“It succeeded legislatively because the time was sufficient for the case to be made in opposition fully and completely, and to the satisfaction of those that were opposed.””
Charles Ferris reflects on the importance of the Senate’s cloture rule and the lengthy Senate debate over the civil rights bill in the spring of 1964.
FERRIS: So both sides made their case, and the Senate proceedings were reported daily on television around the country. Roger Mudd reported several times each day with a running clock of the cumulative numbers of hours that the debate had consumed. There were no significant modifications proposed to the House bill, no compromise language seemed possible with the fervent advocates or the diehard opponents. It was the first piece of major legislation that was covered daily on television. The details and dynamic of the debate led the daily news for three months. The whole country followed these reports of the debate as if the proceedings were televised (and this was fifteen years before TV was permitted in Congress). It took away the possibility of a backroom compromise. Transparency had come to Capitol Hill because of the coverage by the media. It was futile to “work a deal” because any modification that would satisfy the constituencies on one side would be too drastic a compromise for the other. It was better for the Southern Senators to be beaten than to capitulate by compromise. Anything less than an up or down vote on the bill would be perceived as a sell out by both sides on the issue.
There were discussions with many Republican Senators in Dirksen’s office over the months and minor modifications of language agreed upon, all of which were nuances that Justice found acceptable. It was important that these backroom sessions took place and took time. Senator Dirksen needed to show his caucus that they were having an impact. It was more the perception of impact than significant modification of the bill. As time passed, the work at the grassroots level continued with sustained intensity. The rhythms were coming together and they did when cloture was filed.
Before the 1964 Civil Rights bill’s enactment, I was an opponent of the two-thirds cloture rule. My reaction was that it was wrong–undemocratic. After the ‘64 Civil Rights bill, I opposed any change in the cloture rule. I think the ‘64 Civil Rights bill was as strong substantively as it was and was respected as legitimately enacted law because it required a two-thirds vote in the Senate before you could pass it. When you had legislation that would have this much impact especially directed towards one part of the country, where the intensity against change was particularly strong, then the majority should be required to stop and listen to the minority who ask, “Do you really want to do it? Because this is what is going to be the impact in our states.” That extra burden of the two-thirds vote prevents a transitory majority from being at best whimsical. I think such a delay is right. That strengthens the legislation, and strengthens the institution and establishes a legitimacy to the law especially in those areas of the country most affected.
Jumping forty years ahead, the cloture process has been greatly abused, because cloture is filed for very narrow and relatively minor issues. Back then the procedure was used very sparingly. It was not then considered a personal procedural option. I think its overuse as a procedure is directly related to the reduced reverence Senators have for the Senate as an institution.
So the heavier burden of persuasion imposed by the rarely used procedure of requiring a two-thirds vote generated the national media attention, which put the spotlight on the Senate deliberations, which in effect brought about a transparency to the Senate and virtually eliminated the secret backroom compromise. The result was that the final legislation contained in a Title II that was not diminished, a Title VI that was not changed, a Title VII that was not impacted. The bill was as strong as the bill that passed the House. There were minor modifications, but nothing of substantive significance. It succeeded legislatively because the time was sufficient for the case to be made in opposition fully and completely, and to the satisfaction of those that were opposed, so that when they went back home, their constituents knew that they made every argument against that bill that could be made, and made the majority stop and think before anything was done. That was a great lesson–a great lesson for me when I was young and impetuous, and didn’t have much patience. My attitude then was “If it’s right, you should just do it!” But it was a great lesson in how the Senate as an institution can work at its best.
