BILL ANALYSIS Ó AB 1405 Page 1 Date of Hearing: April 30, 2013 ASSEMBLY COMMITTEE ON JUDICIARY Bob Wieckowski, Chair AB 1405 (Committee on Judiciary) - As Introduced: March 12, 2013 SUBJECT : SUBVERSIVE ORGANIZATION REGISTRATION LAW: REPEAL KEY ISSUE : SHOULD THE ANTIQUATED, INEFFECTIVE, AND LIKELY UNCONSTITUTIONAL WORLD WAR II ERA STATUTE KNOWN AS THE SUBVERSIVE ORGANIZATION REGISTRATION LAW BE REPEALED? FISCAL EFFECT : As currently in print this bill is keyed fiscal. SYNOPSIS This non-controversial Committee bill seeks to repeal the World War II era Subversive Organization Registration Law (SORL). Under the SORL, a "subversive organization" is defined as a group of at least two persons which advocates for the violent overthrow of the government, or that is subject to "foreign control," as defined. Among other things, the SORL requires subversive organizations to file with the Secretary of State information identifying the times and places of its meetings, the names of its officers and members, and copies of any literature that it distributes to its members or that its members distribute to others. The SORL should be repealed because it is likely unconstitutional, contains vague language that creates the potential for abuse against some organizations, and has been demonstrated to be both unutilized and completely ineffective in nature. The bill is supported by the ACLU, who also shares concerns about the constitutionality of the SORL, and it has no known opposition. SUMMARY : Repeals the Subversive Organization Registration Law (Title 5 of the Corporations Code, commencing with Section 35000) in its entirety. EXISTING LAW, the Subversive Organization Registration Law: 1)Defines "subversive organization" to mean every corporation, association, society, camp, group, bund, political party, assembly, and everybody or organization composed of two or more persons or members, which either: AB 1405 Page 2 a) Directly or indirectly advocates, advises, teaches, or practices, the duty, necessity, or propriety of controlling, conducting, seizing, or overthrowing the Government of the United States, of this State, or of any political subdivision thereof by force or violence. b) Is subject to foreign control, as defined. (Corporations Code Section 35002. Unless otherwise stated, all further references are to this code.) 2)Provides that an organization is "subject to foreign control" if it comes within either of the following descriptions: a) It solicits or accepts financial contributions, loans, or support of any kind directly or indirectly from, or is affiliated directly or indirectly with, a foreign government or a political subdivision thereof, an agent, agency, or instrumentality of a foreign government or political subdivision thereof, a political party in a foreign country, or an international political organization. b) Its policies, or any of them, are determined by or at the suggestion of, or in collaboration with, a foreign government or political subdivision thereof, an agent, agency, or instrumentality of a foreign government or a political subdivision thereof, a political party in a foreign country, or an international political organization. (Section 35003.) 3)Provides that "subversive organization" does not include any labor union or religious, fraternal, or patriotic organization, society, or association whose objectives and aims do not contemplate the overthrow of the Government of the United States, of this State, or of any political subdivision thereof by force or violence. (Section 35004.) 4)Requires every subversive organization within 10 days after its organization to file with the Secretary of State specified information and documents, including among other things: a) The names and addresses of all its branches, chapters, and affiliates. b) The nature and extent of its existing and proposed aims, AB 1405 Page 3 purposes, and activities. c) The times and places of its meetings. d) The description and location of the property it owns, its assets and liabilities, the methods for the financing of its activities, and the names and addresses of all persons, organizations, and other sources who or which have contributed money, property, literature, or other things of value to the organization. e) The organization's charter, articles of association, or constitution, and its by-laws, rules, and regulations. f) Each agreement, resolution, and other instrument or document relating to its organization, powers, and purposes and the powers and duties of its officers and members. g) Each book, pamphlet, leaflet, or other printed, written, or illustrated matter directly or indirectly issued or distributed by it or in its behalf, or to or by its members with its knowledge, consent, or approval. (Section 35100.) 5)Requires every subversive organization, at least once in each period of six months, to file with the Secretary of State a statement subscribed under oath by all of its officers showing the names and residence addresses of all persons who have been admitted to membership during that period or, if no members have been admitted during that period, a statement to that effect similarly subscribed. (Section 35103.) 6)Provides that any subversive organization which violates any provision of this title is guilty of a felony punishable by fine of not less than one thousand dollars ($1,000) nor more than ten thousand dollars ($10,000). (Section 35300.) 7)Provides that any person who becomes or remains a member of any subversive organization, or attends a meeting thereof, with knowledge that the organization has failed to comply with any provision of this title, is guilty of a misdemeanor punishable by fine of not less than twenty dollars ($20) nor more than one thousand dollars ($1,000), or by imprisonment in the county jail for not less than 10 days nor more than one year, or by both. (Section 35302.) COMMENTS : This bill seeks to repeal the World War II era Subversive Organization Registration Law (SORL). The SORL has a number of characteristics that recommend its repeal. First, the SORL is likely unconstitutional. Second, given the vagueness of some of its language, the law creates a real potential for abuse AB 1405 Page 4 against groups that may have unpopular political views. Finally, as over sixty years of experience have demonstrated, the SORL is an outdated, unutilized, and ineffective statute. Constitutionality concerns. The constitutionality concerns raised by the SORL are myriad. Among other things, the SORL requires a subversive organization to file with the Secretary of State information identifying the times and places of its meetings, the names of its officers and members, and copies of any literature that it distributes to its members or that its members distribute to others. It also provides that any person who becomes or remains a member of any subversive organization, or attends a meeting thereof, with knowledge that the organization has failed to register with the Secretary of State or comply with other requirements, is guilty of a misdemeanor punishable by fine or imprisonment. As succinctly summarized by the American Civil Liberties Union (ACLU) in its letter of support, the SORL certainly appears to be "inconsistent with constitutional protections of free speech, freedom of association, and political affiliations." The only case law involving the SORL that the Committee is aware of is People v. Noble (1945) 68 Cal. App. 2d 853. In 1941, Robert Noble and several other individuals were indicted for violating the SORL. The defendants were active in a pro-German group called the Friends of Progress that had expressed some sympathy for Nazi Germany and Imperial Japan, but there was not sufficient evidence that they sought to overthrow the government or that they were controlled by, or worked in collaboration with, either of those governments. Because the convictions were overturned for lack of evidence, the Court of Appeal deemed it unnecessary to decide the constitutional question, but did express "grave doubt" even almost 70 years ago as to the constitutionality of the SORL. Vague language and potential for abuse. Among other problems, the definition of "subversive organization" under the SORL includes either: (1) a group that seeks to overthrow the government; or (2) a group that is "subject to foreign control," which in turn is defined very broadly to mean, not just under the control of a foreign nation, but even following the "suggestion" of any "international political organization." The use of the disjunctive term "either" suggests that the law would apply to a group following the suggestion of any international organization, even if was peaceful and did not advocate AB 1405 Page 5 overthrowing the government. (Section 35002, emphasis added.) But the SORL also specifies that a "subversive organization" does not include any labor union, religious organization or any other group that "does not contemplate the overthrow of the Government . . ." (Section 35004) - which makes the effect of the "either" in Section 35002 unclear and confusing. The unclear application of the SORL to various organizations is especially problematic because the law makes failure to register a felony subject to a fine, and even possible imprisonment for officers of the organization. The vague language of the statute creates a real potential for abuse because it may permit prosecution or other action to be taken against some organization or group of persons where there might not be any other clear grounds for doing so, merely for the reasonable failure to "register" when potentially required to do so. Demonstrated ineffectiveness and nonuse . The SORL is an ineffective statute because it is not expected that any group that actually poses a threat to overthrow the government by violence would ever register, or even have any qualms about not registering. Reportedly, no subversive organizations have actually even filed with the Secretary of State in the past 68 years pursuant to the SORL, suggesting that in fact, the statute is both ineffective and ignored, with good reason. In support, the ACLU calls the SORL an "antiquated and unconstitutional" statute that "is an unnecessary remnant of the McCarthy era." REGISTERED SUPPORT / OPPOSITION : Support American Civil Liberties Union (ACLU) Opposition None on file Analysis Prepared by : Anthony Lew / JUD. / (916) 319-2334 AB 1405 Page 6