BILL ANALYSIS Ó SENATE JUDICIARY COMMITTEE Senator Noreen Evans, Chair 2013-2014 Regular Session AB 1405 (Committee on Judiciary) As Introduced Hearing Date: June 18, 2013 Fiscal: Yes Urgency: No RD SUBJECT Subversive Organization Registration Law: Repeal DESCRIPTION This bill would repeal the existing requirement for subversive organizations conceived for the purpose of undermining and eventually destroying the democratic form of government in this State and in the United States to register with the Secretary of State. BACKGROUND In 1941, in midst of World War II, the Subversive Organization Registration Act (SORA) was enacted in California to require the registration of organizations that may promote or seek the overthrow of the United States or California government, or that are under control of a foreign government, as specified. (SB 132 (Biggar), Ch. 183, Stats. 1941.) Since renamed as the Subversive Organization Registration Law (SORL), and largely unchanged since added to the Corporations Code in 1947, this law was "enacted in the exercise of the police power of this State for the protection of the public peace and safety by requiring the registration of subversive organizations which are conceived and exist for the purpose of undermining and eventually destroying the democratic form of government in this State and in the United States." (See Corp. Code Sec. 35000 et seq.; AB 1751 (Davis, Sherwin, Brown, Crichton, Grunksy, Ch. 1038, Stats. 1947.) For these purposes, a subversive organization is any corporation, association, society, camp, group, bund, political party, assembly, and every body of organization composed of two or more persons or members, that either or both (1) directly or (more) AB 1405 (Committee on Judiciary) Page 2 of ? indirectly advocates, advises, teaches, or practices, the duty, necessity, or propriety of controlling, conducting, seizing, or overthrowing the U.S. or California government or of any political subdivision thereof by force or violence, or (2) is subject to foreign control, as defined. This bill would repeal the SORL, in its entirety. CHANGES TO EXISTING LAW Existing law establishes the Subversive Organization Registration Law and requires every subversive organization to register and file specified information with the Secretary of State at various times, subject to public inspection. Among other things, existing law also prohibits any subversive organization from sending, delivering, mailing, or transmitting, or suffering or permitting to be sent, delivered, mailed, or transmitted, to any person in this State who is not a member of the organization any anonymous letter, document, leaflet, or other written or printed matter. (Corp. Code Sec. 35000 et seq.) Existing law provides that any subversive organization which violates any provision of this law, and any officer or member of the board of directors, board of trustees, executive committee, or other governing body of a subversive organization that violates any provision of this law or permits or acquiesces in the violation of any provision of this law, is guilty of a felony, as specified. 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 law, is guilty of a misdemeanor, as specified. (Corp. Code Secs. 35300, 35301, 35302.) Existing law defines "subversive organization" to mean every corporation, association, society, camp, group, bund, political party, assembly, and every body or organization composed of two or more persons or members, which comes within either or both of the following descriptions: which 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; or which is subject to foreign control, as defined. (Corp. Code AB 1405 (Committee on Judiciary) Page 3 of ? Sec. 35002.) Existing law provides that an organization is "subject to foreign control" if either: 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 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; or 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. (Corp. Code Sec. 35003.) Existing law exempts from the definition of subversive organization any labor unions, religious, fraternal, or patriotic organizations, societies, or associations whose objectives and aims do not contemplate the overthrow of the U.S. or California government, or of any political subdivision thereof by force or violence. (Corp. Code Sec. 35004.) This bill would repeal the Subversive Organization Reorganization Law in its entirety. COMMENT 1. Stated need for the bill According to the author: Among other things, the [Subversive Organization Registration Law (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. AB 1405 (Committee on Judiciary) Page 4 of ? First, the SORL is likely unconstitutional and violates protections of free speech, freedom of association, and political affiliation. Second, given the vagueness of some of its language, the SORL creates a real potential for abuse 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. [This bill] repeals the [SORL]. In support of the bill, the American Civil Liberties Union writes that "[t]his bill properly repeals antiquated and unconstitutional language related to registration of so called 'subversive' groups. This statute is an unnecessary statutory remnant of the McCarthy era and is inconsistent with constitutional protections of free speech, freedom of association, and political affiliations." 2. Existing law's Subversive Organization Registration Law is likely ineffective, if not unconstitutional This bill would repeal the Subversive Organization Registration Law (SORL) that, together with its predecessor act, for over 70 years, has required organizations seeking to advocate the violent or forceful overthrow this State's or the U.S. government, or that are otherwise subject to control of a foreign country, to register and file certain information with the Secretary of State (SOS), subject to specified criminal penalties. Of note, existing law does not prohibit these entities from existing or even prohibit attempts to overthrow the government by force or violence. Rather, the SORL makes these entities and its members subject to specified crimes, including the possibility of a felony that is punishable by up to $10,000 or imprisonment, or both, for failure to comply with the registration requirements of the bill or failure to comply with the prohibition against distribution of written materials to non-members. The author asserts that, in doing so, this law arguably violates the First Amendment protections of free speech and the right of association. Again, the law does not actually prohibit these AB 1405 (Committee on Judiciary) Page 5 of ? organizations from existing or assembling or engaging in speech advocating the overthrow of government-it prohibits them from doing so without properly registering with the SOS. That being said, the SORL does prohibit these organizations from engaging in speech insofar as it prohibits the distribution of anonymous letters, leaflets, documents or other written or printed matter to any person in this State who is not a member of the organization. The argument could also be made that this law also violates the First Amendment by seeking to discourage any organizations from formulating and engaging in speech that criticizes their government in violation of the First Amendment, not to mention it appears to promote blacklisting reminiscent of the McCarthy era, as noted by the ACLU in Comment 1, above. Unlike other corporation laws that require registration of specified business entities or nonprofits, irrespective of their purpose, the SORL appears to target and require the registration of organizations - again, subject to criminal penalties - because of their anti-government viewpoint. Furthermore, it is appears unlikely that any group truly seeking to overthrow, or advocate the overthrow of, the state or the U.S. government, by force or violence, would openly register with the Secretary of State or other governmental entity-even at risk of incurring fines or imprisonment. To that end, Committee staff is unaware of any subversive organizations that have actually filed with the Secretary of State in the last 68 years under this law. It is more likely that the law would be used against those organizations that are critical of their government, but do not seek to advocate the violent or forceful overthrow of that government. In fact, the only case law that staff and the author are aware of involves a 1945 case, People v. Noble (1945) 68 Cal.App.2d 853, relating to the 1942 indictment of a group of individuals under the SORA for failure to comply with the act as members of the governing body of an organization called "Friends of Progress," which was shown to be supportive of Mussolini, Hitler and Nazi Germany, as well as Japan after the attack on Pearl Harbor. (The evidence also showed that the defendants/appellants were sympathizers or members of the German-American Bund, which was an American fascist organization that was sympathetic to Hitler and sought "to promote the interest of the Third Reich in America and to bring about a closer appreciation of German culture by the people of America." (Id. at 860).) There, the Court of Appeal expressed contempt for the statements, actions, and conduct of the appellants, but nonetheless reversed the AB 1405 (Committee on Judiciary) Page 6 of ? conviction as the evidence did not show that the members sought to overthrow the government by force or violence, or were subject to foreign control. (Id. at 886-890.) Interestingly, while the court never reached the question of constitutionality of the act, the court made note that they "are in grave doubt as to the constitutionality of the [SORA]" in terms of the act's potential conflict with federal law under the Supremacy Clause. (Id. at 892.) Presumably, similar questions of constitutionality would exist with the current SORL. This bill would remove any doubts as to the efficacy and constitutionality of this by repealing the SORL, in its entirety. Support : American Civil Liberties Union Opposition : None Known HISTORY Source : Author Related Pending Legislation : None Known Prior Legislation : None Known Prior Vote : Assembly Floor (Ayes 69, Noes 0) Assembly Appropriations Committee (Ayes 16, Noes 0) Assembly Judiciary Committee (Ayes 8, Noes 0) **************