This Day in Senate History (Robert Byrd Becomes Longest-Serving Member)

 

June 12, 2006—Having already occupied the most powerful leadership posts in the upper chamber of Congress, Robert Byrd surpassed Strom Thurmond as the longest-serving member in the history of the U.S. Senate. 

By the time he died four years later, at age 92, the Democrat from West Virginia had also become the longest-serving member in the history of Congress as a whole; had cast more votes than any other member; and had won an unprecedented ninth term for his office.

If Byrd had completed only his second, or even third, term as Senator, he might have been remembered far more negatively. In an entry for October 2, 1971 that was posthumously included in The Haldeman Diaries, H.R. Haldeman, chief of staff for Richard Nixon, recorded that his boss, annoyed that a potential Supreme Court nominee, Richard Harding Poff, was withdrawing from consideration for a Supreme Court vacancy, had decided to “really stick it to the opposition now”:

“On the court, he came up with the idea of (Robert) Byrd of West Virginia because he was a former KKK’er, he’s elected by the Democrats as Whip, he’s a self-made lawyer, he’s more reactionary than Wallace, and he’s about 53.”

Byrd indeed was “a former KKK’er,” a recruiter and organizer in the 1940s (though never a Grand Wizard, as some recent GOP misinformation states), as well as an advocate for racial segregation and a supporter of the Vietnam War. 

But the need to secure votes among non-Southern colleagues for Senate leadership offices led him over the years to moderate old positions. Eventually, Byrd backed renewal of voting-rights legislation—a stance that won him praise from civil rights icon John Lewis and Barack Obama, the first African-American President—and he opposed both Ronald Reagan's aid to the contras in Nicaragua and George W. Bush’s invasion of Iraq.

As alluded to by Nixon, Byrd defeated the incumbent Democrat whip, Ted Kennedy, in 1971, shocking many political observers of the time. Thereafter he was elected twice as Senate Majority Leader. 

“I ran the Senate like a stern parent," Byrd recalled in his memoir, Child of the Appalachian Coalfields. He had little time for small talk or glad-handling, as, for instance, the convivial Kennedy had. But his mastery of Senate rules gave him an unrivalled ability to rack up votes.

Unsurprisingly, then, despite his reputation for oratory (with speeches often studded with references to Roman history or literature), Byrd made a more lasting mark as a legislative technician.

Sanford Ungar’s 1975 Atlantic Monthly profile demonstrated how Byrd structured (or restructured) the Senate business on his way up the hierarchy (including shortening the chamber’s “morning hour” and moderating who could speak on the floor). 

Were he alive today, Byrd might not recognize the political climate in either his native state or the Senate he had served so assiduously. Joe Manchin has been the only Democrat to hold a statewide office in the last four years, forcing him to tack to the right—a far cry from the days when Byrd regularly romped to landslide victories in the general election, or even ran unopposed. (Donald Trump took the state with nearly 69% of the popular vote in both the 2016 and 2020 Presidential races.)

Particularly during his two decades as chair or ranking member of the Senate Appropriations Committee, Byrd earned the nickname “The King of Pork” for the enormous federal largesse he secured for West Virginia--$1.2 billion through the Senate from 1991 to 2006, largely due to his efforts, according to an analysis by the nonprofit group Citizens Against Government Waste.

Though the use of earmarks is now being revived in Congress, the odor of illegality and ethical misdeeds continues to cling to the practice a decade after its use was banned. That complicates Senators’ hopes of proving their value to constituents—and the bargaining leverage for complex, often controversial bills that prior Senate leaders like Byrd would have possessed.

Finally, one suspects that Byrd—an institutionalist who defended the use of the filibuster in the Senate—might have lifted his eyebrows, annoyed at how Ted Cruz and his GOP colleagues have weaponized the practice. Rather than totally ban the filibuster, however, Byrd would probably have tried to punish Cruz for his showboating—perhaps by using an arcane parliamentary rule to stall a pet project—while warning Democratic colleagues against outlawing a procedure that they might find handy to use someday, albeit less frequently.

Flashback, April 1871: President Grant Strikes at KKK

With violence aimed at suppressing African-American voting rights rising alarmingly in the South, Ulysses Grant signed the Ku Klux Klan Act, giving the President a weapon to stamp out the first major domestic terrorist organization after the Civil War.

The Federal oversight and intervention called for in the Ku Klux Klan Act (or, as it was formerly called, the Third Enforcement Act) was unprecedented, but so was the threat posed to American citizens in the former Confederacy during Reconstruction. 

If the issues surrounding this threat in the postbellum South—access to voting rights, a white-dominant party seeking to retain its entrenched privilege, and extremists resorting to new violent methods to check the rising power of African-Americans—sound familiar to contemporary readers, they should.

The remnants of the defeated slave states didn’t waste time trying to reconfigure their old social, political and economic order through new means of subjugating African-Americans. The Ku Klux Klan (KKK), founded in 1866 by Confederate Gen. Nathan Bedford Forrest, had evolved two years later from a fraternal order into a violent, secret one that, under white robes, hoods and the cover of night, sought to:

*whip freedmen who violated the code of white superiority (e.g., refusing to take off one’s hat in the presence of whites, interracial couples);

*kill African-Americans who exercised the right to vote, or their white Republican allies; and

*intimidate other members of these groups into silent compliance.

Passage of the 14^th and 15^th Amendments, ensuring “due process of law” and voting rights for all citizens, respectively, only increased the tempo of the violence, which reached highs especially before elections.

Two prior Enforcement Acts, adopted in 1870 and early 1871, authorized the appointment of election supervisors to counteract electoral fraud, bribery and intimidation of voters, and conspiracies to prevent the exercise of constitutional rights, and strengthened enforcement powers in large cities.

Initially, President Grant hoped this would be enough to curb the terror. Yet, as Congressional testimony revealed, violence continued, with witnesses reluctant to testify for fear of retaliation, Klansmen unwilling to inform on each other, and juries refusing to convict in those cases brought. 

Nor were politicians in the South able or often even willing to intervene: Democratic officeholders, if not KKK members, were often sympathetic to it, and Republican governors feared that using African-American troops would only start a race war.

Initial postwar legislation had left the prosecution of private criminal acts to local law enforcement. But with the new legislation, the federal government was stepping in.

To Democrats, the new legislation came to be nicknamed “The Force Acts”. In particular, they complained that the Ku Klux Klan Act authorized the suspension of habeas corpus—i.e., suspects would be arrested and held without bail—declarations of martial law, and the use of federal troops to arrest violators of the act and to break up “bands of disguised marauders.”

This portion of the legislation was the most legally and politically problematic. During the Civil War, Abraham Lincoln had suspended the writ of habeas corpus, arguing the move was necessary to quell the rebellion. 

Although the Supreme Court had been reluctant to deal with the issue while the war was raging, it ruled a year after its conclusion, in Ex parte Milligan, that the President did not have the authority to apply military tribunals to citizens when civil courts still operated. How much it would ignore the Grant Administration’s treatment of habeas corpus was uncertain.

Even members of Grant’s own party were not all behind the legislation. So-called “moderate Republicans” such as Lyman Trumbull expressed grave doubts about its constitutionality, and members of the President’s own Cabinet privately complained about listening to Attorney General Amos Akerman report frequently on KKK depredations in the South.

But those directly facing the terror argued that these were legal niceties and action must be taken. Grant was particularly careful to use his powers concerning habeas corpus sparingly, in only nine South Carolina counties. Yet, under Akerman’s aggressive and inspired leadership, other provisions in the legislation were used to the hilt, with federal grand juries bringing approximately 3,400 indictments against the KKK, resulting in more than 1,100 convictions.

Although Southerners saw Grant as doing too much in the South, Radical Republicans such as Sen. Charles Sumner believed that he had done too little, and very late even at that. But within the sphere the President had determined, he had moved decisively.

As historian James M. McPherson observed in Ordeal By Fire: The Civil War and Reconstruction: “The government’s vigorous action in 1871-1872 did bring at least temporary peace and order to large parts of the former Confederacy. As a consequence, the 1872 election was the fairest and most democratic presidential election in the South until 1968.”

With adverse Supreme Court decisions and the withdrawal of Federal troops from the South after the 1876 election, Southern whites were able increasingly to roll back the political and economic gains of freedmen.  

As for the KKK, it has reemerged three different times since then: in the decade after the 1916 film Birth of a Nation, when it broadened its terror campaigns to encompass Roman Catholics and Jews as well as blacks; in the midcentury civil-rights era, when it concentrated again largely on African-Americans; and in the last four years, as part of a larger nationalist movement that has grown 55%, according to a 2020 report from the Southern Poverty Law Center.

The Ku Klux Klan Act, while little enforced for much of the 20^th century, now forms Section 1983 of the United States Code and is the basis for federal civil rights lawsuits across the country, according to Nicholas Mosvick's blog post for the National Constitutional Center.

It has become even more relevant as the basis of a lawsuit against former President Donald Trump and ally Rudy Giuliani for allegedly conspiring with a pair of hate groups to storm the U.S. Capitol and block the Electoral College count in January.

This Day in Southern History (Black Codes Set Freedmen Back)

November 24, 1865--The guns and cannons had fallen silent seven months before at Appomattox, but Mississippi--the state whose favorite son, Jefferson Davis, had become President of the short-lived Confederacy--was determined to gain in its legislature what it could not achieve on the battlefield: permanent subjugation of African-Americans. Starting by rewriting an antebellum law related to vagrancy, the legislature attempted to relegate freedmen to a state of near-slavery over the course of the next six days, becoming the first of the defeated Confederate states to pass Black Codes that helped stymie the success of Reconstruction.

When South Carolina--even more of a hotbed of the Confederacy--followed with similar legislation, aghast Northern Congressmen took note of the racial intransigence taking hold in a region still devastated by war. Radical Republicans, increasingly concerned about the lenient Reconstruction program of President Andrew Johnson (in the image accompanying this post), felt they had no choice but to step into the breech with their own rectifying legislation, including the federal Civil Rights Act of 1866.

That reaction led other Confederate states not to repeat the mistake of Mississippi and South Carolina: specifically referring to African-Americans in the legislation. (The former state’s vagrancy law had been rewritten to cover “freedmen, free Negroes and mulattoes…without lawful employment or business.”) But these latter measures were mere fig leaves over the real intent: to keep freed blacks in as close to the places they had occupied before the war as possible.
Though this blatantly discriminatory legislation was passed in the political arena, its underlying motivation was economic--or, to be more precise, labor relations. As many as 10,000 slaveowners had simply left their plantations at the war’s conclusion, according to Columbia University historian Eric Foner’s excellent history, Reconstruction: America’s Unfinished Revolution, 1863-1877.

The plantation system was in a state of chaos immediately after the war, and the value of land was in free fall for a long time after that. In Mississippi itself, the value of farm land, which reached $190 million in 1860, had plummeted to $81.7 million 10 years later, according to data from the University of Virginia Geospatial and Statistical Data Center.

Those landowners who, against all these odds, wanted to resume their old lives simply could not imagine a new system based on Northern capitalism in which a worker could not only keep what he earned, but could negotiate (albeit not from a position of strength) for a better wage, or simply leave his job for a better one.

Defenders of vagrancy legislation in Mississippi and the other Southern states noted that many Northern states had similar laws on their books. But Northern judges applied such laws more to petty thieves and prostitutes than to African-Americans. In contrast, Mississippi’s laws started by circumscribing the freedmen’s ability to reap the fruits of their labor, but they ended by restricting their freedom of movement, opportunities to better themselves, and even their ability to defend their lives.

Astonishingly, Mississippi required at the beginning of each year that African-American males possess papers proving that they were employed. If, by chance, they had the misfortune of being laid off later, they were judged in violation of the vagrancy statutes.

One section of Mississippi’s sweeping legislation was titled “An Act to Confer Civil Rights on Freedmen, and for Other Purposes.” A century later, that title would have been called Orwellian, since the legislation ended up preventing blacks from:

* serving on juries with whites;
* testifying against whites in trials;
* attending white schools; and
* bearing arms.

In particular, this last point would have devastating implications because of a subterranean movement that would shortly gain sway across the Confederacy. Exactly one month after Mississippi passed its vagrancy legislation, the original Ku Klux Klan was organized in Pulaski, Tenn., with General Nathan Bedford Forrest becoming its head.

Within five years, its all-out campaign of domestic terrorism--including, but hardly limited to, breaking up black prayer meetings, voter intimidation, and murder--became so virulent in reversing the gains made by freedmen in the New South that President Ulysses S. Grant was forced to intervene to crush the Klan. In an op-ed piece for the New York Daily News, Teachers College professor Marc Lamont Hill pointed to Southern restrictions on African-Americans’ ability to protect themselves through arms as a reason why “Strict Gun Laws Are Bad for Blacks.” (I regard this latter view as mistaken, but Hill’s point about the terror and helplessness experienced by freedmen bred by the “black codes” remains undeniably true.)

The Civil Rights Act of 1866, along with the Fourteenth Amendment, overcame the Black Codes. But the latter legal statutes and constitutional amendments enacted by the former slave states served as a marker for later Jim Crow legislation.

Aided and abetted by officials who, at best, were unsympathetic to any notion of black equality, and at worst were former high-ranking officers or elected officials in the Confederacy, the South forced the North to occupy the region for a dozen years after the war. The recent American experience in Iraq demonstrates both the resentment wrought in native populations by such a presence and the growing restlessness at home over the economic and other costs of keeping order in such regions.

Much of the North breathed a sigh of relief when federal troops were withdrawn from the old Confederacy following the controversial election of 1876. African-Americans were hardly part of this chorus. The Black Codes--and the Ku Klux Klan that followed hard on its heels--had already proven to them what the South would do when left to its own devices. For nearly another century, Southern blacks had to live with the baleful consequences that followed the federal retreat from civil-rights enforcement.

This Day in Business History (The Panic of 1873)

September 18, 1873—In an increasingly globalized economy, a major financial institution, long driven by overoptimism, suddenly came a cropper, sending shivers through Wall Street. A Republican U.S. President, unwilling to withdraw troops in an occupied region even after a number of years, was blamed for misplaced priorities. But it’s not just 2008—this all happened in the Panic of 1873, too.

This major economic setback began at 11 am in the fifth year of the Grant administration, as H.C. Fahnestock, the New York partner of Jay Cooke, cleared his throat and informed dumbfounded observers that the office was closed.

Though this week’s bankrupt financial institution, Lehman Bros., might be more familiar to Americans, Jay Cooke & Co. might in its time have cut a longer shadow, as the financier of the Union Army during the Civil War and as underwriter of construction of the Northern Pacific Railroad. It was Cooke’s attempt to back a second transcontinental railroad, at a time when the demand didn’t exist, that effectively ruined the firm and threatened to bring others down with it.

By day’s end, 37 other banks and two brokerage houses would, like Cooke, close their doors. Suddenly European lenders began to call in their loans (for an idea of the foreign version of speculative mania, see Anthony Trollope’s masterful The Way We Live Now).

The economic effects of this massive bubble and its correction have been much remarked upon over the years—notably the tension building between management and labor that flared up in earnest for the next 60 years.

But I learned of an equally significant consequence in Columbia University historian Eric Foner’s Reconstruction: America’s Unfinished Revolution: the unraveling of the Northern attempt to create a more equitable, racially just South.

The nation’s economic pain came at a particularly bad time for Ulysses S. Grant. In a lecture I saw him deliver at the Chautauqua Institution several years ago, Foner referred to the Ku Klux Klan as an agent of “domestic terrorism.” Grant ordered the arrest of hundreds of Klansmen, but it was an uphill battle to make the indictments stick. In the North, support was eroding for an open-ended commitment to keeping federal troops in the South, where they were still viewed as the enemy.

In the South, the “Bourbon Democrats” or “Redeemers” were looking for a way to undercut activist government. The Panic gave them a perfect excuse. The results were, to say the least, all they could ask for:

1) A clamor rose to cut state budgets and lower tax rates;
2) Private contractors leased convicts—the beginning of the “Chain gang” system;
3) Racially integrated state legislatures had, for the first time in the South’s history, funded public schools—but now aid for those schools, and particularly anything associated with blacks, was cut.

As part of the deal to end the impasse over the election of 1876, Democrats allowed the Republican Rutherford B. Hayes to win on condition that federal troops be withdrawn from the South’s capital cities. Reconstruction finally received its coup de grace from the Supreme Court’s in Plessy v. Ferguson. But the Panic of 1873 laid the necessary groundwork for all of this.