50 years after the Fair Housing Act, bipartisanship is still hard, but possible

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The Fair Housing Act of 1968 — one of the most challenging and in some ways the crowning achievements of the Civil Rights revolution — became law 50 years ago. In this era of hyperpartisanship, it is worth remembering just how indispensable bipartisanship was in shaping, passing, and implementing the law.

Throughout Lyndon Johnson’s years as president, Democrats had large majorities in Congress. But a large share of Democratic seats came from the then-Solid South, and what made the South “solid” was its nearly monolithic opposition to civil rights legislation. Moreover, the power of political minorities in the Senate was formidable. Overcoming a filibuster required not 60 votes, as it does today, but a two-thirds vote of members present — meaning 67 votes in a full chamber.

{mosads}The troika of civil rights objectives were measures against discrimination in the workplace, voting rights, and fair housing. The first measure — known as Title VII — passed after an epic four-month battle in 1964; the Voting Rights Act passed, somewhat more easily, in 1965. Most observers thought a fair housing bill would be the toughest sell of the three. Unlike voting rights, housing discrimination was not a regional, Southern problem but a national one. And unlike employment discrimination, where only large employers had to worry about lawsuits, every homeowner realized he or she could be a potential defendant if housing discrimination became illegal. In public opinion polls, only a third or so of voters favored such a law.

Nonetheless, the Johnson administration pushed for a strong fair housing bill in 1966. It passed the House of Representatives comfortably, but stalled in the Senate, and a vote to end debate by cloture secured only 54 votes — 12 too few to end a filibuster. In the fall 1966 mid-term elections, Democrats lost dozens of seats in the North and West, including three in the Senate. Increasingly on the defensive, administration Democrats did not even try in 1967 to move fair housing to floor debate in either the House or Senate.

In fact, however, the Republicans who entered the Senate in 1967 were moderates who genuinely believed in federal action on civil rights. One of them was Sen. Edward Brooke (R-Mass.), the first African-American elected to the Senate since Reconstruction and a strong fair housing supporter. Another was Sen. Howard Baker (R-Tenn.), who was not only a moderate but the son-in-law of Everett Dirksen (R-Ill.), the generally conservative Republican leader in the Senate. When the Senate became entangled in debate on a smaller civil rights measure in February 1968, Democratic leaders decided to test the political waters with a fair housing amendment. A cloture vote failed by only seven votes, and when the leadership offered a motion to send the measure back to committee, an even larger majority rejected the motion. Half of the Senate Republicans voted with liberal Democrats both times.

At this point, Dirksen realized that he might be a minority within his own caucus on the fair housing issue. After a week of intense negotiation with Democratic leaders, Dirksen won two key concessions: removal of enforcement powers from the Department of Housing and Urban Development (“HUD”), and an exemption for homeowners who did not use real estate brokers. While 80 percent of market transactions were still covered by the bill, the changes gave the bill a tone of focusing on institutional behavior, not private individuals.

With these amendments, the Senate voted cloture on March 2, 1968, by 65-32 — that is, with no votes to spare. Two-thirds of Democrats, and two-thirds of Republicans, joined in the historic victory. Five weeks later, the House passed the Senate measure without amendment, and Johnson signed the Fair Housing Act into law on April 11, 1968.

But an even more crucial sort of bipartisanship was to come. With HUD largely out of the picture, the key to whether the Fair Housing Act really reduced housing discrimination would turn on whether the Justice Department (“DOJ”) played a proactive role. Johnson’s attorney general, Ramsey Clark, took a few important early steps, but Republican Richard Nixon was elected president only 200 days into the “fair housing” era, and he appointed his former law partner, John Mitchell, as his attorney general. Would the Nixon-Mitchell combination kill fair housing?

It did not. Although the civil rights legacy of the Nixon administration was weak or divisive on some dimensions, one of its signal achievements was the creation of a strong fair housing enforcement unit in DOJ. To run this unit, Mitchell tapped Frank Schwelb, a veteran of the Kennedy administration who was later elevated to a judgeship by Jimmy Carter. Although his work on fair housing was largely overlooked at the time, Schwelb assembled a brilliant team who brought hundreds of enforcement actions against key players in housing: real estate brokers, apartment-building owners (including the Trumps), and apartment listing services.

Schwelb’s team picked the largest operators in many different metropolitan areas to show the reach of enforcement, and then usually settled the cases with consent decrees (rather than drawn-out lawsuits) to show it was focused on changing behavior, not on singling out firms for punishment.

Housing discrimination rates fell dramatically in the decade after the Fair Housing Act became law. Why this did not often translate into widespread housing integration is another, more complicated story. But the Fair Housing Act was a crucial achievement, and a powerful example of how our two parties could work together to achieve fundamental and positive change.

Richard H. Sander is professor of Law at UCLA School of Law and co-author of the forthcoming book, “Moving toward Integration: The Past and Future of Fair Housing” (Harvard University Press).


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