The Courts & the Committee

The last five years have shown that the House Un-American Activities Committee can survive and even prosper without the full thrust of nationwide McCarthyism. Congressmen are scared to oppose the committee because they know such a move would cost them ten-fold the number of votes they might gain. The courts, while increasingly unwilling to convict uncooperative HUAC witnesses of contempt, are even less willing to pass judgment on HUAC constitutionality -- for fear that in so doing they would spur a major confrontation between Congress and the judiciary over the separation-of-powers issue.

Just such a confrontation has been long in the making. In 1957 the Supreme Court reversed the contempt conviction of John T. Watkins, a United Auto Workers organizer, on the narrow grounds that HUAC had not made clear either the purpose of its hearings or the relevance of Watkins' testimony. Although the decision did not rest on the larger points posed by Watkins' lawyers, it succeeded in arousing considerable opposition from members of Congress who contended the court was interfering with legislative procedure.

Confrontation Avoided

Two years later a five-to-four majority upheld the conviction of Lloyd Barenblatt, former instructor at Vasser who refused on first amendment grounds to answer questions about alleged Communist affiliations. Aside from the technical point which the Court had cited in the Watkins case, Barenblatt's suit was fundamentally the same. Thus Congress was reassured that the Watkins decision represented no broad judicial opinion on HUAC proceedings, and a confrontation between the two branches was avoided.

Since Barenblatt, the Supreme Court has consistently found technical reasons for dismissing contempt charges, and the American Civil Liberties Union has been repeatedly foiled in its attempt to secure a broad decision as to HUAC's constitutionality.

But last week Federal Judge Howard Corcoran broke form and ordered HUAC to post-pone an investigation into the left fringe of the anti-war movement until a special three-judge court could hear a new ACLU suit against the committee. In the twenty-four hour period before the three-judge panel vacated Corcoran's order, Congressional reaction and in particular HUAC's decision to go ahead with hearings anyway demonstrated that a Court decision declaring HUAC's unconstitutionality would not be taken sitting down. It also seemed evident that many anti-HUAC Congressmen, assuming they exist, would give higher priority to Congressional sovereignty than to how they felt about HUAC.

This kind of indignant Congressional reaction against judicial "interference" has been commonly cited as an argument against the Supreme court taking a broad stand against HUAC at the present time. Congress can by a variety of means put serious limitations on the authority of the Federal courts, and it is suggested that by holding HUAC unconstitutional the Supreme Court would solidify Congress behind the committee while at the same time hamper its own effectiveness.

"Chilling Effect"

The ACLU suit, however, is based on a Supreme Court decision of April, 1965, (Dombrowski, vs. Pfister) in which the Court ruled that Louisiana anti-subversive laws had a "chilling effect" on free speech; thus the two who brought the suit were not even required to undergo prosecution because, the majority opinion asserted, trying them would infringe on their first amendment rights -- regardless of the verdict.

The Supreme Court undeniably functions as a political beast at times, stepping only so far as the climate will permit. Such considerations have been the major factor in stalling a decision on HUAC's constitutionality since one was first sought fifteen years ago. Also the present investigation -- in which an actual piece of legislation is involved for a change -- is not the best for the ACLU's purposes.

But this would be the wrong time for the judiciary -- and specifically the three-man panel which will begin hearing evidence on the HUAC case this week -- to balk at risking a confrontation. For it is HUAC, and not one Court, which has violated the separation of powers, by becoming a mechanism, in Justice Black's words, of "exposure for exposure's sake." As Black stated in dissenting from the majority opinion in Barenblatt, "all the questions in this case really boil down to one -- whether we as a people will try fearfully and futilely to preserve democracy by adopting totalitarian methods, or whether in accordance with our traditions and our Constitution we will have the confidence and courage to be free."