Up from the Underground

Thanks to the free institutions it would destroy, the Communist Party of the U.S. has survived all efforts to legislate it and prosecute it to death. Last week the Supreme Court gave the party another energizing whiff of legal oxygen.

In a unanimous decision, the court prohibited the Government from compelling individual party members to register with the Government as stipulated by the Subversive Activities Control (McCarran) Act of 1950. "In an area permeated with criminal statutes," maintained Justice William J. Brennan Jr.'s opinion, by the 1950 law the party member would be forced to incriminate himself, in violation of his rights under the Fifth Amendment.

No Volunteers. Only two Communists were involved in the latest ruling, but its practical effect is to end litigation against 41 other party members who have refused to register. In 15 years, the five-member board established by the McCarran Act has failed to get a single Communist or crypto-Communist organization or individual registered. As Harry Truman said of the bill, which passed over his veto: "The idea of requiring Communist organizations to divulge information about themselves is a simple and attractive one. But it is about as practical as requiring thieves to register with the sheriff."

Federal court action at all levels has systematically demolished or crippled provision after provision of the 1950 act until only one remains: a section requiring the Communist Party as an organization to register as the agent of a hostile foreign power. In 1961, by a 5-to-4 decision, the Supreme Court upheld the Government's argument in principle--though without any definitive finding on the constitutional factors--and the case went back to low er courts.*

By coincidence, news of the Supreme Court's decision on individual registration came while the Government was again seeking to enforce the provision on collective registration in Federal District Court two blocks away. The Communist defense in this case had also relied heavily on the Fifth Amendment. The Government produced two witnesses who testified that, as party members, they were willing to register on behalf of the party, in effect waiving the Fifth Amendment. Both were paid FBI informers. At week's end the jury brought in a guilty verdict. Judge William B. Jones imposed a fine of $230,000--the maximum possible--and the Communists said that they would appeal.

No Outcry. Gus Hall, the party's top functionary, hailed the Supreme Court's decision as "a blow against the longest legal vendetta in American history." He said that the party would resume full-scale political activity, call a national convention, issue a manifesto for the first time since 1950, and run candidates for Congress next year. However, with hollow coffers and a membership estimated at less than 10,000, down from an alltime peak of 80,000 in 1944, the party is too feeble to make meaningful use of its reprieve.

Indeed, the most revealing aspect of last week's decision was that it stirred virtually no outcry. Senator James Eastland of Mississippi, chairman of the Judiciary Committee, made a pro forma statement about the need for new legislation to guard against subversion. But in the U.S. today--twelve years after Stalin's death, eight since Senator Joseph McCarthy's demise--there is little public or congressional demand for more anti-Communist legislation along the lines of the ill-fated McCarran Act.

* At the same time, the court virtually halted prosecution of Communists under the 1940 Smith Act (which had been used to convict 30 party leaders), ruling that mere membership in a group that seeks to overthrow the Government by force is insufficient for conviction; the Government must prove that the individual himself actively advocated violent revolution.

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