Federal Law Review
|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Federal Law Review |
|
Robert Orr[*]
This is the third volume of Robert Caro's biography of Lyndon Johnson. It focuses on Johnson's time as a senator for Texas, and won the Pulitzer Prize in 2003. On any measure this work is a great achievement.
It may seem odd to review such a biography in a law journal. Robert Caro is not a lawyer. He was a journalist, but turned to writing political biography, first of Robert Moses,[1] the powerful New York City government official, and now of Lyndon Johnson.[2] Johnson was not a lawyer. He was, surprisingly but very significantly, a school teacher, before he became involved in politics. But it is sometimes too easy to forget that in a democracy, most laws are not made by professional lawyers; they are made by persons directly elected by the people. And as such Lyndon Johnson was a very significant law maker, in particular in the Senate, and of course afterwards as President.[3]
The aspect of this book which makes it relevant to public lawyers is that to a significant extent it is a detailed analysis of the operation of a key constitutional structure in the world of political power. It provides considerable insight into one aspect of the American constitutional arrangements, the Senate, the constitutional thinking behind this arrangement, how this arrangement shapes political activity, and how the constitutional arrangements are in turn shaped by that political activity. In particular, the book focuses on law making. It is seldom that this is a central theme of legal, historical or biographical writings. In Australia, there has been a range of recent political biography and autobiography, with quite a few works by or about senators, but none to my knowledge has dwelt on the law making aspect of Senate life. Standard constitutional texts often, and rightly, focus on the theory of the Senate, and moments of crisis and dispute, rather than its regular operation in the hands of politicians.[4] The Australian Constitution itself notoriously obscures rather than informs about some key constitutional operations.
Not only does this work focus on the meeting of constitutional principles and political reality, it demonstrates how fascinating this meeting is. It was said that Caro's biography of Robert Moses took matters like 'bond issues, municipal legislation, machine politics, and highway construction, and brought them vividly to life'.[5] In this work Caro does the same for Senate committee inquiries, legislative development and voting processes. But before considering this further, I make a few preliminary comments.
This book is in no measure a broad overview of Lyndon Johnson's political life. In some aspects there is an intense focus on the details. This is partly a result of Caro's concern as a former political journalist for the inner mechanics of key events, exactly who said what to whom and where, and not just the outcome of the events. This also mirrors the lawyer's concern for the importance of the actual words of legislative provisions, and the means of legislative passage. In my view Caro is right to think that where Johnson parked his car, where his various offices were, how he stood when he spoke to people and where he sat in the Senate, were all important to what he did. Caro is also right to think that where a legal policy idea comes from, who does the first draft of a provision, the addition of an adjective to add emphasis, and the exception to assuage a particular interest can all be significant aspects of the law making process. Lawyers who work on legislative development within government are often particularly involved with and responsible for these details. For historians and lawyers, it is true that knowledge of detail does not always bring insight and understanding, and Caro sometimes does not use the details to pursue these greater goals. But there can be no doubt about the very fine grasp of detail in this work.
A key element of Caro's research was personal interviews, interviews which in many cases became conversations spreading over years. Such interviews clearly enabled Caro to get behind the written sources to the spoken words, the personalities and the places so crucial to political life.[6] This was particularly important since Johnson's outstanding political skills were very much in personal and small group conversation. They were not the big set piece speech or formal written document. His power sprang from these skills and was constricted by them. At any rate, as Caro notes, formal records, even of the American Senate in the 1950s, are surprisingly unreliable. He states that one area in which the Senate Record is particularly damaging to historical accuracy is that of civil rights, the political issue which dominates this book. During interviews people would vividly recall venomous racist remarks on the floor of the Senate, but time and again Caro went to the Record for the relevant date and no such remark, or even an approximate version, was there.[7]
The concern for detail, and reliance on personal interviews as well as the written records, enables the work to convey a strong sense of place and personality. This is illustrated in a telling episode towards the end of the book. Caro describes how Philip and Katharine Graham, publishers of the influential Washington Post, finally accepted Lyndon Johnson's open and insistent invitation to visit the Johnson Ranch in Texas. Caro writes that 'it was a typical Johnson Ranch weekend: the ritual visits to the "birthplace", to the little family graveyard on the riverbank, and to the stone barn in Johnson City'.[8] There was also the invariable insistence that the guests shoot a deer, whether they wanted to or not. It is clear that travelling to the genuinely harsh landscape in which Johnson had been raised, hearing his family's story and spending time with him there, had a significant impact on the Grahams.[9] They became friends and indeed strong supporters of Johnson.
But the place which most dominates this third volume of Robert Caro's biography of Johnson is the Senate itself. Johnson was elected to the Senate in 1948 after a very close fight for the Democratic Party nomination, so close indeed that there are significant doubts about the result,[10] and this gave rise to his nickname 'Landslide' Johnson. He had previously served in the House of Representatives since 1937. By the time he ran as Vice-Presidential candidate with John Kennedy, Johnson had become one of the most powerful political figures in America.
The Senate is of course a physical place. The endpapers of the book contain pictures of the empty chamber, cavernous and gloomy. The semicircular arrangement of school-like desks suggests a collegiate, rather than confrontational style, and a strong sense of history. But there are related areas where much of the work of the Senate takes place: the foyer to the chamber, senators' offices, committee rooms, and even car parks. Because Caro focuses so much on what Johnson actually did, how power was actually collected and exercised, these other liminal spaces are shown to be important in themselves, and not just as paths on the way to the chamber.
But the Senate is of course not just a place. It is a constitutional institution and as such it is pivotal to this book. One of the strengths of Caro's work is that the Senate as a place and institution is not treated just as a backdrop for the political brilliance of Johnson, though it leaves no doubt about that brilliance. Caro has used this period of Johnson's life to write a book which takes in much broader concerns.
Very early on in the work, Caro gives considerable attention to the constitutional development of the American Senate. The 'Great Compromise' at Philadelphia created a new type of institution. Before then, second chambers had represented various groups in society: aristocrats, the church, the towns.[11] They had been the more conservative chamber. In America the Senate was established to represent the federating, pre-existing colonies become States, an outstanding example of constitutional development taking an existing political institution, and remodelling it to meet a new need. But the founders' policy was none-the-less to create a consciously conservative chamber. As Caro writes:[12]
Nor was it only the power of the executive of which the Framers were wary. These creators of a government of the people feared not only the people's rulers but the people themselves, the people in their numbers, the people in their passions, what the Founding Father Edmund Randolph called "the turbulence and follies of democracy".
The desire for an inherently conservative chamber led the founders to ensure that the Senate was 'armored … against the people'.[13] Because this structural conservatism becomes such a major theme of the book, Caro does I think overstate the position a little. As is absolutely clear by the end of the work, acts which emerge from law making bodies on contested issues are often highly worked creations. Of necessity they are a compromise which reflects the starting position of few. This is no less so with constitutions themselves, and it is this which gives rise to the debate about whether identifying the policy behind the words is an act of discovery, or an act of creativity. The drafting of the United States Constitution was contested on a range of issues. Having said this, there is no doubt that a 'cooling' Senate was important to a significant number of key drafters.
As to the success of their constitutional policy of creating a conservative body, the book is a stark testament. Much of the first 100 pages is a summary of the history of the Senate from its creation until 1948, and it emphasises this theme. The Senate successfully and appropriately cooled the proposals by President Franklin Roosevelt to expand the numbers of the Supreme Court. But the Senate also resisted all attempts to get it to ratify the Treaty establishing the League of Nations after the First World War, a conservatism which played a part in the failure of that organisation, and the descent into the Second World War. It is also a major theme which Caro expounds throughout the book's discussion of the senatorship of Lyndon Johnson. The Senate successfully and appropriately cooled the challenge by General Douglas MacArthur to the authority of the President Harry Truman. But the Senate also resisted all attempts to make civil rights laws, notwithstanding the stark injustices and the growing support for remedies.
Caro does not look just at the broad constitutional concept of a Senate which resists popular movements and cools debate, he also gets inside the detail of the constitutional arrangements. The desire of many of the American founders for a chamber which was a brake on popular pressures was reflected in the size, powers and processes of the Senate, and the method of choosing, the term, and the age of its senators. These specific provisions also inform Caro's work.
Before looking at these, it is interesting to note that the Australian Senate was generally not proposed as such a consciously conservative body.[14] It was to be another chamber, the States' chamber, in particular a chamber which would provide some protection for the smaller States, a chamber of review, but not necessarily a chamber which by design 'cooled the follies of democracy'. It was from the beginning an elected body. Interestingly however, it was developed with some of the attributes which the American founders hoped would promote that policy, and which did do so.
Of course with the constitutional 'purpose' of the Senate is another major constitutional issue, its relationship with other parts of the legislature, and the executive. The American approach has become a powerful model, and it colours the role of the Senate discussed in this book, though it is not explicitly articulated or investigated there. In America, the executive is almost wholly outside Congress, and there is a clear separation between the two. There are some links, and a checking of one by the other. The President outside of Congress has an important role in the legislative process, in particular in assenting to legislation. Also, the Vice President is President of the Senate, though with only a casting vote.[15] This arrangement allows each State full representation.[16] In Caro's work, Richard Nixon as Vice President makes some cameo appearances in an attempt to promote the executive's agenda in the Senate.[17] But generally the work demonstrates the weakness of this link, and the stark separation between the executive and Congress. Within Congress, the two houses have almost equal powers.
The competing model is of course the British, where the executive is formed in the lower House, and to some extent therefore controls it, and importantly is directly accountable to it. This structure creates very different relationships between the houses, and between the houses and the executive, with no real separation.[18]
The Australian model is by design a hybrid, and this is both its strength and its weakness.[19] It sits between the American model, where the Senate is the equal of the House of Representatives and both are elected, but with the elected President outside of Congress, and the British model where the House of Lords by convention and law is less powerful than the House of Commons, in significant part because this is where the executive is formed, but also because the House of Lords has not, to date, been an elected body. The relationship between the Senate, the House of Representatives and the executive remains a key issue within the Australian system. Section 53 of the Australian Constitution sets out the limits on the powers of the Senate, but in a way which to some extent lacks clarity and precision.[20] Deeper constitutional principles are also clearly relevant to the relationship. Section 57 provides a mechanism for resolving deadlocks, but on any view it is a detailed and slow one.[21] This relationship was the cause of our most major constitutional crisis. It is the source of ongoing tension. In 2003 the Prime Minister released a discussion paper on section 57 of the Constitution.[22] The fact that as a result of the 2004 election the government has gained control of the Senate has prompted further debate about its role.
Tension, uncertainty and debate about the relationship of the Senate to the House of Representatives is an issue which is almost completely absent from Caro's description of the workings of American system in the 1950s. For the American Senate, it is as if the House is another country. Occasionally emissaries come from there, and conferences are held to make some effort to resolve law making differences,[23] but there is little sense of any Senate regard for or deference to the House.
Article I, section 3 (1) of the United States Constitution now provides, with the original words in square brackets:
The Senate of the United States shall be composed of two Senators from each State, [chosen by the Legislature thereof,] for six Years; and each Senator shall have one Vote.
Some significant points can be noted about this provision.
First, the framers consciously kept the number of senators small. At two senators per State the Senate began life as a very small 26 member chamber. By the time Lyndon Johnson arrived there were 96 members. The number was increased during Johnson's time in the Senate by the creation of the State of Alaska in 1958 and the State of Hawaii in 1959.[24] Johnson was a major force for the changes, building within the Senate majority support for these important but controversial constitutional developments. Today there are still only 100 senators.
The size of chambers may seem a lower order issue, if an issue at all, of constitutional modelling. But as this work demonstrates, this small size is a major part of the structural arrangements. Johnson had not shone in the House of Representatives. With 435 members it was, as he admitted, too big for him. Caro notes that everything 'in the House of Representatives was done en masse, from the swearing in by the Speaker at the opening of Congress … to committee meetings …; on the House Armed Services Committee Johnson had been one of thirty-six members …'.[25]
Johnson's political skills needed a smaller stage. 'Lyndon was the greatest salesman one on one who ever lived' Caro quotes George R Brown as stating.[26] This was based on two major attributes. First he could read people. He 'seemed to sense each man's individual price and the commodity he preferred as coin' Bobby Baker said.[27] Secondly, he himself was very difficult to read. He was a chameleon; 'liberals thought he was a liberal, conservatives that he was a conservative — it worked best if there was no-one present from the other side'.[28] The book demonstrates these skills with many examples, and they were very powerful in the small Senate where personal relationships were pivotal. In particular, Johnson was outstanding at cultivating those with political power, and using them to his advantage.
The Australian Senate is also comparatively small, indeed the Constitution itself provides that the number of members of the House of Representatives shall be 'as nearly as practicable, twice the number of the senators'.[29] Worldwide, second chambers are generally smaller than first chambers.[30] The outstanding exception is of course the House of Lords. When it broke up in the summer of 1999 it comprised 1,289 members, 759 of them hereditary peers and 477 life peers. Its members also included 26 bishops and 27 law lords.[31] This was double the House of Commons. There is a very significant reform process taking place in relation to the House of Lords, which has seen a reduction in its size. The Constitution Unit at University College London produces many publications on British constitutional reform, of which there has been an enormous amount recently. In particular Meg Russell has written an excellent book, Reforming the House of Lords, which looks at the issues facing the restructure of the House of Lords in the context of international thinking and practice in relation to second chambers.[32] She notes that generally second chambers have about 60 per cent of the number of members of first chambers.[33]
Caro's description of the American Senate certainly supports the view that the smaller size of second chambers is one factor which promotes in those chambers a greater significance for individual members and their points of view, and for personal relationships between members, even of differing parties. It is also sometimes said that smaller second chambers have a tendency to a less adversarial approach, but the work provides much less support for this proposition. It is true that alliances shifted, and that senators with apparently very different approaches, either within a party, like Johnson and Hubert Humphrey, or across parties, worked together to build consensus positions. But in key debates Caro shows that the fights were bitter and intense.
The original American model did not have senators elected by the people. The words in square brackets in the quote above were deleted by the 17th Amendment in 1913.[34] The second volume of Caro's biography, Means of Ascent, is a detailed examination of one Senate election, Johnson's first election to the Senate.[35]
American elections for senators are on a 'first past the post' basis. The two senators from each State are not elected at the same time. Senate elections are therefore for single member, State wide, electorates. The elections do not appear to have ever involved proportional representation, or even preferential (or alternative) voting, which oddly were, and remain, generally beyond the American concept of democracy. The book contains a range of examples where practice has become elevated to a quasi-constitutional status, with little support in the Constitution itself. As Caro points out this is often an entrenchment of political power, rather than an expression of underlying principle. The general American reluctance to consider other voting systems may be one example of this elevation of practice to principle.
The vast majority of American senators had and have party affiliations. But the weakness of party discipline within the American political system in general, and particularly in the Senate, is astonishing to an Australian reader. Johnson became Democrat leader in the Senate in 1953, and this factor in particular made his task challenging, though as the book describes, not impossible.
One of Lyndon Johnson's great political skills was that he could ‘count’. This was not an art he used only in 'behind the scenes' party rooms, which is often the Australian experience. It was an art which was essential on the Senate floor itself. As Caro notes, predicting votes of even party members was very difficult, and often subject to the distortions of sentiment. A person convinced of an argument feels that others must also be convinced. This was not Johnson's approach; in his family and early life he had seen firsthand the costs of wishful thinking. An ability to count was based on the need for good intelligence. To a staff member who, after talking with a senator said he thought he knew which way the senator was going to vote, Johnson snarled, expletive deleted, 'What the … good is thinking to me? Thinking isn't good enough. … I need to know'.[36] As Humphrey also states, Johnson however seemed to know everything. 'If you liked politics, it was like sitting at the feet of a giant' he recalled.[37] It was this key political skill, along with his ability to persuade, and his ability to identify and implement key structural and procedural changes, which enabled Johnson to increase the power of the party, and himself as leader of the party, in the Senate.
Caro's description of the work of the American Senate with generally little party control is sobering. This enabled senators to unashamedly put State interests, often sectional State interests, at times even personal interests, well before the national interest, and to cloak this action with a veneer of constitutional principle. As Caro tellingly describes, the Senate was often crippled by such an approach, leaving the nation unable to deal with pressing concerns.
The Australian Constitution has always provided that the Senate 'shall be composed of senators for each State, directly chosen by the people of the State …'.[38] The most significant change to the Australian Senate was the introduction in 1948 of proportional representation. This reform had the intended effect of smoothing out election results, and the not necessarily intended effect of making it easier for smaller parties to obtain Senate seats. The latter has been a major feature of the Senate since the change.[39] Party control in the Australian Senate is much stronger than in America. The need 'to count' in the Australian Senate has arisen in particular between 1981 and 2005 when the government has not had a majority of senators, and minor political parties have held the balance of power. Australia's voting system for senators is not entrenched in the Constitution, though it is sometimes elevated to a quasi-constitutional status, notwithstanding that, especially when combined with the vastly divergent voting populations of the States, it can produce some curious results. The most common method for selecting second chambers is now direct election, though the form of election is generally different to the first chamber. Interestingly, Australia is one of the few countries where the first house has a single member electorate system, and the upper house a multi-member electorate, proportional system; a number of other countries have the reverse.[40]
The term of American senators is a long one, six years. The three elements of the American legislative process therefore have staggered cycles: the representatives are elected every two years; the President every four; senators every six. This implemented the founders' view that the Senate should be the body least subject to membership change. This policy is further reinforced by the fact that many senators serve many terms. In 1949 when Johnson came to the Senate, ten senators were in their fourth or fifth term.[41] The United States Constitution also provides that a senator must be 30 years old, and nine years a citizen.[42]
This meant that the Senate's membership at the time of Johnson was old and growing older. In 1940, the average age of senators was 60, and 13 were in their seventies or eighties.[43] Caro, following on from other commentators like Allen Drury, notes some telling stories about the abilities of such elderly senators, once great men who drifted into senility whilst still exercising significant law making functions. One day in 1945, 77 year old Kenneth McKellar of Tennessee fainted during a speech, and Drury observed the anxiety on other senators' faces. The '"ghost of Death" is "never far from the mind of the Senate"' he noted.[44] Strom Thurmond plays a minor role in the book, as a senator from South Carolina, and on 5 December 2002 he turned 100 years old, still a senator, though he retired a month later. The impact of an old and aging Senate was even further reinforced by the fact that seniority governed formal and informal Senate business. New senators were expected to say and do little, in particular those who came with big reputations. Those who had been there the longest had by far the greatest power, in particular the Senate Committee Chairs.
The term of Australian senators is also 6 years. The Commonwealth Electoral Act 1918 (Cth) currently contains a minimum age of 18.[45] Some Australians have been in the Senate a very long time, but a number of factors, in particular the strength of the party system, have ensured that length of service does not of itself bring power. Some evidence suggests that the Australian Senate has a much more diverse membership than the American, in particular in relation to age, but also in relation to other factors.[46] It is usual for members of upper houses to serve longer terms and have higher age qualifications than members of lower houses.[47]
The legislative powers of the American Senate itself are limited only to a minor extent. Article I, section 7(1) of the United States Constitution provides:
All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.
There are no other specific limitations on Senate law making, and indeed the Constitution gives the Senate extra functions and powers, making it a rare example of an upper house which is more powerful than its lower house.[48] This book confirms the power of the American Senate. As noted above, there is very little concept of deference to the House in relation to law making. This would be very different if the President were made there. The equivalent provision is s 53 of the Australian Constitution, which is clearly more substantive, and more complex, and sits within very different constitutional architecture. Like the Australian Senate, the majority of second chambers have lesser powers than the first. The Australian Senate's powers have been classified as 'moderately asymmetrical' in comparison with the House's powers. There are a range of chambers which are 'extremely asymmetrical', and the powers of the second house are significantly less than the first.[49]
The extra powers of the American Senate relate in particular to checks on the executive. The President has power 'by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur'.[50] The American Senate's role in relation to treaties has, as Caro discusses, changed the face of the 20th century. The Australian Senate has no such additional constitutional powers, although the Parliament has developed a review role in treaty making.[51]
The provision goes on to state that the President 'shall nominate, and by and with the Advice and Consent of the Senate, shall appoint' a range of officials including ambassadors, judges of the Supreme Court and other officers. Again, the Australian Senate has no such constitutional role, although it has an active committee system.[52] The chapters devoted to Johnson's confrontation with Leland Olds, the Chairman of the Federal Power Commission, are amongst the most chilling in the book, especially for readers who are public servants. Olds was up for reappointment in 1949, which the Democratic President Truman was keen to do. His performance, according to Caro, had been exemplary. But as a product of the New Deal, Olds was not popular with industry interests, and Lyndon Johnson set out to prove how useful he could be to those interests. As Caro notes, a quality which Johnson displayed throughout his political life 'was an utter ruthlessness in destroying obstacles' in his path.[53] Olds felt the full weight of this ruthlessness, and combined with Johnson's political and strategic skills, and his ability to marshal resources in a cause, they destroyed him. Amongst the constitutional principles of 'accountability', and 'checks and balances', there is a need to recognise the use of such mechanisms for purely political purposes.
Importantly, the American Senate is able to manage its own affairs. Section 5(2) of Article I of the United States Constitution states somewhat innocuously that each House may 'determine the Rules of its Proceedings …'. It is this power, rather than the broader constitutional arrangements, which was pivotal to the role of the Senate in modern America. The provisions in sections 49 and 50 of the Australian Constitution are more clearly linked to the powers of the House of Commons, but they also provide a general power to make rules with respect to 'the order and conduct' of business and proceedings.[54]
There are two elements of the American Senate's procedural arrangements which are key to this work. First, when Johnson arrived in the Senate, the formal leadership positions were very weak. He asked the Legislative Reference Service of the Library of Congress to list the powers of party floor leaders; the list contained one item, priority of recognition by the Chair.[55] There was a probability of failure and humiliation for anyone who took up a Senate party leadership position. There were many examples of this before and during Johnson's time there. One of the most obvious was Alben Barkley, a Democrat from Kentucky who was leader from 1937, with the largest majority in the Senate's history, but who had hardly been elected when he lost a routine motion to adjourn, and in the next year managed to round up only 4 Democrat votes for an Administration tax Bill.[56] The Senate party leader had nothing to promise other senators, nothing to cajole them with.[57]
Real power within the Senate resided elsewhere. In particular in the Committee Chairs. Chairmanship of committees was based on length of tenure. This system enabled southern senators, who were there for a very long time and therefore accumulated seniority, to monopolise the seats on the more powerful committees. The power of committee chairs was evidenced even in the law making process. They decided when a Bill moved out of the Committee and was presented to the Senate, and they managed its fate there.
When Lyndon Johnson became leader of the Democrats in the Senate in January 1953 he was 44 years old. He was the youngest senator in history to be elected leader by quite a margin.[58] The only other senator to be elected leader in their first term was John Kern, the first leader. Johnson's political skills enabled him to gain this position, with some luck and the traditional weakness of the position helping him. Even more dramatic than this achievement was that Johnson was able to gain significantly greater power for the position, and himself as the occupant, than was traditionally the case, and thereby to dilute the power of the Committee Chairs. By the time of the 1957 Civil Rights Bill, it was Johnson as Senate majority leader who decided when it reached the floor of the Senate, and managed its passage.
But the second and pre-eminent example of procedural power was the filibuster. As Caro notes this was not so much a rule, not even an informal one, but rather the absence of a rule. The 'missing rule was one that would force senators to stop talking about a bill' and enable a vote on it.[59] Caro states that such a rule had been adopted by the American House of Representatives in 1789, later coupled with a maximum time members could hold the floor.[60] Time limits on speeches in the Australian House of Representatives were first adopted in 1912[61] and procedures for a guillotine of debate on a Bill in 1918.[62] In the Australian Senate, time limits were introduced in 1919,[63] and the general limits are now found in Senate Standing Order 189. Standing Order 142 in relation to urgent Bills provides a 'guillotine' procedure. This was first introduced in 1926, although before then debates were sometimes curtailed by the application of the 'closure', that is a motion that the question now be put.[64]
Caro states that there had originally been a rule of the American Senate, but it was omitted in 1806. The points I have noted above about the constitutional role of the Senate in some sense supported this removal: the Senate was small in number, and was designed to protect the minority of States from the will of the majority. Indeed as Caro notes from 1806 to 1917 the position protected even one State, indeed even one senator, since the only way a senator could be made to stop talking so that a vote could be taken was if there was unanimous consent that they do so. In 1917 the Senate passed Rule 22 permitting debate upon a pending measure to be closed off when, after a petition for such 'cloture' was presented by 16 senators, it was approved by two thirds of the senators present and voting.[65]
It was these essentially procedural arrangements which enabled the Senate to maintain into the 1950s an implacable, conservative position in relation to civil rights. As William S White wrote, and Caro confirms, the Senate '"was the South's unending revenge upon the North for Gettysburg"'.[66] The southern Democrats controlled the Senate through Committee Chairs and procedural rules, in particular the cloture rule, and therefore the Senate refused to pass, often even to vote on, civil rights legislation. They sought to clothe these procedural arrangements with a quasi-constitutional, even theological, status. Caro writes:[67]
Liberals, and, most infuriatingly, that liberal Washington press corps, might criticize the filibuster, but the southern senators worshiped it: it was their defense against that despised majority. Any threat to the filibuster they regarded as a threat to the rights of man. To a request to impose cloture, the stately Walter George solemnly intoned: 'We are called upon to go Nazi'. 'It was cloture that crucified Christ on the cross' Tydings cried.
Lyndon Johnson, as a southern Democrat, supported the traditional southern Democrat position, in particular in its application to civil rights. In a 20 year voting record from 1937 to 1957 Johnson had never supported civil rights legislation.[68] As Caro demonstrates, he was not merely a member of the Senate's anti civil rights bloc, he was an active member, and one who had used that base to assemble his own power. But as Caro also demonstrates, Johnson changed. In part the change was the result of political movements within American society. In part the change was due to Johnson's political ambition, which led him to recognise that any prospect of being a serious Presidential contender rested on support from the north, which demanded civil rights. To some extent the change was a recognition by Johnson of his own history, and that of his family, and in particular his time as a teacher in a poor Texan school. It was when these personal experiences combined with broader social movements and self-interest that Johnson acted.
The book focuses, especially in its second half, on the making of the Civil Rights Act 1957. This was a key event for the Senate, a key event for Lyndon Johnson, and a passage which foreshadowed future developments for both.
It was not a major event in the civil rights movement. Caro does not suggest otherwise. He writes as early as the introduction that the 'Act of 1957 made only a meagre advance toward social justice, and it is all but forgotten today'.[69] But the importance of legislation cannot be judged simply by its legal effect. As Caro notes, the process of its passage was a marker of underlying shifts.
After the American Civil War, the 14th Amendment to the Constitution confirmed citizenship to all persons 'born or naturalized in the United States'. The 15th Amendment, made in 1870, provided specifically that the right of citizens 'to vote shall not be denied or abridged … on account of race, color, or previous condition of servitude'. Federal laws reinforced this right. However, the extension of the franchise was strongly resisted in the south. Physical resistance, Supreme Court decisions, the removal of federal troops, and gerrymandering led in the 1890s to the enactment in the south of laws to entrench white political supremacy including poll taxes, that is a tax on voting (prohibited since 1964 by the 24th Amendment), literacy tests, and qualification and disqualification provisions which were designed to exclude African American citizens, and often relied on the discretion of State officials.[70] Caro highlights throughout the book some of the more flagrant abuses. He begins with the attempt in August 1957 of three people to register to vote in Alabama at the Barbour County Courthouse, and their humiliation in being required to answer general knowledge questions, which all of them had to get all right before they could obtain applications to register to vote.[71] But despite the groundswell of condemnation of such practices, time and again attempts to pass federal legislation to remedy the situation failed in the Senate. There was a long time between the policy idea and its fruition in legislative form.
This long period of fruition, continuing political controversy, the Senate's power, and the power it gave to individual senators through its procedural rules, meant that the development and passage of the 1957 Bill was difficult, politically and legally. The Act itself bears some of the marks of a hard fought compromise. In my experience there are a range of indicia of legislative provisions which are compromises resulting from difficult negotiations. Sometimes these provisions look important, but their actual meaning is vague, much like a Leonard Cohen song. The third paragraph of s 53 of the Australian Constitution and its reference to any 'proposed charge or burden on the people' is an example. Also, the use of adjectives is sometimes used to obscure rather than clarify; the 'reasonable' in s 100 of the Australian Constitution is an example. Thirdly, hard fought compromises often include references to things which seem to be remote and not directly related to the principal provisions.
Caro does not set out the actual text of the Act in the book, which is something of a shame for readers who are lawyers. Much of the Act was concerned with establishment of a Commission on Civil Rights, and provision for an Assistant Attorney-General. Section 131(3) contained the key provision which stated in part:
(b) No person, whether acting under color of law or otherwise, shall intimidate, threaten, coerce, or attempt to intimidate, threaten or coerce any other person for the purpose of interfering with the right of such other person to vote or to vote as he may choose … .
This is relatively clear and lacking in adjectival rhetoric. But it is linked interestingly with other matters. The original proposed Bill dealt with a range of human rights issues. Johnson recognised that in this form it was headed for another failure. As Caro notes he had the lawmaker's gift of identifying from a panorama of proposed policy and laws, the one that could succeed, and in doing so achieve a larger purpose.[72] Johnson focussed on voting rights for a number of reasons. First, because the right to vote was to him the most valuable, and would lead to the others. A change in the officials who wrote the laws would in due course change the laws themselves. Secondly, one of Johnson's great political skills was listening, and one of his great political insights was that the most important thing a person tells you is what they are not telling you.[73] The southern senators argued vehemently against the broad range of the original Bill, but Johnson noticed that when it came to the right to vote, the tone of voice was different, almost ashamed. As Caro stresses southern senators regularly resorted to questionable constitutional principles. They had to face squarely some clear ones.
The Bill was therefore, through twists and turns, narrowed to voting rights. But even a weak voting rights provision had to be balanced with other provisions, not always directly relevant. As Caro explains, one of the south's great concerns was to ensure a jury trial for contempt proceedings in relation to the law. Such a requirement would enable white juries to protect them from overzealous enforcement. Northern senators of course were awake to this, and resisted a law which would in effect have been unenforceable because of procedural requirements. The focus of negotiation on the Bill therefore was not so much on the right to vote, but on the provisions about enforcement, on juries for contempt proceedings, and then the requirements for juries more generally. These provisions were developed to accommodate a balancing of the measure to enable passage, the right to vote at the core but with countervailing items surrounding it. Johnson's achievement was to construct such a balance, and to persuade the southern Democrats not to 'filibuster' on the Bill. Strom Thurmond alone did so in a speech which still holds the individual record of 24 hours and 18 minutes. The much more substantial Civil Rights Act 1964 was the subject of a full filibuster by the southern Democrats, but a cloture motion was successful, and the Bill passed the Senate.
Caro describes in great detail the legislative development and passage of the 1957 Bill. Some of these processes would be familiar to Australian politicians and officials who work on legislative development, though seldom is it so well described, or described at all. Some of the policy issues involved are similar. The Australian Senate usefully keeps a list of Bills debated in the Senate for longer than 20 hours. The Bills which became the Native Title Amendment Act 1998 (Cth), the Communist Party Dissolution Act 1950 (Cth),[74] the 1999 goods and services tax legislation, the Commonwealth Bank Act 1951 (Cth) and the Native Title Act 1993 (Cth) top the Australian list.[75] There is little doubt that the length of these debates reflected the intensity of the underlying policy and political conflict, and the significant legal changes which the legislation proposed. Interestingly, some of these Australian laws concerned minority rights, as did the American Senate debates described by Caro.
But the process in Australia is in some respects very different, reflecting the different constitutional structure. In Australia the executive is in Parliament, and more intimately involved in policy and legislative development than as described by Caro. The Prime Minister, Cabinet, responsible Ministers, ministerial advisers, departmental policy officers, government lawyers and professional drafters all have a much greater role, resulting in a very different process and style of legislation. The focus of policy and legislative development is within the government, rather than the Parliament and its Committees. But in the five major debates noted above, the government proposing the controversial legislation did not have a majority of members in the Senate.[76] Passage through it therefore became a significant task, and resulted in processes similar to those described by Caro. In particular passage required great skill by the responsible government Minister in the Senate. Senators Gareth Evans in relation to the Native Title Act 1993 (Cth) and Nick Minchin in relation to the Native Title Amendment Act 1998 (Cth) performed this task. In doing so, they demonstrated many of the attributes which Caro describes in Johnson in relation to the Civil Rights Act, and which led to his commanding role in the American Senate in the second half of the 1950s.
Robert Caro has used his biography of Senator Lyndon Johnson as a vehicle for a fascinating consideration of the American Senate itself. Caro skilfully investigates the physical places, the characters, and the details of Johnson's political life there. But he also shows a strong interest in the role of the Senate within the American constitutional arrangements, and in particular its law making processes. The place of the Senate within the Australian constitutional arrangements continues to be a contested issue. Caro's detailed consideration of the American model in action therefore makes fascinating reading for an Australian public lawyer.
[*] Deputy General Counsel, Australian Government Solicitor.
[1] Robert A Caro, The Power Broker: Robert Moses and the Fall of New York (1974).
[2] Robert A Caro, The Years of Lyndon Johnson: The Path to Power (1982); The Years of Lyndon Johnson: Means of Ascent (1990); The Years of Lyndon Johnson: Master of the Senate (2002) (Master of the Senate).
[3] The excellent American work Legislation and Statutory Interpretation by William N Eskridge Jr, Philip P Frickey and Elizabeth Garrett (2000) has a picture of Lyndon Johnson on its cover, as President signing into law the Civil Rights Act 1964.
[4] John Quick and Robert Garran, The Annotated Constitution of the Australian Commonwealth (1901) especially 411–444, 662–673 and 683–688;G Evans (ed), Labor and the Constitution 1972–5 (1977) especially 178-190 and 215–301; Geoffrey Sawer, Federation Under Strain (1977) especially 107–40; Dennis Pearce, 'The Legislative Power of the Senate' in L Zines (ed), Commentaries on the Australian Constitution (1977) 119; Peter Hanks, Constitutional Law in Australia (2nd ed, 1996) within 33–127; P H Lane, Lane’s Commentary on the Australian Constitution (2nd ed, 1997) especially 63-81, 392-397 and 406-419; Gabriel Moens and John Trone Lumb and Moens’ The Constitution of the Commonwealth of Australia Annotated (6th ed, 2001) especially 44–56, 188-196 and 202-213. Odgers' Australian Senate Practice edited by Harry Evans (11th ed, 2004) focuses to a greater extent on the practical workings of the Senate. However, recent editions have included comments such as: 'In practice, with the ministry, the executive government, initiating most legislation in the House of Representatives, controlling that House through a party majority, and advising the Governor-General, the task of exercising the legislative power falls upon the Senate' (11th ed, 227). This seems to me to be more of a rhetorical flourish than a statement of either constitutional principle or political reality. Political scientists are often best at looking at the meeting of principle and practice, see the recent publication by Stanley Bach, Platypus and Parliament: The Australian Senate in Theory and Practice (2003).
[5] Scott Sherman, 'Caro's Way' (2002) 41(1) Columbia Journalism Review 63-4.
[6] Master of the Senate 1051 and following.
[7] Ibid 1053.
[8] Ibid 835.
[9] The first volume of Caro's biography, The Path to Power, see above n 2, deals with Lyndon Johnson's family and childhood in this country, and Caro lived in this area when he was working on it.
[10] This is discussed extensively by Caro in volume 2 of the biography, Means of Ascent, see above n 2.
[11] Meg Russell, Reforming the House of Lords, Lessons from Overseas (2000) 19–20.
[12] Master of the Senate 8.
[13] Ibid 9.
[14] Henry Parkes stated in the 1891 Federal Convention Debates that what became the Australian Senate should:
have within itself the only conservatism possible in a democracy — the conservatism of maturity of judgment, of distinction of service, of length of experience, and weight of character — which are the only qualities we can expect to collect and bring into one body in a community young and inexperienced as Australia.
Quoted in Quick and Garran, above n 4, 416. The 1891 draft of the Australian Constitution provided for a Senate chosen ‘by the Houses of the Parliament of the several States', but by 1898 it was generally accepted that the Senate should be directly elected: see Quick and Garran, above n 4, 412-413, 418-419.
[15] United States Constitution art I, § 3 (4).
[16] The Australian solution is to give the President of the Senate, who is a senator, an ordinary vote, but no casting vote (Australian Constitution s 23).
[17] For example, Master of the Senate 856.
[18] Bruce Ackerman in 'The New Separation of Powers' (2000) 113 Harvard Law Review 633 discusses and assesses these two primary models, and their variants. As Ackerman points out, separation of powers is not an end in itself. The measures against which he assesses the models are democracy, professional competence, and enhancement of fundamental rights.
[19] Discussed by Ackerman, ibid 674–6.
[20] As to the very significant debate in relation to the drafting of this provision, see Brian Galligan and James Warden 'The Design of the Senate' in Gregory Craven (ed), The Convention Debates 1891–1898: Commentaries, Indices and Guide (1986) 89. As to issues in relation to its current operation, see House of Representatives Committee on Legal and Constitutional Affairs, Parliament of Australia, The Third Paragraph of Section 53 of the Constitution (1995).
[21] Again, as to the drafting debates, see Galligan and Warden, above n 20. There is significant High Court consideration of s 57 in Cormack v Cope (1974) 131 CLR 432, Victoria v The Commonwealth [1975] HCA 39; (1975) 134 CLR 81, and Western Australia v The Commonwealth [1975] HCA 46; (1975) 134 CLR 201. See also Sir Anthony Mason 'The Double Dissolution Cases' in H P Lee and George Winterton Australian Constitutional Landmarks (2003) 213.
[22] Department of the Prime Minister and Cabinet, Resolving Deadlocks: A Discussion Paper on Section 57 of the Australian Constitution (2003).
[23] Master of the Senate 79–80.
[24] Giles Scott-Smith 'From Symbol of Division to Cold War Asset: Lyndon Johnson and the Achievement of Hawaiian Statehood in 1959' (2004) 89 History 256.
[25] Master of the Senate 137.
[26] Ibid 137.
[27] Ibid 136 (emphasis in original).
[28] Ibid 137.
[29] Australian Constitution s 24. The Constitution states that until the Parliament otherwise provides there shall be 6 senators for each original State, that Parliament may increase or diminish the number of senators, but only so that there shall be equal representation of, and not less than 6 senators from, the original States (s 7). No new States have been admitted to the federation, but while the Australian Senate began life with 36 senators (6 from each State), it has moved by legislative reform to 60 in 1949 (10 from each State), 64 in 1975 (2 each from the Northern Territory and the Australian Capital Territory), and 76 in 1984 (12 from each State). The addition of Territory senators was upheld by the High Court in Western Australia v The Commonwealth [1975] HCA 46; (1975) 134 CLR 201 and Queensland v The Commonwealth [1977] HCA 60; (1977) 139 CLR 585. The increase in senators was driven to a large extent by the link to House numbers.
[30] Russell, above n 11, 25.
[31] Russell, above n 11, 10 and 25.
[32] Ibid.
[33] Ibid 25.
[34] The 17th Amendment states in part:
The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.
[35] See above n 2.
[36] Master of the Senate 390 (emphasis in original).
[37] Ibid 452.
[38] Australian Constitution s 7. Early drafts of the Constitution followed the original American model and provided for a Senate chosen ‘by the Houses of the Parliament of the several States’: see Galligan and Warden, above n 20, 109–110; and also above n 14.
[39] Bach, above n 4, especially 69–82, drawing in particular on the work of John Uhr and Campbell Sharman.
[40] Russell, above n 11, 29.
[41] Master of the Senate 81.
[42] United States Constitution art I, § 3(3). For representatives it is only 25 years and a citizen for seven years (art I, § 2(2)). For Presidents it is 35 years, and a natural born citizen (art II, § 1(5)).
[43] Master of the Senate 81.
[44] Ibid 82.
[45] Commonwealth Electoral Act 1918 (Cth) s 163(1) in relation to both senators and members of the House of Representatives. Section 16 of the Australian Constitution provides that 'the qualifications of a senator shall be the same as those of a member of the House of Representatives'. Section 34 states that '[u]ntil Parliament otherwise provides', a member of the House of Representatives 'must be of the full age of twenty-one years'.
[46] For example, this greater diversity was noted by the Prime Minister John Howard in the Opening Address, Liberal Women's Conference, Brisbane Convention and Exhibition Centre, 13 March 1998 <http://www.pm.gov.au/news/speeches/1998/libwom.htm> at 28 May 2005.
[47] Russell, above n 11, 32–3.
[48] Ibid 33.
[49] Ibid 33–43, especially 41, using the analysis of Arend Lijphart.
[50] United States Constitution art II, § 2(2).
[51] Treaties are generally required to be tabled in the Parliament. The Joint Standing Committee on Treaties established in 1996 reviews and reports on all treaty actions proposed by the government before action is taken which binds Australia to the terms of the treaty. For a recent analysis, see Madelaine Chiam 'Evaluating Australia's treaty-making process' (2004) 15 Public Law Review 265.
[52] Legislation may give a Committee a particular role. For example the Auditor-General Act 1997 (Cth) provides that the Minister must not make a recommendation for appointment as Auditor-General unless this has been referred to the Joint Committee of Public Accounts and Audit for approval, and the Committee has approved the proposed recommendation (sch 1 cl 2).
[53] Master of the Senate 232.
[54] Australian Constitution s 50(ii).
[55] Master of the Senate 363.
[56] Ibid 359.
[57] Ibid 488.
[58] Ibid 485.
[59] Ibid 92.
[60] Ibid.
[61] I C Harris (ed), House of Representatives Practice (5th ed, 2005) 512–519; House of Representatives, Standing Orders, Os 1 and 69 (formerly O 91).
[62] Harris, above n 61, 384–390; House of Representatives, Standing Orders, Os 82-85 (formerly O 92).
[63] J R Odgers, Australian Senate Practice (5th ed, 1976) 245.
[64] Ibid 352.
[65] Master of the Senate 92–4, 216–8. Caro describes how the southern senators even had this provision strengthened in 1949 to require two thirds of senators chosen, not just present. In 1975, the required number was reduced to three-fifths: see Richard S Beth and Stanley Bach 'Filibusters and Cloture in the Senate' Report for Congress, updated March 28, 2003, CRS Report RL30360, 10.
[66] Master of the Senate xxiii.
[67] Ibid 102.
[68] Ibid xv.
[69] Ibid xxiii.
[70] Ibid 688–91; United States Department of Justice 'Introduction to Federal Voting Rights Laws' <http://www.usdoj.gov/crt/voting/intro/intro_a.htm> at 28 May 2005.
[71] Master of the Senate ix– xi.
[72] Ibid 892.
[73] Ibid 890.
[74] Held invalid by the High Court in Australian Communist Party v The Commonwealth [1951] HCA 5; (1951) 83 CLR 1.
[75] Parliament of Australia, Senate, 'Bills debated for longer than 20 hours' <http://www.aph.gov.au/Senate/work/statistics/consid_legis/longest_debate.htm> at 28 May 2005.
[76] The Commonwealth Bank Act 1951 (Cth) was passed after the double dissolution election of 1951 when the government obtained control of the Senate.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/FedLawRw/2005/12.html