National Affairs: Frivolity

With rare candor, officials of the U.S.

Communist Party admitted last week that they had not yet figured out what, if anything, the Communist Control Act of 1954 would do to their party. This ignorance was the more understandable since the men who passed the act were quite as much in the dark.

The bill, some headline writers said, outlawed Reds. Others were of the opinion that it outlawed the Communist Party. There was some speculation about what “to outlaw” might mean. Did it mean, as some said, that the Communist Party and/or its members could not sign leases, have bank accounts or sue in court? This kind of outlawry, stripping away all legal protection, is a medieval notion, inconsistent with post-feudal legal concepts and beyond the constitutional power of Congress.

If the bill does not “outlaw” Communists in this sense, does it create a new crime—that of being a member of the Communist Party? The answer is no. Any explanation of the bill has to take off from the legal position of Communists prior to the bill’s passage.

Scores of Communist leaders have been convicted under the Smith Act of 1940. To convict, the Government had to prove 1) that the accused willingly joined the Communist Party, 2) that he knew the party’s practice and purpose, and 3) that the practice and purpose of the party were advocating and striving for the violent overthrow of the U.S. Government.

The bill passed last week makes Point 3 easier to prove in court and perhaps unnecessary to bring up. But the Government seldom has any trouble convincing juries of Point 3. Up to now, argument has turned around point 2; as Government prosecution reaches deeper into the party, the main issues may be on points 1 and 2. The new bill will not help the Justice Department in those areas. It will still be necessary to establish that the accused knew the illegal purpose of the organization he joined.

So what does last week’s bill do to the Communists? Probably nothing. It was aimed not at them but at another group, the Republicans. The bill’s sponsor, Minnesota’s Senator Hubert Humphrey, was trying to deflect the Republican charge that Democrats are soft on Communism.

In last week’s congressional maneuvering the Republicans, caught sleeping, hastily said that they were for a less “drastic” measure, but in the adjournment rush they couldn’t afford to oppose the bill as such. The Democrats, of course, were all for “outlawing.”

When it came to a final vote, the Senate passed the bill 79 to 0 and the House 265 to 2. When Congress is that close to unanimity it is usually either declaring war or being frivolous. Last week it was not declaring war.