Exercise in Futility

The Subversive Activities Control Board, which Congress set up in 1950 to force Communists to register, has become the Federal Government's best-known on-the-job retirement program. Though inspired by the McCarthy era, when it was designed as a key Red hunter, the board has never registered a single subversive, much less controlled one. Most of its activity has been confined to watching lawyers battle over its right to survive.

Last week the Supreme Court declined to bother with what may be the final battle. It refused to review a lower-court ruling that barred the board from labeling individuals as members of the Communist Party. In his petition for review, Solicitor General Erwin Griswold had warned that if the ruling were allowed to stand, it would cause "the frustration of the Subversive Activities Control Board's reason for existence." The Supreme Court accepted the risk and virtually stripped the SACB of power and function.

Hopeless Impasse. From its inception, the board has been on a collision course with the Constitution. In 1965, the Supreme Court ruled that the Fifth Amendment privilege against self-incrimination entitled individuals to refuse to register with the board. Two years later, a U.S. Appeals Court flatly declared that the statute provision requiring the Communist Party to register with the Government was "hopelessly at odds" with the Fifth Amendment.

Board Chairman John Mahan ruefully confessed to a congressional committee that he and his four fellow members devoted much of their well-paid time (salary: $36,000 a year) to the study of hostile federal court decisions. Instead of fighting Communism, the board kept busy coping with bad publicity, such as the 1967 news that President Johnson had levitated the 29-year-old husband of one of his favorite secretaries to a board sinecure.

In 1967, congressional liberals tried to get the board abolished. It had not held a hearing for 15 months, yet its ever rising budget stood at nearly $300,000 a year. Congress responded by amending the registration statute to avoid the self-incrimination problem. Under the new system, the board was not authorized to force Communists to register; instead, it was supposed to publish their names in the Federal Register. All this produced a list of seven alleged Communists--none of them more than minor functionaries.

Free Association. Three of them duly challenged their labeling on the grounds that it subjected them to public harassment and violated the First Amendment right of free association. Ruling in their favor last December, the U.S. Court of Appeals for the District of Columbia held the new system unconstitutional, because it failed to distinguish between Communists who seriously intend to carry out the party's unlawful aims, such as overthrowing the Government, and those who are interested only in its legal and constitutionally protected goals. "The public interest in exposure of the guilty," the court said, "cannot be used to justify exposure of the innocent."

The board is still in business, insist its members. It can, to be sure, still pin a Communist label on any group, but it cannot name individual members. In fact, the board has become a monument to futility--and to the courts' determination to defend the rights of all individuals, even those who are unpopular.

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