In February 1954, at a time of great public concern and anxiety about Communist subversion fed by the Cold War and Communist successes in Korea and Indochina, Senator Joseph McCarthy denounced the Democrats as the "party of communism, betrayal and treason." McCarthy's tactics in rooting out and exposing supposed Communists in the United States came to be known as "McCarthyism." These tactics were not the exclusive practice of the senator from Wisconsin. McCarthy was supported by Senator Robert A. Taft of Ohio and other conservative Republicans in Congress. President Dwight Eisenhower, who never publicly criticized McCarthy, benefited from the Republican charge that the Democrats were soft on Communism in his 1952 campaign against Adlai Stevenson.
Senator Hubert Humphrey of Minnesota, one of the founders of Americans for Democratic Action, a staunch liberal and anti-Communist organization, acknowledged the public's concerns about Communist subversion. He believed that liberals should take the lead in fighting Communism as well as all other totalitarian creeds and movements. Abandonment of the anti-Communist issue to the far Right, he feared, would damage the Democratic Party and the non-Communist Left generally. At the same time, McCarthyism was a boon to the Communists. The plight of those falsely accused by Senator McCarthy diverted attention from the actual Communists who were able to pose as innocents maligned by the Senator and as champions of the freedoms of speech and association guaranteed by the First Amendment to the United States Constitution. In 1954 Senator Humphrey and his legislative assistant Max M. Kampelman (later ambassador for human rights and arms control in the Carter and Reagan administrations) began drafting a bill called the Communist Control Act of 1954 (65 Stat. 775).
PRIOR ANTI-COMMUNIST LEGISLATION
At the time Congress began debating the Communist Control Act, significant anti-Communist legislation already existed. The 1940 Smith Act made it a crime to "teach, advocate, or encourage the overthrow or destruction of ... government by force or violence." Nazis and leaders of the Socialist Workers (American Trotskyist) Party and the Communist Party had been convicted of violating the Smith Act and subjected to fines and imprisonment. The Voorhis Act of 1940 required subversive organizations to register with the attorney general. In 1947 President Harry Truman issued an executive order establishing a program to rid the federal government of employees found to be disloyal or security risks.
In 1950 a Democratic Congress, over the veto of President Truman, enacted the Internal Security (McCarran) Act (ISA). The Subversive Activities Control Act (SACA), a part of ISA, required Communist-action and Communist-front organizations and members of Communist-action organizations to register with the attorney general. Members of Communist-action organizations were barred from employment by the federal government, working in a private defense facility, getting passports, or receiving classified information. People who had been members of a Communist Party at any time were prohibited from entering the United States. The other part of ISA authorized the detention of spies and saboteurs during any national emergency declared by the president.
The Supreme Court of the United States upheld the constitutionality of the Smith and ISA Acts in 1950, in Dennis v. United States, and in 1961, in Communist Party of the United States v. Subversive Activities Control Board.
CONGRESSIONAL DEBATE AND REVISION
The SACA relied on publicity to root out the Communists. Senator Humphrey proposed a new approach that would strike at both the Communist Party and the false accusations of McCarthyism. In August 1954 the 83rd Congress was debating a bill, introduced by Senator John M. Butler of Maryland, to combat Communist infiltration of labor unions. Humphrey offered his bill as a substitute for Butler's bill. The Humphrey bill subjected any person with knowledge of the objectives of the Communist Party who willfully became or remained a party member to imprisonment for not more than five years and a fine of $10,000. Any person prosecuted under the bill would have the benefit of the Bill of Rights and all other procedural safeguards accompanying any criminal proceeding, including the presumption of innocence. The prosecution would have to prove beyond a reasonable doubt that an accused individual was a knowing and willful member of the Communist Party. Anyone making false accusations against innocent individuals would face libel and slander actions. Humphrey believed his bill would deter McCarthyite tactics of character assassination and protect the reputations of innocent individuals.
Twenty senators co-sponsored the Humphrey bill, including liberal senators John F. Kennedy of Massachusetts, Paul Douglas of Illinois, and Wayne Morse of Oregon. The Senate voted to add the Humphrey bill as an amendment to, rather than substitute it for, the Butler bill. After modifying it in certain respects, the Senate passed the Butler-Humphrey bill by a vote of 85 to 0. The Butler provisions amended SACA by adding the category of "Communist-infiltrated organizations" to the category of "Communist organizations" required to register with the attorney general. The Butler provisions also made it illegal for any member of a Communistaction or Communist-front organization to hold office or employment with any labor organization or represent any employer in proceedings under the National Labor Relations Act. A labor union found to be a Communistinfiltrated organization was denied the benefits of the National Labor Relations Act.
Ultimately, Congress rejected the Humphrey provisions as passed by the Senate because of doubts about their constitutionality. Legislators also shared the concern expressed by Republican attorney general Herbert Brownell that the provisions would lead to the invalidation of SACA's registration requirements because the combination of provisions would compel individuals to disclose they were committing the crime of being members of the Communist Party and, therefore, violate the Fifth Amendment to the United States Constitution, which protects against self-incrimination. Instead, Congress confined the Communist Control Act to two objectives: (1) to outlaw the Communist Party, and (2) to subject party members to SACA's registration requirements and penalties applicable to members of a Communist-action organization. In its final form, the act passed the Senate by a vote of 79 to 0 and the House by a vote of 265 to 2. President Eisenhower signed the bill on August 24, 1954.
FEATURES OF THE ACT
The act begins by setting forth a finding of facts about the nature of the Communist Party of the United States that distinguishes it from other political
Outlawing the party was accomplished through a provision stating that the Party is not "entitled to any of the rights, privileges, and immunities attendant upon legal bodies created under the jurisdiction of the laws of the United States or any political subdivision thereof; and whatever rights, privileges, and immunities which have heretofore been granted to said party or any subsidiary organization by reason of the laws of the United States or any political subdivision thereof, are hereby terminated." Beyond revealing Congress's intent to keep the Communist Party off the ballot in any national, state, or local election, the scant legislative history fails to delineate the scope of these provisions. As made clear by the rejection of the original Humphrey bill, the act as passed was not intended to make the Communist Party's very existence unlawful. A provision in the act that it shall not be construed as an amendment to SACA indicated that the obligations and disabilities imposed on the party by SACA would remain. The provision would make no sense if the act was intended to bring about the dissolution of the Communist Party because there would then be no one to discharge these obligations.
JUDICIAL AND LEGISLATIVE REVIEW
Only a few court cases interpreted the scope of the act's termination of the party's "rights, privileges and immunities." In 1954 the New Jersey Supreme Court held that, under the act, a candidate who was not a nominee of the party could not appear on the ballot in a state election under the party label (Salwen v. Rees,.) The Supreme Court upheld the judgement of the New Jersey Superior Court in favor of the defendant-election official and adopted the Superior Court judge's oral opinion as its own. That opinion explained that the plaintiff-candidate was proclaiming that he was the candidate of the Communist Party and that a vote for him was a vote for "party enthronement." "In order to make good the outlawry of the Communist Party as such," the Superior Court judge stated, "it becomes unavoidable that individuals be prevented from carrying its banner." This "peculiar method, as chosen by the [plaintiff-candidate], is a keen way of circumventing the statute, because if it were valid for him to take the course that he has chosen, it would be valid for a complete set of candidates to do the same thing, the consequence of which, of course, would be to frustrate completely the design of federal law." In 1973 a federal district court in Arizona decided that the act was unconstitutional and Arizona could not keep the party off the ballot in the 1972 general election (Blawis v. Bolin.) In 1961 the Supreme Court of the United States ruled that the act did not bar the party from participating in New York's unemployment insurance system (Communist Party v. Catherwood.)
The Supreme Court of the United States has not ruled on the act's constitutionality, and civil libertarians remain divided on the issues of the constitutionality and wisdom of the act. No administration has tried to enforce it. Congress began to dismantle SACA in 1968 when it repealed the provisions relating to the registration with the attorney general of Communist-action and Communist-front organizations and of members of Communist-action organizations. In 1993 it repealed all the other provisions of SACA as they related to the party. By this time, the Soviet Union, and with it the world Communist movement, had collapsed, the Cold War had ended, and the Communist Party of the United States had dwindled into complete insignificance.
THE ACT IN A POST-COMMUNIST WORLD
The provisions of the act "outlawing" the party have not been repealed. A tiny remnant of the party continued to exist into the twenty-first century under its lifetime leader, the octogenarian and unregenerate Gus Hall. It maintains a Web site. But it did not participate in any federal or gubernatorial elections in 2002. There is no evidence that it appeared in any state or local election, but there is a report that it may have been on the ballot in an election in the Bronx, New York.
Despite the irrelevance of the act here at home, the controversy over its consistency with democratic principles has important international implications. Many nations have laws outlawing totalitarian organizations. The United States may have to take a position on whether democratic principles give legitimacy to Muslim fundamentalist movements, such as those in Algeria and Pakistan, that seek political power by legal means only to crush democracy. The Communist Control Act is a precedent for not tolerating intolerant political movements.
See also: ALIEN SEDITION ACTS OF 1798; ESPIONAGE ACT (1917) AND SEDITION ACT (1918).
Hayes, John Earl, and Harvey Klehr. Venona: Decoding Soviet Espionage in America. New Haven, CT: Yale University Press, 1999.
Hayes, John Earl, Harvey Klehr, and Kyrill M. Anderson. Venona: The Secret World of American Communism. New Haven, CT: Yale University Press, 1998.
Kampelman, Max M. Entering New Worlds: The Memoirs of a Private Man in Public Life. New York: Harper Collins, 1991.
Morgan, Donald G. Congress and the Constitution: A Study in Responsibility. Cambridge, MA: Harvard University Press, 1966.
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