The Communist Party Gets the Boot
In 1954, something unprecedented happened in American politics. President Dwight Eisenhower signed into law the Communist Control Act on August 24, 1954, that outlawed the Communist Party USA and criminalized membership in or support for the party or “Communist-action organizations”. The law didn’t just restrict or regulate the party – it completely banned it from existence.
The Communist Control Act characterized the Communist Party as an “agency of a hostile foreign power” and described it as an “instrumentality of a conspiracy to overthrow the government” and a “clear, present, and continuing danger to the security of the United States”. In outlawing the Communist Party, the act denied the party the right to have bank accounts, enter into leases, obtain judicial enforcement of contracts, sue or be sued in courts, appeal adverse court rulings, conduct business activity, or appear on any ballot.
What Made This Different From Regular Politics
The government didn’t just declare the Communist Party illegal because they disagreed with their ideas. The act declared that “The Communist Party of the United States, though purportedly a political party, is in fact an instrumentality of a conspiracy to overthrow the Government of the United States”. Think of it like calling someone who pretends to be a doctor but actually sells poison – they might look legitimate on the surface, but their real purpose is destructive.
Unlike political parties, which evolve their policies and programs through public means by reconciling individual views and submitting those policies to the electorate, the policies and programs of the Communist Party were secretly prescribed by foreign leaders of the world Communist movement. Unlike members of political parties, members of the Communist Party were recruited for indoctrination and organized to carry out assignments from their hierarchical leaders, and the Communist Party acknowledged no constitutional or statutory limitations upon its conduct.
The Red Scare Context Behind the Ban
The act was created during the Second Red Scare period from 1946 to 1954, as one of many bills drafted to protect the American government from the alleged threat posed by international communists. Although Senator Joseph McCarthy had been disgraced earlier in 1954 when he tried to prove communists were in the U.S. Army, most Americans still believed communists were at work in their country, and Congress responded to this fear by passing the Communist Control Act.
Historian Mary McAuliffe noted the overwhelming support from liberals, arguing that the perceived gravity of the Communist threat during the Cold War led some liberals to ignore that the act suspended citizenship rights of Communist Party members, with most liberal Democrats ardently supporting rather than opposing the act. McAuliffe acknowledged that the act “served to avert possible disaster for individual politicians” who feared being labeled as Communists for their left-minded ideas.
State-Level Attempts at Banning
Multiple states, including California, directly banned the Communist Party USA while other states indirectly did so by banning parties that supported overthrowing the government using violence, and Communist candidates were removed from ballots in Arizona and Georgia in 1940. State officials ruled these candidates couldn’t honestly take the oath to uphold the Constitution.
Some states like Texas made laws that effectively banned communists by defining “a communist” as someone who commits sedition and barring such communists from office or government work, similar to making a law seemingly banning Buddhists by defining Buddhists as those who commit acts of bribery. These were political stunts rather than actual party bans.
The White Primary Ban – A Different Kind of Political Restriction
States like Texas attempted to ensure White control of politics first by enforcing racial restrictions at the state-run Democratic primary level, then claiming the Democratic Party was a private organization that could select its own voting membership, implicitly including White supremacy, until Smith v. Allwright in 1944 banned that outright. This wasn’t exactly banning a political party, but it was banning certain political practices.
In the “White Primary Cases” from Texas in the 1920s to 1940s, the Supreme Court initially vacillated between ruling that Democratic Party primaries were private and could exclude African Americans, but eventually in United States v. Classic (1941) and Smith v. Allwright (1944), ruled that party primaries were subject to regulation and African Americans could not be barred from participating.
FBI Opposition to the Communist Ban
The Federal Bureau of Investigation and its director, J. Edgar Hoover, actually opposed the Communist Control Act on the grounds that it would force the Communist movement underground. This might sound strange – why would the FBI oppose banning communists? The answer reveals something important about how law enforcement actually works.
The Justice Department ignored the act and pushed no general test of its provisions in court, and the act summarized the official policy toward the Communist Party at the time – to keep it legal enough for successful prosecution of its illegalities. It’s like keeping a suspect where you can watch them instead of forcing them to hide completely.
Constitutional Problems with the Ban
The Michigan Law Review argued that the politically charged Act was plagued by constitutional problems that would undermine its effectiveness, while the Yale Law Journal called it the “most direct statutory attack on internal communism yet undertaken by Congress” but stressed the “haste and confusion” of the act’s passage. The measure raised grave constitutional questions under the First Amendment, Fifth Amendment, and the ban against bills of attainder.
In 1972, Communist Party candidates in Arizona filed suit alleging the statutes constituted bills of attainder and violated the Constitution, claiming denial of due process rights under the Fifth and Fourteenth Amendments and violations of the Equal Protection Clause and First Amendment, and in 1973, a Federal District Judge ruled the statutes violated the Constitution.
The Act’s Limited Real-World Impact
While the Communist Control Act declared the Communist Party should be outlawed, the act itself didn’t take this decisive step, and in subsequent years, the Communist Party of the United States continued to exist, although the government used legislation to harass party members. More ominously, the government also used such acts to investigate and harass numerous other organizations deemed to have communist “leanings,” including the American Civil Liberties Union, labor unions, and the NAACP.
A tiny remnant of the party continued to exist into the twenty-first century under its lifetime leader, the octogenarian Gus Hall, maintaining a website but not participating in any federal or gubernatorial elections in 2002. Today, the Communist Party of the United States continues to exist and regularly runs candidates for local, state and national elections.
Why American Political Parties Are Actually “Illegal” in a Different Sense
Creating a formal political party which exerts control over candidates is actually illegal in the United States – not merely difficult, but actually illegal. This sounds backwards, but here’s what it means: traditional political parties in other countries can choose their own candidates and kick out members who don’t follow party lines.
The only legally allowed way to select candidates is through state-sponsored formal elections called “primaries” run according to state rules, and if a party wants to select candidates at its annual convention after political debate, that’s illegal because the state doesn’t care for smoke-filled room candidate selection processes from the Progressive Era. American parties are more like loose coalitions than disciplined organizations.
Modern Restrictions and Ballot Access
There are various ways that majority parties could effectively ban rival political parties, including establishing thresholds for appearing on the ballot – which already happens in presidential races and was part of why Kanye West didn’t appear as a presidential candidate in all states – requiring parties to demonstrate public support before being allowed to register. These aren’t outright bans, but they create significant barriers.
In Buckley v. Valeo (1976), the Supreme Court upheld a law mandating that a political party had to receive at least 5 percent of the popular vote in a presidential election to be eligible for public funding, even though minor political parties contended that the 5 percent threshold violated their First Amendment rights. The electoral system already makes it very difficult for third parties to emerge without needing to ban them outright.
First Amendment Protections Today
Political parties enjoy significant protection under the First Amendment, though it’s not always clear who is the “political party” and who can assert First Amendment rights. A state cannot ban a political party for being a political party – this would run headlong into the First Amendment so hard it would go viral on social media.
The First Amendment has been used to strike down state laws banning political parties from making political endorsements in Eu v. San Francisco County Democratic Central Committee (1989), and to void state laws creating “open primaries” where anyone could vote in party primaries in California Democratic Party v. Jones (2000). Substantial or “invidious” discrimination between political parties may violate the Equal Protection Clause, and states may not enact regulations so severely burdensome that they make ballot access or party formation “virtually impossible”.
The Legacy and Modern Implications
By the mid-to-late 1960s, the Red Scare had run its course and a more liberal Supreme Court began to chip away at the immense tangle of anticommunist legislation that had been passed during the 1940s and 1950s. Congress repealed most provisions of the Communist Control Act, which has rarely been enforced.
Despite the act’s irrelevance domestically, the controversy over its consistency with democratic principles has important international implications, as many nations have laws outlawing totalitarian organizations, and the United States may need to take positions on whether democratic principles give legitimacy to fundamentalist movements that seek political power through legal means only to crush democracy – making the Communist Control Act a precedent for not tolerating intolerant political movements.
The United States has rarely banned political parties outright, with the Communist Control Act of 1954 standing as the most significant example. Even then, the ban was more symbolic than effective, and the party continued to exist in practice. The real restrictions on American political parties come not from outright bans, but from the unique legal structure that prevents parties from operating like traditional political organizations found elsewhere in the world.
