Communist Party of the United States v. Subversive Activities Control Board

Although the Court did not rule against the McCarran Act in this first test of its constitutionality, as more cases challenging various penalties associated with noncompliance with the act came before the Court, the Court struck them down one after another until the act was gutted.

In 1950, over a veto cast by President Harry Truman, Congress passed the Internal Security Act, popularly known as the McCarran Act. Passed at the height of the Cold War, when national paranoia about Communist infiltration and subversion was at fever pitch, the act was intended to root out the Communist Party in the United States. Convinced that secrecy was one of the party's greatest weapons, Congress required in the McCarran Act that all Communist organizations register with the attorney general. The Subversive Activities Control Board (SACB) was created to oversee the registration procedure, which also required that registered organizations disclose the names of their officers and the sources of their funds. The SACB promptly ordered the Communist Party of America to register, which it declined to do.

The party, arguing that the registration requirement was unconstitutional, fought the SACB for nearly 11 years, ultimately appealing the registration order to the U.S. District Court of the District of Columbia, where the appeal was rejected. The party finally turned to the Supreme Court.

The party's primary arguments were that the registration requirement was either unconstitutional as a bill of attainder or a violation of the First Amendment rights of freedom of speech and association. Article I of the Constitution outlaws bills of attainder at both the state and federal levels. This prohibition against government-imposed penalties without benefit of trial was of clear importance to the drafters of the nation's foundation document, who wanted there to be both a clear distinction between legislative and judicial functions in government and a government of laws, not men. The party's other argument against the registration requirement was that it violated guarantees established in the First Amendment, arguably the most fundamental guarantee embodied in the Bill of Rights.

Nonetheless, the Supreme Court upheld the registration requirement. The opinion of the Court, written by Justice Frankfurter, stated that since the only issue properly before the Court was the constitutionality of the registration requirement, which in itself included no provisions as to regulation or penalties, the SACB had behaved appropriately in ordering the Communist Party to register. Indeed, the opinion went to considerable lengths to validate the SACB's mission:

. . . Congress has found that there exists a world Communist movement, foreign-controlled, whose purpose it is by whatever means necessary to establish Communist totalitarian dictatorship in the countries throughout the world . . . Congress has found that in furthering this purpose, the foreign government controlling the world Communist movement establishes in various countries action organizations which, dominated from abroad, endeavor to bring about the overthrow of existing governments . . . And Congress has found . . . that a Communist network exists in the United States . . . The purpose of the Subversive Activities Control Act is said to be to prevent the world-wide Communist conspiracy from accomplishing its purpose in this country . . . It is not for the courts to re-examine the validity of these legislative findings and reject them.

In cases such as Yates v. United States (1957), which reversed the convictions of California Communist leaders under the anti-Communist Smith Act, the Court had already rejected such legislative findings. The passage quoted above gives some hint of why, in this case and several others decided around the same time, the Court retreated from its earlier opposition to the antisubversive legislation of the 1950s.

In the wake of decisions like Yates, conservative legislators grew alarmed and threatened to adopt legislation curtailing the Court's right to hear appeals in subversion cases. Before this threat could be realized, however, Justice Frankfurter, an advocate of judicial restraint towards legislation, and Justice Harlan changed their voting postures, shifting from support of civil liberties to concern for national defense. But after Frankfurter's retirement in 1962, the balance shifted back again, and by the time the penalties associated with failing to register with the SACB came before the Court in cases such as Aptheker v. Secretary of State (1964), the Court had reverted to its earlier liberalism.