The Passage of Power (96 page)

Falling back, however, would not be necessary. As February became March in 1949, editorialists thundered against the filibuster, and public demand for cloture rose, but somehow the votes for cloture were never there, and the focus was shifting to the bills that were soon to expire, and the Senate Majority Leader,
Scott Lucas, calling the “logjam” in Senate business intolerable, warned that “rent control would go
out the window” if civil rights was not withdrawn from the floor.

Withdrawal would be surrender: the only senators who could withdraw the bill were the liberals who had introduced it. But many of the constituents of these senators lived in northern cities. If they didn’t withdraw civil rights—and rent control therefore expired—their constituents would be the ones who were hurt. The bill was withdrawn. The South had won—again. (The southern senators knew who deserved the credit. “With less than 25
percent of the membership of the Senate, the Southerners have won one of the most notable victories in our history,”
Harry Byrd said. “The credit goes mainly, of course, to our great leader, Dick Russell.… I do not think that even
Robert E. Lee …”)

The newly elected Lyndon Johnson had been one of the senators who in 1949 sat around the oval table in Richard Russell’s office as that strategy was laid out, one of the soldiers who carried it out—one of the southern sentries stationed in relays on the Senate floor “to see,” in Russell’s instructions, “that no legislative trickery is employed to secure the passage of any of these bills” (“Relative to my
‘guard duty,’ I will do my best,” Johnson assured him), one of the speakers in the filibuster, the deliverer, on behalf of “We of the South,” of a major, thirty-five-page speech defending the right of unlimited debate that Russell called “one of the ablest I have ever heard on the subject,” and that moved southern senators to line up at Johnson’s desk to congratulate this fresh recruit to their cause.

R
ECOGNIZING THE STRATEGY
—to defeat a civil rights bill by holding other bills hostage until, to secure their release, the White House or liberal senators agreed to withdraw it—Johnson recognized something else: that if something were not done to counteract it, the strategy would succeed now, as it had succeeded not only in 1949 but at several other times in the past, because it enlisted on the side of Russell’s embattled
southern minority in the Senate a reliable ally: time.

Time had not been on the side of the great general to whom Russell was continually being compared. When Lee, on the defensive in 1865 as Russell was on the defensive now, was desperately improvising one maneuver after another
as Grant pressed him back and back, he had known in his heart that each stratagem was merely a delaying action that might postpone, but could not avert, defeat. Time was on Russell’s side, however. His battlefield was
both sides of Capitol Hill. Southern strategy in Senate and House was coordinated; explains
Strom Thurmond’s administrative assistant,
Harry Dent,
“No
one had had to say anything, they [southern representatives and southern senators] had been doing it so long. Things were understood without any words having to be spoken.” But the Senate, with its filibusters, was the
last redoubt. And in the Senate, time—the use of time, the use of delay while the days of the calendar drifted away—could, if enlisted on the side of a cause, mean victory even if majority opinion among the American people and majority opinion in the Senate itself, factors which in theory meant victory in a democracy, were united on the other side.

For Lee, there had been no time limit to the war, no point at which, if he could delay Grant until then, hold out until then, a final armistice would be declared, so that the South would not lose. But in Congress—in the Senate that was Russell’s final redoubt—there was always a time limit, always a deadline, always a point at which time would run out for supporters of civil rights if he could just hold out until then: the end of each two-year
Congress. A bill that has not been passed at the end of a Congress dies, and must start over, from scratch, in the next Congress: must be reintroduced, must negotiate again all the preliminary procedures in both houses, must be passed again by both houses. The effectiveness of the legendary Senate rules and precedents as traps in which, year after year, decade after decade, hopes for social justice were ensnared and died was in many crucial aspects a function not only of the gavel
but of the clock and the calendar. So long as a civil rights bill remained on the Senate floor, so long as the southerners were filibustering it to prevent it from coming to a vote, they could prevent any other bill from being brought to the floor—not a White House bill essential to an Administration’s program, not a bill essential to an individual senator’s political survival (for example, a bill he needed to get passed to satisfy his constituents, bills to
authorize a public works project, perhaps, or, if the project had already been authorized, to have funds appropriated for its construction, in one of the twelve appropriations bills). So long as civil rights remained on the floor, these bills would be held where they were, held hostage, imprisoned in committee or on the Calendar, until the civil rights bill was removed from the floor. Senators who might have supported civil rights, seeing time running short at the end of a session,
would become more amenable to dropping the civil rights bill (only for this session, of course, they could rationalize; it could be brought back in the next session).

A filibuster could be ended in only one of two ways. One was by a cloture vote to end debate and force a vote on the bill. That method would be difficult—very difficult. In 1963, sixty-seven votes, two-thirds of the Senate, were necessary to cut off debate so that a bill could be voted on; without such a vote a bill could not be voted on, could not be passed, could not become law. In the history
of the Senate, there had never been enough votes
to end a civil rights filibuster by cloture; since 1938 alone, there had been eleven such attempts, and every one had failed. And Johnson, in his brief time in the presidency, had already found there were still
“not
enough votes” for cloture. Or a filibuster could be ended if its sponsors voluntarily withdrew it from the floor, thereby surrendering by abandoning the bill and admitting defeat. And therefore as the end of a session grew
closer, as time grew short, it would be not merely individual senators but the White House, with its vital major measures, like the tax cut and education bills (not to mention the appropriation bills), still being held hostage, that would begin to feel pressure to obtain their release by withdrawing the civil rights bill.

And Johnson recognized something else. Not only had the strategy already been implemented, it was already working. Even while Kennedy had been in Texas, the southerners had been reinforcing their lines. One of the eight unpassed
appropriations bills, for example, was the measure that would fund the operating expenses of three departments—State, Justice and Commerce. Sent to Capitol Hill by the White House, like the other
appropriations measures, early in the year, it had been passed by the House on June 18. Then it had been referred to the Senate Appropriations Committee, which referred it in turn to a subcommittee chaired by
John McClellan of Arkansas, which referred it in turn to a subcommittee of McClellan’s subcommittee—the
“Department
of Commerce and Certain Related Agencies Subcommittee of the Subcommittee on
Departments of State, Justice and Commerce,” as this final subcommittee was familiarly known—which was chaired by
Spessard L. Holland of Florida, but with McClellan as its dominant member. McClellan was a tough, very shrewd, subtle legislator. During Johnson’s days as Leader, a young staff member had once reported back to him on negotiations with McClellan that the staffer felt had gone well;
“Unzip
your fly and take a look,” Johnson had told him. “There’s nothing there.” McClellan, he said, “just cut it off,” with a razor so sharp “you didn’t even notice it.” During the five months since June 18, McClellan had never even hinted at any connection between the State-Justice-Commerce
appropriations bill and the civil rights bill. He had simply found a number
of projects unrelated to either measure with which to occupy himself: high-profile projects—an investigation of a possible scandal in a Defense Department award of a contract for the TFX fighter plane; televised hearings about the
Mafia. “Everybody could see how busy McClellan had been,” a Washington columnist, one of the few who glimpsed the strategy, was to note. “Nobody could prove that he was holding up an
appropriations bill deliberately to slow down the legislative process and thus jam up the civil rights bill and other legislation”—like the
tax cut bill—that “he didn’t fancy.” But the subcommittee of the subcommittee had been too busy to hold even a single hearing on the bill, and when, on November 21, an angry liberal,
Joseph Clark of Pennsylvania, introduced a resolution
on the Senate floor that would have taken the bill away from Appropriations and brought it to the floor for debate, vote and, hopefully, passage, the presiding officer had asked if there
were any objections, and Richard Russell, sitting at his desk, had raised his arm, and said calmly, “I object.” The two words meant that a vote would have to be taken first, not on Clark’s resolution, but on Clark’s motion to bring the resolution to the
floor. There could be a debate on that motion—and the debate could continue as long as Russell’s southern senators wanted it to continue; there could, in other words, be a filibuster against the motion to bring the resolution to the floor. And if the filibuster was, by some chance, ended and the resolution made it to the floor, there could be a debate on the resolution itself, and then a filibuster against any attempt to bring the debate to an end and actually vote on
the bill.

The State-Justice-Commerce bill was just one of the eight appropriations bills that had not yet been released and reported to the floor by the Senate Appropriations Committee, which of course would act only after the bills had been reported back to it by its subcommittees. The Appropriations Committee was dominated by southerners and their allies, so each of the remaining bills was in the hands of a subcommittee dominated by the South, stacked deeply enough with
southerners and their allies to ensure that in the unlikely event that a revolt should be mounted against a subcommittee chairman, it would have little chance of succeeding. And even if a bill was reported out by a subcommittee, it would still have to be voted on by the full twenty-seven-member committee, and the date of the vote would be whatever the committee’s chairman,
Carl Hayden of Arizona, staunch ally of the Southern Caucus,
decided.

The stalemate on Capitol Hill was “unprecedented,” the
Congressional Quarterly
said. A new continuing resolution had been proposed to provide funds until January 31 for the agencies affected. If it was approved, “it will be the first time in memory that Congress” has “been forced to provide for such a blanket carryover,” the
Washington Post
noted. The appropriations backlog had, in fact, resulted in another situation which not even the oldest congressional observers could recall: an Administration was in the latter stages of drawing up the budget for the next fiscal year—in this case the budget that would cover the year beginning July 1, 1964, the budget about which the troika had conferred with Johnson—while Congress had not yet passed bills to make funds available for the current fiscal year.
Nevertheless, a continuing resolution seemed the only choice; Russell’s troops weren’t budging, and neither were Republican conservatives, as they were pleased with the results of the delay. The GOP’s Mundt (who sat on no fewer than six of the twelve Senate appropriations subcommittees) said that since
“already
too much money is being spent, and spent too rapidly, I am perfectly content to let the appropriations bills wait
until next March.”

And appropriations were just some of the bills that Congress had not sent on to the White House, and the list ran on beyond major measures like Kennedy’s education bill. Bills before Russell’s own Armed Services Committee had not moved at the anticipated pace; some were not moving at all. Bills were not the only problem. Nominations had been made a part of the strategy; the hearings on Kennedy nominees, for example, were droning on endlessly.

T
HE MOST IMPORTANT HOSTAGE
being held to stop the civil rights bill was of course the tax cut bill.

Kennedy’s pleas for passage of the tax legislation, now in its eleventh month before Congress, had been reiterated shortly before his departure for Texas.
“This
nation urgently needs [its] earliest possible passage,” he had said on November 16. “Clearly no single step can be more important … as insurance against recession.… This is a good bill, and we need it now.” In addition to
Harry Byrd’s other reasons for holding the tax bill in his Finance Committee, however, another reason was the civil rights bill.

No one understood better than he the horrific consequences that would follow the enactment of such a bill. The
Brown
decision had been bad enough. When a federal judge had issued a ruling to enforce it in Byrd’s native
Virginia, the senator had pointed out the dangers. Six-year-old children of both races were going to be “assembled in little huts before the bus comes, and the bus
will then be packed like sardines,” he said—and everyone knew what would come of that: “What our people most fear is that by this close intimate contact future generations will intermarry.” Intermarriage! Miscegenation!—the
“mongrel
race” of which Dick Russell warned. Byrd had called for
“massive
resistance by the white people of this country” to all court rulings
which might foster integration.

And now there had come upon the South this new civil rights bill. He was ready to do his part to stop it. He didn’t let the fact that Kennedy’s decision in June to send civil rights to Capitol Hill had played into the South’s hands make its way into Washington or New York newspapers, but talking that June to a
Richmond Times-Dispatch
reporter who was an old friend, he let that fact slip, saying, as the
reporter summarized his views, that
“the
new civil rights legislation from President Kennedy would bring on a Senate filibuster that … would probably delay hearings on the tax bill before the Senate Finance Committee.” The tax bill hearings, in other words, would not be brought to an end; they would still be going on—the bill was not going to be freed from the Finance Committee—until the civil rights bill
had been disposed of, either by being withdrawn or by being sufficiently weakened. That had been back in June. It was five months later now. The civil rights bill hadn’t been disposed of—and Byrd was still holding his endless hearings on the tax bill, implementing Russell’s strategy of delaying Administration bills in the Senate so that they would still be available as hostages against civil rights when the rights bill came over from the House. Kennedy had handed
him a hostage, an extremely valuable hostage, and he was holding it fast. If the President wanted his tax cut bill, he was going to have to abandon or gut his civil rights bill. Other southern committee and subcommittee chairmen were doing their part, holding their own hostages. If you don’t get your other bills “locked and key,” Lyndon Johnson had warned, these other bills would be stalled. His advice had not been heeded. And the other bills were stalled.