The Civil Rights Act of 1964 and the Republican Votes That Broke the Filibuster

Sixty-seven. Carry that number into every argument about the Civil Rights Act of 1964, because it is not a vote total. It was the number of senators needed to end a filibuster in 1964, two-thirds of the senators present and voting under the rule then in force, and it was a number the supporters of the bill could not reach without Republicans. If you remember nothing else from this post, remember that the biggest civil rights law since Reconstruction needed votes from the minority party to get a vote at all.

I say that not to start a fight, but to end a lazy one. You will hear, from partisans on both sides, that the law was a Democratic achievement, or that it was a Republican achievement, and both slogans are too small for the facts. The record is that a Democratic president, Lyndon Johnson, pushed it, a Democratic Senate majority leader and whip, Mike Mansfield and Hubert Humphrey, managed it, a Republican minority leader, Everett Dirksen, delivered the votes that made it possible, and the filibuster that tried to block it was led by Southern Democrats. Every one of those statements is true. Let me lay out the story and the numbers, and then explain why Barry Goldwater, a Republican, voted no.

The bill takes shape

President Kennedy proposed a civil rights bill in June 1963, after a year of confrontations in Birmingham and elsewhere, and after the March on Washington in August made the pressure impossible to ignore. Kennedy was assassinated in November 1963, and Johnson, in his first address to Congress as president, pressed for passage as a tribute and as a priority.

In the House, the bill was handled by a bipartisan group. Emanuel Celler, a New York Democrat, chaired the Judiciary Committee. The ranking Republican, William McCulloch of Ohio, was the indispensable partner. McCulloch insisted on changes that would make the bill acceptable to Republicans, and he took responsibility for rounding up the Republican votes. The House passed the bill on February 10, 1964, by a vote of 290 to 130. Those who like to know the breakdown by party can check the roll call on Congress.gov, and the commonly cited figures are 152 Democrats and 138 Republicans in favor, with 96 Democrats and 34 Republicans against. Do the arithmetic yourself: 152 plus 138 is 290, and 96 plus 34 is 130. In percentage terms, a larger share of House Republicans than House Democrats voted yes. The reason is regional, as we will see.

The Senate: the filibuster

The Senate was the real battleground. The bill reached the floor in March 1964, and a bloc of Southern Democrats began a filibuster that would go on for weeks. The leader of the bloc was Richard Russell of Georgia, a skilled parliamentarian who believed in the cause he was fighting for and who understood the Senate's rules better than almost anyone. Robert Byrd of West Virginia was among the most visible members of the filibuster; on June 9 and 10 he spoke for more than fourteen hours. Byrd later said he regretted his role in the fight, and that acknowledgement belongs in the record too.

Why was a filibuster so hard to beat? Under Senate Rule XXII, as it stood in 1964, cutting off debate, which is called cloture, required the votes of two-thirds of the senators present and voting. With every member in the chamber, that meant 67. No civil rights bill had ever overcome a filibuster in that way. In earlier years, the Senate had tried and failed repeatedly. The bill's supporters knew that the Northern Democrats, however sincere, could not get there alone, because the Democratic caucus also included more than twenty Southern senators who were committed to resisting. The arithmetic required Republicans, and a lot of them.

This is the part of the story that gets cut from the slogans. The Senate Republican leader, Everett Dirksen of Illinois, held the key. Dirksen was a conservative, a believer in limited government, a man who had opposed some earlier civil rights proposals on constitutional grounds. He was also a politician who read the country accurately and who believed that the bill's time had come. Over many weeks Dirksen negotiated with Humphrey and the administration over a substitute version of the bill. The changes were meaningful: they tightened some of the enforcement provisions, adjusted how the law would be applied by courts, and, by giving Dirksen and his Republicans a stake in the text, made it possible for them to vote yes.

June 10, 1964

On June 10, 1964, the Senate voted on cloture. The motion carried 71 to 29, four votes more than needed. It was the first time the Senate had ever invoked cloture on a civil rights bill. By the commonly cited breakdown, 27 of the 33 Republican senators voted for cloture, which is about 82 percent, while 44 of the 67 Democrats did, about 66 percent. Check those numbers yourself: 27 plus 44 is 71, and the remaining 29 votes were 6 Republicans and 23 Democrats. Without the Republican share, the Democrats' 44 would have fallen 23 short of the 67 needed.

Nine days later, on June 19, the Senate passed the bill 73 to 27. The commonly cited party totals are 46 Democrats and 27 Republicans for it, 21 Democrats and 6 Republicans against. Again: 46 plus 27 is 73; 21 plus 6 is 27. The House then agreed to the Senate's changes, and Johnson signed the Civil Rights Act on July 2, 1964.

I am giving you the commonly cited figures because they are widely reported and consistent, but the best habit is to look up the roll calls yourself on Congress.gov, which keeps the official tallies. If a speaker, left or right, quotes you a vote count without a source, ask for the roll call number.

How to read the numbers

The percentages invite a quick conclusion, and it is the wrong one. People say: Republicans voted for it at a higher rate, so the law was a Republican law. Or: more Democrats voted for it in absolute numbers, so it was a Democratic law. Neither inference works, because the key variable was not party. It was region.

Here is the better way to see it. In both parties, the opposition came overwhelmingly from the South. In the Senate, the Southern Democrats were nearly unanimous against the bill. By the usual count, only one Southern Democrat in the Senate voted yes. Outside the South, Democrats supported the bill in very large numbers, and Republicans supported it in even larger proportions. A map of the votes looks less like a partisan divide and more like a Southern one. That is why a Democratic president needed a Republican minority leader to finish the job: the Democratic caucus had a Southern wing large enough to block him.

This is a truth that makes people on both sides uncomfortable, which is probably why it is the truth. For Democrats, it means that the party of the New Deal also harbored the filibusterers. For Republicans, it means that the party's support came from members whose constituents were mostly in the North and the West, and not from the region where the law mattered most. The story of how those regional patterns later changed is told in The Parties Switched Story Meets the Record and What the Evidence Shows, and the earlier Republican record on civil rights, including Eisenhower's use of troops at Little Rock, is in Little Rock in 1957 and the Republican President Who Sent in the 101st Airborne.

Why Goldwater voted no

Barry Goldwater was the Republican nominee that summer, and he voted against the final bill. His vote has been used for sixty years to define him, and it deserves a straight account, neither a defense nor a prosecution.

What Goldwater said at the time was that he opposed racial discrimination and had supported earlier civil rights legislation, including the acts of 1957 and 1960. His objection was to two titles of the 1964 act. Title II barred discrimination in hotels, restaurants and other public accommodations, including privately owned ones. Title VII barred discrimination in employment by private businesses. Goldwater argued that these provisions reached beyond the powers the Constitution gives the federal government, that the Commerce Clause was being stretched past its limit, and that the proper remedy for private discrimination was to change hearts and local laws, not to give federal agents authority to supervise private businesses. In his words, in substance, he feared the act would require a "police state" to enforce. His view was shared by some scholars on the right.

The Supreme Court answered that argument within months. In Heart of Atlanta Motel v. United States, decided in December 1964, the Court upheld Title II as a valid exercise of Congress's power to regulate interstate commerce, and in Katzenbach v. McClung it upheld the same title as applied to a restaurant. The Commerce Clause's reach has been the subject of conservative argument ever since, from the 1942 case about a farmer's wheat, which you can read about in A Farmer's Wheat Crop and the Long Fight Over the Commerce Clause, to later decisions that tried to set limits.

So let me do what I always do and give you the steelman for each side, then my verdict.

The case that Goldwater was right on principle. The federal government has only enumerated powers. The Commerce Clause, read broadly, can justify almost anything. A conservative who cares about limits should worry when Congress cites it to regulate the guest policy of a local diner. A principled critic can say the Constitution did not authorize this particular law, and that the better route would have been a constitutional amendment or action under the 14th Amendment against state-sponsored discrimination.

The case that Goldwater was wrong. Discrimination in public accommodations was a daily humiliation for Black Americans, including families on road trips who could not find a motel that would take them. It was also, in much of the South, backed by state and local law and enforced by custom and intimidation. Waiting for hearts and local laws to change had been tried for a century. A constitutional objection that leaves the injustice standing is a weak consolation. And the Commerce Clause, as the Court held, did reach businesses serving interstate travelers.

My verdict: the law was right and necessary, and the principle Goldwater raised about enumerated powers is a real one that conservatives should keep asking about. Both statements hold. The best Republican answer is Dirksen's, who weighed the same constitutional concerns and decided that the injustice was real, that the Constitution gave Congress adequate power, and that he would use his influence to deliver the votes. For his story, see Everett Dirksen and the Republican votes that broke the 1964 filibuster and Republicans Delivered the Votes That Broke the 1964 Filibuster. For Goldwater's own career, read The 1964 Goldwater Campaign Lost 44 States and Won the Future.

What this means for how we argue

There are a few habits worth taking from this story.

1. Ask for the roll call. A vote count is a fact that can be checked. Congress.gov lists every vote.
2. Look at the region, not just the party. The Civil Rights Act divided Americans by region more than by party, and that matters for understanding what came next.
3. Separate the goal from the means. A person can agree with the goal of equal treatment and disagree about which branch should act. A person can also use a constitutional argument as an excuse. Our task is to tell which is which.
4. Credit people who risk something. Dirksen, McCulloch and the Republicans who voted for cloture in 1964 took on their own party's skeptics, and many of the Southern Democrats who voted yes did so at a political cost. Respect that.

For the 14th and 15th Amendments, on which Congress's civil rights power is built, see Citizenship, Equal Protection and the Ballot in the 14th and 15th Amendments. For a look at what the Senate's own rules allow a minority to do, Why the Filibuster Is the Best Friend a Minority Party Ever Had is a useful counterpoint, because the same rule that delayed this law has protected other minorities since.

The bottom line

• The Civil Rights Act of 1964 needed Republican votes. On June 10, 1964, the Senate invoked cloture 71 to 29 for the first time on a civil rights bill, and by the commonly cited count 27 of 33 Republican senators supported it. Verify the roll call on Congress.gov.
• The split was regional more than partisan. The bloc that tried to block the bill was led by Southern Democrats; Republicans like Dirksen and McCulloch supplied the votes that overcame it.
• Goldwater's no vote rested on a constitutional argument about two titles of the bill. The Supreme Court rejected that argument in Heart of Atlanta and McClung, but the question of limits on federal power remains a good one to ask.
• Be fair in both directions. Do not claim the law as a single party's achievement, and do not let anyone erase the Republicans who made it possible.
• When someone quotes a vote total, ask for the roll call number. The facts are better than the slogans.