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  
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          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  
                                                                      



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            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.  
                                                                      



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            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  
                                                                      



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          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  
                                                                      



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          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)

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