3 Congressmen Want to Strip Democratic Socialists of America of Legal “Rights, Privileges, and Immunities”

Reps. Clay Fuller, Diana Harshbarger, and Keith Self are cosponsors of H.R. 10501, introduced three weeks ago:

The Communist Control Act of 1954 is amended—

1. in section 3 (50 U.S.C. 842), by striking “or any successors of such party” and inserting “, the Democratic Socialists of America, or any successors of such party or organization”; and
2. in section 4(b) (50 U.S.C. 843(b))—
   1. by inserting “the organization now known as the Democratic Socialists of America,” after “the organization now known as Communist Party of the United States of America,”; and
   2. by inserting “or any successor organization” after “any unit or subdivision of any such organization”.

What this would do isn’t entirely clear. Title 50 U.S.C. § 843 subjects covered organizations to “all the provisions and penalties of the Internal Security Act of 1950,” but that has largely been repealed. Title 50 U.S.C. § 842 provides,

The Communist Party of the United States, or any successors of such party regardless of the assumed name, whose object or purpose is to overthrow the Government of the United States, or [any U.S. state or local government] by force and violence, are 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 ….

Whether that would strip the DSA of, say, status as a corporate body or some such is unclear; see Communist Party v. Catherwood (1961) for the Court’s one attempt to interpret the statute, which concluded that the Party wasn’t excluded from employer registration under state unemployment insurance law.

But whatever the bill might do precisely, its only possible meaning would be to strip the DSA of at least some ordinary protections that all other organizations, including political organizations, enjoy, based on its viewpoint. That would violate the First Amendment.

To be sure, during the 1950s and early 1960s the Supreme Court did uphold some restrictions on the Communist Party—but those stemmed precisely because the Communists were aiming at “(a) overthrow of existing government by any means necessary, including force and violence, (b) establishment of a Communist totalitarian dictatorship, (c) which will be subservient to the Soviet Union.” The Court decisions that upheld limits on the Communist Party and its organizers repeatedly stressed the narrowness of this definition.

Even during that era, these decisions were not applied to the Socialist Party. (That party had existed in the U.S. since 1901, had elected Representatives and local officials, and ran a candidate for President, Eugene V. Debs, who won 6% of the popular vote in 1912.) And in Communist Party of Ind. v. Whitcomb (1974), the Supreme Court concluded that a state couldn’t exclude the Communist Party from the ballot even if it “advocates violent overthrow [of government] as abstract doctrine”: It could only exclude such a party if it advocates concrete violent action.

Indeed, the Court made clear that the extremely demanding Brandenburg v. Ohio (1969) “incitement” test—under which “advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action”—protects speech and association not just against criminal punishment but against other forms of suppression as well:

This principle that “the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action” has been applied not only to statutes that directly forbid or proscribe advocacy, but also to regulatory schemes that determine eligibility for public employment, tax exemptions, and moral fitness justifying disbarment.

The same would apply to general exclusions from “any of the rights, privileges, and immunities attendant upon legal bodies.”

To be sure, as Rep. McCormick’s press release points out, the DSA “want to rewrite our Constitution and fundamentally restructure the government of the United States.” But that is not a call for concrete violent action, and is entirely consistent with what the DSA are actually doing now, which is trying to get elected. Advocating for rewriting our Constitution through peaceful means has always been fully constitutionally protected. Indeed, our Constitution is the result of a rewrite of the preexisting constitution (the Articles of Confederation) through peaceful means.

I of course loathe many of the DSA’s policy proposals, and Socialism more broadly. And I actually do think that an attempt to actually implement Socialism (in the sense of government seizure of the means of production) is likely to lead to violence, including violent oppression by any Socialist government; that is the history of Socialist governments. Nor do I support a massive growth of the welfare state to the levels present in some countries in Europe (or beyond those levels). Those countries aren’t actually Socialist, whatever the names of the parties that may have governed them at times, because they didn’t actually involve general government control over the means of production. But I think the governments in those countries still imposed too much government control over economic activity.

But whatever my disagreement with the DSA, none of this can allow using the law to suppress its advocacy or political participation. First Amendment law, and broader principles of liberty and democracy, seem to me quite clear on that point.