrey evaluated Dirksen's work on the bill this way:
The meetings in Dirksen's office were, as we know, successful. Actually, Dirksen gave a great deal of ground. The bill which he finally supported—the substitute—in my mind is as good or better a bill than the House bill. Dirksen supported with his own amendments an effective enforcement of Title II, integration of public accommodations, but he mainly insisted on some time for conciliation and more involvement of local and state government, both of which were very good ideas, and I vigorously supported them.
Two questions remained following the final negotiations with Dirksen. First, would the more conservative members of the Republican Party, those senators known to hold the balance of power on cloture, join in Dirksen’s support of the substitute? Second, would the activist civil rights supporters of H.R. 7152, both inside and outside the Senate, accept the Dirksen-Mansfield revisions? If either group refused to back the new proposals, the chances of obtaining cloture dimmed.
Within two hours of the end of negotiations, Humphrey called the principal officials of the Leadership Conference on Civil Rights to his office for a briefing on the Dirksen-Mansfield substitute. After hearing Assistant Attorney General Burke Marshall describe the principal elements of the proposal, the group remained noncommittal.
Bill McCulloch met for an hour with Dirksen and pledged to support the Dirksen-Mansfield substitute to H.R. 7152.
Discussions continued with the Leadership Conference on Civil Rights. By the end of the day, these officials generally supported the Dirksen-Mansfield substitute.
At 5:00 p.m., the pro-civil rights Republican Senate leadership met in Kuchel’s office. Kuchel opened the meeting by noting that its purpose was to decide on strengthening amendments. “He thinks that we should have several Republican co-authored strengthening amendments.”
Keating: “Are you going to refrain from offering any amendments because McCulloch doesn’t think the House will approve of them?”
Kuchel: “No, but that is a factor. I’d be prepared to co-author any strengthening amendments that you have.”
Javits: “The Southerners may vote for them knowing the reaction which will occur in the House.”
Discussion continued on possible amendments and the reaction in the House, and the rules for considering changes in the House-passed bill.
Horn’s notes include copies of various amendments.
At 10:00 a.m., Senator Keating, Katzenbach, John Stewart, Horn, and Patricia Connell, counsel to Keating, met.
Katzenbach did not believe Dirksen and McCulloch had talked in three weeks [this is contradicted by an entry on May 14]. “He is worried that McCulloch will be irked at the dropping of Title V from the bill and the fraud provisions which he very strongly backed.”
“Someone mentioned an Indian reservation contract quota for Indians. On Monday morning, Dirksen had the language from Mundt as his price!”
Katzenbach said that Dirksen had told him he had 25 Republican votes for cloture. “I can’t believe that Dirksen would go as far as he did unless he is able to produce the votes.”
The Senate began its 12th week of debate on the civil rights bill.
At 9:45 a.m., the bipartisan Senate leadership met to discuss various amendments.
Dirksen prepared remarks for his broadcast back to Illinois. Entitled “Nothing is Eternal Except Change,” Dirksen talked about the many federal programs that initially were resisted but which wound up as integral to American life. He recounted the accomplishments of blacks since World War II. He quoted Victor Hugo, the historian and French philosopher who, on the night he died, supposedly put an entry in his diary to the effect that “stronger than all the armies is an idea whose time has come.” With regard to civil rights, Dirksen continued, “I fancy this idea’s time has come and hence there can be no happiness, there can be no freedom from vexation, until the Congress has met this challenge.”
Democratic and Republican senators met separately in their respective caucuses to consider the May 13 compromise, that is, the Dirksen-Mansfield substitute. As Dirksen had instructed, each senator had received, the day before, copies of the 70-page mimeographed document, which showed the original bill with proposed new language underlined and omissions framed in brackets.
Forty-nine Democrats met in the old Supreme Court chamber. For the Democrats, it was only the third time the Senate Democratic Conference had met in 1964, the last meeting occurring on January 28th. Mansfield opened the session with a strong defense of relying on cloture to get the bill passed. He acknowledged the toll taken by the filibuster but claimed they did not have the votes yet for cloture, but that cloture was a part of the Senate rules “and, at this point, it would appear to be about the only recourse open to the Senate to get around the impasse.”
He offered the opinion that the Dirksen amendments would be helpful in getting those votes. “For the ardent supporters of civil rights, I would urge you not to allow your feelings to blind you to the realities which confront us. … I personally believe that the resultant compromises [reached with Dirksen] are not only acceptable but essential for the passage of any civil rights legislation and I underscore the words any and essential.”
Humphrey then proceeded to explain the amendments, contending that the bill was not weakened but acknowledging that they gave greater emphasis to voluntary compliance and to delaying enforcement. A general discussion of cloture followed and the hope was expressed that the vote might come within three weeks.
Although southerners continued to object to the now-modified bill, liberals joined in support and the party emerged with no general opposition to the bill.
The Republicans, numbering 27, met in S-207, a large conference room near the Senate chamber at 9:24 a.m. Dirksen and staff member Neal Kennedy reviewed 10 of the 11 titles. In contrast to the Democrats’ caucus, the Republicans began to quarrel.
Bourke Hickenlooper, widely known to be jealous of Dirksen, led the objectors. Hickenlooper, chairman of the Republican Policy Committee, stormed out of the meeting proclaiming, “I don’t know who the minority leader is speaking for! He is not speaking for Hickenlooper!” The Iowan strenuously objected to the powers given to the Attorney General in Title VII, the equal employment opportunity title, deeming its delegated authority “discretionary and coercive.” The bill, he said, was “a gargantuan thing” that would multiply bureaucracies. Some of Dirksen’s amendments “don’t go far enough to meet the real evils of this bill.” Hickenlooper was not alone in his disgust. Milward Simpson (WY) told reporters, “They’ve just warmed it [H.R. 7152] over like hash to make it more palatable.” The meeting adjourned at 12:09 p.m. with no formal action.
Chastened by the resistance to his compromise bill by his own Republicans, Minority Leader Dirksen went public. He met with reporters immediately after the conference and delivered his first extended public statement about the issues raised by the civil rights bill. He took as his theme the statement Victor Hugo is said to have made on the night he died: “No army is stronger than an idea whose time has come.”
Dirksen continued by reciting the history of ideas that were first ridiculed and later became part of American law: the Civil Service system, women’s suffrage, the direct election of senators, pure food and drug laws, and regulation of working hours.
He also said: “Civil rights—here is an idea whose time has come. … Let editors rave at will and let states fulminate at will, but the time has come, and it can’t be stopped.”
At 9:32 a.m., Republicans met for two-and-a-half hours in what was the second of five party conference meetings. Dirksen discussed Title VII (equal employment). Neal Kennedy, Dirksen’s chief counsel, read the title line by line. The prolonged discussion yielded no formal action.
Again, Bourke Hickenlooper complained to reporters that he had “serious reservations” about the title.
After the conference, New Hampshire’s Norris Cotton went to the Senate floor to introduce an amendment limiting coverage of the act to employers with a minimum of 100 employees, as opposed to the 25-employee limit in the substitute bill.
According to Humphrey aide John Stewart:
Although the minority leader continued to talk optimistically about Republican reaction to the substitute, he had clearly run into difficulty with a number of the crucial senators, principally Hickenlooper and Cotton, who were supported by Mundt, Curtis, Hruska, Miller, and Jordan. These senators were generally opposed to any notion of an enforceable job discrimination statute. Dirksen’s advocacy of Title VII and the implication that Republicans had the obligation to support their party leader on this issue was, from their perspective, especially galling. Cotton, in fact, reported privately to Humphrey that at least nine Republicans were unwilling to support Dirksen on Title VII and were prepared to oppose cloture until major changes were made in the provision.
In meeting with the bipartisan leadership, Humphrey reported that Dirksen had encountered resistance from conservative Republicans. But since Dirksen had not proposed any further concessions to win their support, the civil rights forces could stand pat.
Dirksen talked about his work on the bill with a reporter. He said he thought he had a good bill, one that President Johnson would approve, even though it departed some from the House-passed bill. Dirksen had sold Johnson on the compromises. He told Johnson, “You can’t have the House bill,” as he recounted the conversation. “In this business you become a realist.”
Senator Norris Cotton (NH) told Dirksen that Hickenlooper, Roman Hruska, and three or four other conservative Midwesterners had decided not to back cloture on account of their continued discomfort with Title VII. This made Dirksen’s task of corralling 25 Republican senators to support cloture that much more difficult.
On Friday morning, the Republican conference met again, this time with the opportunity for senators to comment on the entire Dirksen-Mansfield substitute. The purpose of the meeting was “purely expository” and no binding agreements of any kind were requested.
When asked about the form the compromise would take when introduced to the Senate, Dirksen said he was awaiting a memorandum from the parliamentarian before deciding how best to proceed. The package might be introduced as a bill, as a substitute, or as an amendment in the nature of a substitute. Dirksen stressed the fact that it was very necessary to “button up” the whole matter so that a print of the bill could be presented to the Senate in a few days. Discussion continued until 12:15, when the meeting was adjourned until Monday morning at 9:30.
An Associated Press survey indicated that 56 senators were committed to vote for cloture in early June. In this survey, 17 senators, including all the Republicans whose support Dirksen and the bipartisan leadership sought, gave only qualified or noncommittal responses. Coming almost two weeks after the end of the negotiations on the Dirksen-Mansfield substitute, this count documented Dirksen’s difficulties in gaining the support of the disgruntled Republican conservatives led by Hickenlooper.
By now, the civil rights filibuster had become the longest in Senate history, and Hubert Humphrey was angry. “The whole procedure is disgusting,” he cried. “All that is being accomplished here is a display of adult delinquency. Any intransigent minority can run the Senate if a majority stands around with jelly for a spine.”
Humphrey blamed not the southern Democrats, “whose obstructionist tactics were to be expected,” but senators who professed to support civil rights but were opposed to cloture.
Republican senators met for a fourth and fifth time on the Dirksen-Mansfield modified bill as the Senate began its 12th week of debate. The group proceeded title by title through the bill. Title VII, the employment title, again attracted much attention with staff assigned to work out clarifying language.
Dirksen indicated that Attorney General Robert Kennedy had been keeping the House leaders generally informed of progress on the Senate side. Dirksen further stated that after talking with Mansfield they had determined their floor strategy—to introduce the Dirksen package as an amendment in the nature of a substitute. This option would leave the matter open for further amendment, thereby preserving flexibility to make additional refinements.
Dirksen also expressed the hope that a cloture petition might be filed in the following week and, in the words of the minutes, “it was his personal hope it would be approved. His conclusion was that historically and morally the legislation should be approved.” A handful of senators continued to press for more modifications, and the meeting continued in the afternoon. After nearly four hours of conversation, the conference minutes do not record any formal action. Dirksen continued to lobby 20 recalcitrant Republicans vigorously in an attempt to achieve consensus. As the fifth caucus ended late in the day, departing senators expressed optimism.
Dirksen agreed to seek a variety of minor adjustments to the Dirksen-Mansfield substitute, but he rejected all proposals for major changes, such as Cotton’s amendment to Title VII.
United Press International reported movement toward an agreement in support of the bipartisan package of civil rights amendments. The UPI quoted New York’s Jacob Javits as seeing a “real consensus” among the Republican senators, though Leverett Saltonstall of Massachusetts cautioned that senators had not been asked to “consent or dissent” during the meeting.
Dirksen called the meeting “pretty agreeable” and said he thought the session “wasn’t too bad” in terms of ginning up support for the changes.
Black leaders recognized the progress, too. Whitney Young, Executive Director of the National Urban League, telegraphed Dirksen with congratulations, reminding the senator that “the free world looks to us to supply the moral leadership which is so badly needed everywhere. Our very survival as a nation is at stake.”
In the evening, the bipartisan group of Senate staff assistants and Justice Department personnel met to see what further refinements were possible to the Dirksen-Mansfield substitute. They agreed to minor modifications but did not change the bill in a meaningful way.
According to Humphrey aide John Stewart:
At this point the negotiators were following two relevant principles of party leadership: (1) permitting individual senators to recognize their handiwork in the bill and their interests being served by its passage, and (2) striving to accommodate the interests of the widest cross section of the senatorial parties as a means of reducing the fragmentation which could severely hamper the leadership’s ability to control the parliamentary environment. This process of marginal accommodation and adjustment was to continue until the last day before the cloture vote.
For example, Humphrey and Dirksen accepted an amendment by Karl Mundt (R-SD) which exempted businesses maintained on Indian reservations from coverage under Title VII (equal employment opportunity).
The Joint Senate House Republican Leadership meeting included discussion of civil rights. Dirksen opened the subsequent press conference with a statement on Vietnam.
In response to a question, Halleck said the joint leadership had not looked over the new compromise civil rights bill the Senate would take up, although there had been some informal consultations with himself and McCulloch. “But there has been no discussion of it in the Joint Senate-House Republican Leadership except in broad general terms.” Halleck asked if being consulted “a time or two” was sufficient. He said “yes.”
Dirksen then was asked several questions about the changes he intended to propose to the bill later that day. For example:
QUESTION: Are those changes [the amendments Dirksen will offer] made as a result of your … I’m speaking of the changes made as a result of your Republican conference.
SEN. Dirksen: Well, there have been modifications, as I say, in language; paragraphs have been transposed; there have been word shadings that we had to take account of; sometimes you had to delete a phrase; sometimes you had to add a phrase, but I think as a general thing, all the four [sic] conferences that we had were extremely amiable in atmosphere. Everybody was quite affable about it, and I felt we made some real progress.
QUESTION: Did you make the changes in substance?
SEN. Dirksen: There have been some changes in substance.
Dirksen despaired of explaining all the complexities, however, and promised that he would have longer speeches about them in the future.
The ever-gracious Hubert Humphrey gave Dirksen the honor of introducing the 74-page revised version of H.R. 7152 (Amendment No. 656), the "Dirksen substitute," to the Senate.
"We have now reached the point where there must be action; and I trust that there will be action. I believe this is a salable piece of work; one that is infinitely better than what came to us from the House," Dirksen explained. "I doubt very much whether in my whole legislative lifetime any measure has received so much meticulous attention."
The amendment was offered as a “clean bill,” or as a substitute for the pending measure.
Mansfield, Humphrey, and Kuchel then praised Dirksen for his work on the bill. Richard Russell, who had led and organized the filibuster, immediately attacked the minority leader. "As one who lives in the South, as one who has never been ashamed of being a Southerner, and as one who believes that the people of the South are as good citizens as people anywhere else in the country, I resent this political foray."
The general view among civil rights advocates was that Dirksen’s amendments did not materially change, much less weaken, the bill. The Leadership Conference took an approving stance in a bulletin to member organizations: “Coverage in all titles is essentially what it was in H. R. 7152 as it passed the House, and the enforcement provisions are still intact.”
Clark MacGregor (R-MN), who helped draft H.R. 7152 as a member of the Judiciary Committee, said that Dirksen
basically agreed with us but felt he had to put his stamp of authority on a lot of little niggling amendments that really didn’t amount to much, so that the bill would come into law as a Dirksen bill and, more importantly, that he could be perceived as pouring the healing salve on the whole controversy. He did that very well. In other words, he would be perceived as making substantial changes in the bill and, on analysis, most of the amendments didn’t amount to much.
Sensing the growing restiveness of senators, Mike Mansfield told reporters: “I think, by and large, the senators have just about had enough. They’re tired of all this. You have to hit bedrock some time and have a showdown.”
Dirksen met with Humphrey at 4:00 p.m.