U.S. Representatives Clay Fuller, Diana Harshbarger, and Keith Self have stepped in as co-sponsors of H.R. 10501, a measure that was unveiled roughly three weeks prior:
The Communist Control Act of 1954 is amended—
- 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
- in section 4(b) (50 U.S.C. 843(b))—
- 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
- by inserting “or any successor organization” after “any unit or subdivision of any such organization”.
What the bill would actually accomplish isn’t crystal clear. Title 50 U.S.C. § 843 would bring these designated groups under the umbrella of the provisions and penalties once tied to the Internal Security Act of 1950, a statute that has largely been repealed over time. Meanwhile, Title 50 U.S.C. § 842 defines the Communist Party of the United States, or any successors of that party under whatever name it may adopt, as having an objective or purpose to overthrow the Government of the United States, or any state or local government within the United States, by force and violence, and therefore they would be denied the rights, privileges, and immunities typically granted to legal entities created under the laws of the United States or its political subdivisions ….
Whether such a reform would simply strip the DSA of some corporate-like status or something akin to that remains uncertain; see Communist Party v. Catherwood (1961) for the Court’s sole attempt to interpret the statute, which concluded that the Party was not barred from employer registration under state unemployment insurance laws.
Yet irrespective of the precise legal consequence, the bill’s narrowest plausible effect would be to remove some ordinary protections afforded to most organizations—political groups included—solely on account of the group’s ideology. That kind of consequence would implicate the First Amendment.
To be fair, the Supreme Court in the 1950s and early 1960s did uphold certain restrictions directed at the Communist Party—but those rulings rested specifically on the Communist movement’s stated aims: (a) the overthrow of the existing government by any means, including force and violence; (b) the establishment of a Communist totalitarian regime; (c) that regime’s subservience to the Soviet Union. The Court’s opinions that restricted the Communist Party and its organizers consistently emphasized how narrowly those criteria were defined.
Even within that era, those decisions did not extend to the Socialist Party. That party had a long-standing presence in the United States since 1901, had elected representatives and local officials, and even ran Eugene V. Debs as a presidential candidate, who received about 6 percent of the vote in 1912. And in Communist Party of Ind. v. Whitcomb (1974), the Supreme Court held that a state could not keep the Communist Party off the ballot merely because it advocated violent overthrow as an abstract doctrine; exclusion could occur only if the party promoted concrete, actionable violence.
Moreover, the Court clarified that the high bar established by the Brandenburg v. Ohio (1969) incitement standard—proscribing speech that advocates force or law violation unless it is directed to provoking imminent lawless action and is likely to produce such action—protects not only against criminal sanction but against other forms of suppression as well:
This principle, which holds that the constitutional guarantees of free speech and free press do not permit a state to bar or proscribe advocacy of the use of force or of law violations except where such advocacy is aimed at 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 advocacy but also to regulatory schemes that determine eligibility for public employment, exemptions from taxation, and moral fitness justifying disbarment.
The same line of reasoning would extend to broad exclusions from “any of the rights, privileges, and immunities attendant upon legal bodies.”
Admittedly, Rep. McCormick’s press release notes that the DSA seeks to “rewrite our Constitution and fundamentally restructure the government of the United States.” Yet this objective does not amount to a call for immediate violent action, and it aligns with the DSA’s current strategy, which is to participate in elections. Advocating for constitutional reform through peaceful means has historically been protected by the First Amendment. After all, the Constitution itself arose from a peaceful revision of the preceding framework (the Articles of Confederation).
On a personal note, I repudiate many of the DSA’s policy proposals and, more broadly, socialism as an ideology. I also believe that attempts to implement socialism—defined here as government ownership of the means of production—tend to precipitate violence and oppressive outcomes under socialist regimes; this history is well documented. I do not advocate expanding the welfare state to levels found in some European nations (or beyond). Those nations are not truly socialist in the sense of general government ownership of production, regardless of which party has governed them at times; nevertheless, they have historically exercised substantial state control over economic activity.
Even with those disagreements, nothing about the DSA’s advocacy or participation in politics should be suppressed by legal means. The core principles of the First Amendment, along with broader commitments to liberty and democratic governance, strongly argue against any such coercive use of the law.
