A lifetime ago, when the U.S. was locked in a Cold War with the Soviet Union and fear of communist infiltrators ran rampant, California passed a law making anyone who belonged to the Communist Party ineligible to work for state government. Not just in sensitive positions, but even as groundskeepers at state parks, on road crews for the Department of Transportation or as clerks in the Department of Insurance. It was a preposterous policy that trampled Americans’ 1st Amendment rights to free speech and assembly.
Remarkably, that relic of the Red Scare remains on the books, though it is no longer enforced. California law still says that a worldwide movement dedicated to the precepts of Marx, Lenin and Stalin is working to establish a global totalitarian dictatorship through tactics of force, violence, treachery, deceit and disloyalty — and that there is a “clear and present danger” that is both “great and imminent” that communists in California will infiltrate state government to impede and nullify its activities.
That’s obviously ridiculous in this day and age, and California Assemblyman Rob Bonta (D-Oakland) was eager to remove the unenforceable language through his proposed legislation, AB 22. Then, on Wednesday, he backed down after conversations with war veterans and members of the Vietnamese-American community, who related “compelling stories of how AB 22 caused real distress and hurt for proud and honorable people.”
That was exactly the wrong response.
Not because there’s much to be said in communism’s defense. As a political philosophy, it is bankrupt. Over the past century it has given rise to totalitarian regimes from the Soviet Union and Eastern Europe to Cambodia and has led to the deaths of tens of millions of people through brutal purges, starvation policies and war. Many members of California’s Vietnamese community have an understandable hatred for a system that made refugees of them, and maintained repressive control of their native country for four decades. The hostility of veterans is understandable as well. The U.S. military engaged directly in wars against communist forces in Korea and Vietnam and waged a long Cold War against Russia. Many service members have died, been wounded or suffered physical and mental injuries in those causes.
But the Cold War is over, the language is now toothless — and the underlying threats used to justify the law do not exist. The law was a violation of Americans’ 1st Amendment rights to free speech and assembly, as courts eventually concluded. As Bonta pointed out, the employment ban has been declared unconstitutional, so why not strip the language from the books?
The employment ban was created by a 1950 state law (which mirrored a federal requirement) compelling government employees to sign loyalty oaths pledging to defend the state and federal constitutions, and to attest that they were not members of the Communist Party or any other organization advocating the overthrow of the government. It was unquestionably ineffective at deterring subversion — a violent revolutionary surely wouldn’t let a simple oath derail a plot to upend the social order. But many of those who refused to sign the oath on principle often found their lives upended and their careers destroyed through blacklisting.
While courts initially upheld the employment restrictions, the U.S. Supreme Court began ruling in the 1960s that employment bans based on Communist Party membership, or on membership in an organization that advocates overthrowing the government, were unconstitutional. Talk, belief and advocacy are protected; action and incitement are not.
AB 22 would have rescinded the employment ban and stripped out other related language. But even then, Bonta’s bill didn’t go far enough because it retained language putting a broad restriction on hiring someone who “advocates or is knowingly a member of an organization that...advocated the overthrow of the Government of the United States or of any state by force or violence.” That still violates the 1st Amendment.
Bonta should revive the bill — and expand it to remove any other bans on employment based on what are constitutionally protected rights. And while the legislature fixes that Cold War overreach, it ought to also take steps to do away with the silly and antiquated loyalty oath. It may make sense to require elected officials, judges and police to pledge to uphold the state and federal constitutions that are the foundations of their work, but it’s ludicrous to exact such a pledge from every government employee — especially since non-citizens are exempted.