fascist, communist, or subversive, or as having adopted a policy of advocating or approving the commission of acts of force or violence to deny other persons their rights under the Constitution of the United States, or as seeking to alter the form of government of the United States by unconstitutional means; and (2) no cancellation of such designation shall have been published in the Federal Register with the exception that where, on or after the date of the enactment of this Act, any organization is so designated, it shall not be deemed to have been designated as subversive by the Attorney General for the purposes of this Act until the thirty-first day following the date on which notice of such designation is published in the Federal Register. (b) The Attorney General shall take such steps as may be necessary to insure that all officers and employees of the United States, and all individuals employed in connection with the performance of national defense contracts, shall be given reasonable opportunity to learn the names of organizations which shall have been designated as subversive by the Attorney General. SEC. 5. As used in this Act (1) The term "officer or employee of the United States" includes officers and employees of corporations wholly owned by the United States. (2) The term "organization" includes any foreign or domestic organization, association, movement, or group or combination of persons. (3) The term "to contribute funds or services" includes the rendering of any personal service and the making of any gift, subscription, loan, advance, or deposit, of money or of anything of value, and includes the making of any contract, promise, or agreement to contribute funds or services, whether or not legally enforcible. (4) The term "national defense contract" includes any contract with the United States, or any department or agency thereof, or any corporation wholly owned by the United States, for the manufacture or production of arms, armament, ammunition, munitions, or parts thereof, intended for the use of the United States in connection with the national defense. SEC. 6. The first three sections of this Act shall take effect on the thirty-first day following the day on which this Act is enacted. Mr. TAVENNER (continuing). We have a letter from Mr. Peyton Ford, the Assistant to the Attorney General, expressing his regret at not being able to appear in person but sending a written statement; and then we have one additional witness this morning. (Representative Moulder enters hearing room.) Mr. Wood. I think probably it would be better to read his statement into the record. Mr. TAVENNER. I might say, Mr. Chairman, that this statement arrived only a half hour ago, and we have endeavored to run off a few copies on a typewriter, and I think there is a copy on the desk for the members, and we have some available, I think, for the press. Mr. WOOD. I don't think there is any on the desk. STATEMENT OF PEYTON FORD, THE ASSISTANT TO THE ATTORNEY GENERAL OF THE UNITED STATES (Read by Mr. Tavenner :) Hon. JOHN WOOD, Chairman, Committee on Un-American Activities, MARCH 21, 1950. MY DEAR MR. CHAIRMAN: This is in response to your letters of March 2 and 9, 1950, requesting the views of this Department relative to H. R. 3903 and H. R. 7595, in connection with which your committee has scheduled hearings beginning March 21. H. R. 3903 would forbid any United States officer or employee or "any individual employed in connection with" national defense contracts to be or become 68369-50-2 a member of or contribute funds or services to the Communist Party or any organization designated as subversive by the Attorney General, or to advise, counsel, or urge other such persons to do or omit to do any of these prescribed acts. An organization would be considered subversive under the bill if the Attorney General has designated it as such under Executive Order 9835 and there has been no publication of the cancellation of the designation, or, following the enactment of the bill, when 31 days have elapsed following the publication of such a designation by the Attorney General. The Attorney General is directed to take such steps as are necessary to see that all persons covered by the bill are given a reasonable opportunity to learn the names of designated organizations. Under the definitions contained in the bill, the term "organization" includes foreign as well as domestic organizations; "to contribute funds or services" includes the contribution of personal services and the promise to make any contribution, whether the promise is legally enforceable or not; and "national defense contract" includes any contract with the United States or its agencies involving the manufacture of arms or munitions for national defense. A penalty section subjects violators to a $3,000 fine, 3 years imprisonment, or both. H. R. 7595, except for the addition of section 4 (f), which relates to evidence, and a phrase in sections 5 and 6 relating to registering organizations, is identical with S. 2311 which was introduced by Senator Mundt in the first session of the Eighty-first Congress. (Representatives Walter and Kearney leave hearing room.) H. R. 7595 would be cited as the Subversive Activities Control Act, 1950, whereas S. 2311 carried the same title with the designation of the year "1949." In response to the request of the chairman of the Senate Judiciary Committee, this Department submitted views regarding S. 2311 on January 4, 1950. Since there is no substantial change in the bill, you may regard that report as representing this Department's views on H. R. 7595. I am therefore enclosing for the information of your committee a copy of the report of January 4, together with a copy of the earlier letter, dated June 16, 1948, to which reference is made therein, in which Attorney General Tom C. Clark discussed the similar Mundt-Nixon bill of the Eightieth Congress in considerable detail. (Representative Walter returns to hearing room.) In this connection I take the liberty of calling attention to letters dated June 7 and June 8, 1948, respectively, from Mr. John W. Davis and Mr. Charles Evans Hughes, Jr., addressed to the chairman of the Senate Committee on the Judiciary, each of which contains rather extensive comments upon the same bill (Hearings, Committee on the Judiciary, United States Senate, H. R. 5852, 80th Cong., pp. 415–422). In your committee's consideration of H. R. 3903, it would seem well to bear in mind that while the courts have sustained the right of the United States Government to employ such persons as it chooses and to prescribe qualifications and place appropriate conditions and restraints upon their employment (Friedman v. Schwellenbach, 159 F. 2d 22, cert. den. 330 U. S. 838), a different situation exists when it is sought to extend such restraints to private citizens generally as contemplated in section 2 of the bill. The limitations imposed by this bill, which have the effect of inflicting punishment upon named groups without jury trial, should, moreover, be carefully considered in the light of the decision in United States v. Lovett (328 U. S. 303), where the Supreme Court construed the constitutional prohibition against bills of attainder and stated that the "permanent proscription from any opportunity to serve the Government is punishment, and of a most severe type" (p. 318). In this same connection, consideration should also be given to the fact that the bill contains no legislative finding that the activities proscribed present a clear and present danger to the security of the United States. In the absence of such a finding, it is doubtful that the bill would withstand a judicial test as to its constitutionality. Indeed, even were such a finding added to the bill, it is by no means certain that its constitutionality could be upheld. The important distinction between administrative measures to screen out disloyal employees or persons seeking employment in Government, such as are now utilized under Executive Order 9835, and legislation which would adopt, as in section 4 of the bill, such administrative designations for the purposes described in H. R. 3903, should also be carefully noted. A world of difference exists, from the standpoint of sound policy and constitutional validity, between making, as the bill would, membership in an organization designated by the Attorney General a felony, and recognizing such membership, as does the employee loyalty program under Executive Order 9835, as merely one piece of evidence pointing to possible disloyalty. The bill would brand the member of a listed organization a felon, no matter how innnocent his membership; the loyalty program enables the member to respond to charges against him and to show, in a manner consistent with American concepts of justice and fairness, that his membership is innocent and does not reflect upon his loyalty. The activities of Federal employees attempted to be covered by the bill appear to be restricted adequately by section 9A of the Hatch Act (5 U. S. C. 118 (j)) and by the loyalty program administered under Executive Order 9835. It is believed that the Department of Defense and the Atomic Energy Commission have also adopted certain precautionary measures covering activities of employees of those holding contracts connected with the national defense. In addition, the Smith Act (18 U. S. C. 2385) makes it a crime to advocate the overthrow of the Government of the United States by force or violence. It does not appear, therefore, necessary, even if constitutionally possible, to add to existing law and regulations at the present time a penal statute such as proposed in the bill. The foregoing comments represent the considered views of this Department, having in mind that it is the duty of the Attorney General to protect the rights of individuals guaranteed by the Constitution, as well as to protect the Government from subversion. From the latter standpoint, it should be emphasized that this Department is in complete sympathy with the efforts of the Congress to enact legislation which will serve the needs of the Government for protection against subversion. In that connection we have noted with considerable satisfaction the action taken by the House of Representatives on March 15, 1950, in passing by an overwhelming vote H. R. 4703, a bill relating to the internal security of the United States. That bill, as you know, was drawn after careful consideration of the recommendations of the Interdepartmental Intelligence Committee, composed of representatives of the Military Intelligence Division of the Department of the Army, the Office of Naval Intelligence, and the Federal Bureau of Investigation, and contains provisions for which the need has been demonstrated by the experiences of World War II and the postwar period. On February 5, 1948, Attorney General Tom C. Clark discussed that proposal with your committee while it was still in preparation. You may recall that on that occasion he urged the need of the bill that was being prepared for strengthening the arm of the Government in dealing with espionage activities. In that connection he made a number of concrete suggestions regarding helpful legislation, and at the same time directed the attention of your committee to the earlier testimony of the Director of the Federal Bureau of Investigation, in which the latter advised caution in the consideration of any legislation which would specifically deal with the Communist Party in such a way as to enable Communists to portray themselves as martyrs. This Department again urges the prompt passage by the Congress of H. R. 4703 as of the first importance. (Representative McSweeney enters hearing room.) It has been and will continue to be the policy of this Department to deal with the Communist Party by proceeding within the judicial process by means of carefully planned prosecutions and by that method to obtain in an orderly way the approval of the courts of our efforts. Appeals from the recent conviction in New York of 11 Communist leaders have been set for argument in the Court of Appeals for the Second Circuit in June. At that time some of the most important of the constitutional questions raised by the existing legislation and by bills now pending before your committee will be submitted for determination. The decision in that case will be a most important one and action which may prove to be premature in the light of its outcome should be carefully weighed. Yours sincerely, PEYTON FORD, The Assistant to the Attorney General. Mr. TAVENNER. There is attached to the letter the report of June 16, 1948, addressed to Hon. Alexander Wiley, chairman, Committee on the Judiciary, United States Senate, which is signed by Tom C. Clark, Attorney General, and which can be found in the report made on S. 2311, which has been printed. I do not know whether you desire me to read this report, which is applicable to H. R. 7595, or not. Mr. Wood. I don't believe that will be necessary, unless members of the committee desire it read. Mr. TAVENNER. There is also attached a letter of January 4, 1950, addressed to Hon. Pat McCarran, relating also to S. 2311, which, for the same reason, I suppose I should just file? Mr. WOOD. Yes. Mr. WALTER. Have you that Senate report there? Mr. TAVENNER. What I have is a preliminary draft of it, and not the final printing of it. I would like to call at this time Dr. Emerson P. Schmidt. Dr. SCHMIDT. Mr. Chairman, gentlemen of the committee. Mr. TAVENNER. Dr. Schmidt, I would like you to be sworn first. Mr. WOOD. You solemnly swear the evidence you give this committee shall be the truth, the whole truth, and nothing but the truth, so help you God? Dr. SCHMIDT. I do. TESTIMONY OF DR. EMERSON P. SCHMIDT Mr. TAVENNER. Will you please state your full name? Dr. SCHMIDT. I am Emerson P. Schmidt, director of economic research, Chamber of Commerce of the United States of America, Washington, D. C. I have been in charge of the chamber's antiCommunist work for a number of years, although I do not profess to be an expert on all these matters, as you gentlemen are. I think you have copies of my statement. Mr. TAVENNER. Dr. Schmidt, before you begin with your statement I would like to ask you a question which seems to be the accepted procedure both in the Senate and in the House when testifying on matters of this kind. Are you a member of the Communist Party, or have you ever been a member of the Communist Party? Dr. SCHMIDT. No, I am not and never have been a member of the Communist Party. Mr. TAVENNER. Proceed with your statement. Dr. SCHMIDT. In connection with the chamber's anti-Communist work, we have issued four reports: Communist Infiltration in the United States, Communists Within the Government, Communists Within the Labor Movement, and A Program for Community AntiCommunist Action. These reports have enjoyed a circulation of over one million copies. The Communist Party has repeatedly attributed the deep trouble in which it finds itself to the work of the Chamber of Commerce, which is very flattering to us, of course. The Daily Worker, February 23, 1947, in a calculated analysis of the chamber's second report, Communists Within the Government, stated: * * * the * * * First there is underway a skillful campaign to make communism major issue before the Nation. Second, the campaign is rather effective to recognize how effective the Red scare campaign has been is not defeatism * * * it is sober realism. The Daily Worker devoted at least five full pages and many editorials to analyses of our reports. It tried to provide its readers and fellow travelers with counterarguments and answers. I mention this matter because it shows the high importance and the effectiveness of the work against communism which has been carried on, not only by us but by a great many other patriotic groups and individ uals. Your committee, Mr. Chairman, has issued some excellent research studies and educational pamphlets and we hope that you will continue this educational work. Any legislation on this problem must have a strong widespread educational foundation of the conspiratorial, ruthless, materialistic, and antireligious character of communism. We are glad to have the opportunity to present our views on H. R. 3903 and H. R. 7595. The first would prohibit the employment of Communists by the Government, and the second would provide for the registration and exposure of certain Communist organizations as well as prohibit certain acts. In general, we favor the basic principles of these bills and hope that you will do everything in your power to see that adequate legislation is adopted by the House. Almost exactly 3 years ago, March 26, 1947, I testified before this committee. There is a close similarity between the provisions of H. R. 3903 and H. R. 7595 as you have drafted them and our recommendations. Whether Chairman Wood's bill (H. R. 3903) is necessary in the light of section 5 in H. R. 7595 can perhaps be much better judged by you and your staff than by us. I do, however, want to quote from my testimony of March 26, 1947 (hearings, p. 226, March 24-28, 1947), in which we said: The chamber's second report, Communists Within the Government, furnished considerable detail on Communist penetration within the Government service. First, it should be pointed out that no person has a right to a job on the Federal payroll. The Government, as an employer, has a right to establish its own standards and conditions of employment, just as it established employment conditions of private employers who furnish the Government with supplies and who do construction work for it under the Walsh-Healey Act and the Davis-Bacon Act. In the Morton Friedman case (cert. den. 330 U. S. 838) the Supreme Court, by refusing to interfere with a lower court decision upholding the right of the Civil Service Commission to discharge an employee on the grounds of sympathy with communism, appears to have settled the question of the right of the Government to establish its own standards of employment in the Government service. Turning now to H. R. 7595, the Chamber of Commerce has never believed it wise to outlaw the Communist Party and its innumerable fronts and transmission belts, partly for constitutional reasons and partly for reasons of the effective handling of this problem. We believe that this bill represents the correct approach. In our testimony 3 years ago (hearings, pp. 223 to 226), we said: Outlawing the party and similar organizations * * * might call for a vast counterespionage staff to enforce the law. There is reason to believe that outlawing the party would drive underground still further many of the Communist activities. It would make the party functionaries more subtle, more discreet and conceivably even more effective. It might give them a rallying cry, and further solidify and cement them. It might make "martyrs" of the Communists and might cause many persons to come to their rescue. Outlawing the party might conceivably give us a false sense of complacency, knowing that we have passed a law For these reasons, the board of directors of the Chamber * * * |