MEMORANDUM IN BEHALF OF THE NATIONAL LAWYERS GUILD IN OPPOSITION TO H. R. 804

H. R. 804 is a bill which, if it became law, would be undemocratic, unconstitutional, antialien, and a serious interference with the war effort.

In brief, it provides that no alien member of a labor organization could vote in a union election for union representatives, nor upon any question of union policy. The labor organization is made responsible that its members should not violate any of these provisions.

Such a bill would first of all make it necessary for every labor organization to make an extensive inquiry into the personal facts about its members. Necessarily the members would have to make proof of their citizenship. In connection with defense work or the Army, this has proved a serious difficulty. For the countless members of a labor organization it would prove almost insurmountable. Thirty million Americans cannot prove their birth in this country because records are not available. The net result must be that labor organization could only include among its members persons who could prove that they are citizens of the United States, not merely persons who are in fact citizens. Alien registration proved a tremendous task for the Government of the United States. There were less than 500,000 aliens. There are 10,000,000 members of labor unions. A similar registration would be required of the most insignificant labor organization. The bill goes even further the Federal registration permitted registration to those whose citizenship status was in doubt. Union members would have to establish citizenship to function in their organizations. Where there was any doubt, the member would have to be deprived of his rights if the union was not to be subjected to the penalty of $5,000 which would serve to bankrupt the average organization.

One of the first results of any such bill would be the intensification of the existing discrimination of aliens in employment. At the present time the foreignborn are having so much difficulty securing employment that it became necessary for the President of the United States to make a statement urging no discrimination in their employment, and specially giving the President's Committee on Fair Employment Practices jurisdiction. On July 11, 1942, he wrote:

"Persons should not hereafter be refused employment, or persons at present employed discharged, solely on the basis of the fact that they are aliens or that they were formerly nationals of any particular foreign country. A general condemnation of any group or class of persons is unfair and dangerous to the war effort."

After this statement the Fair Employment Practice Committee has attempted to prevent discrimination against aliens in employment. The purpose of the President's Executive Order 8066 and his statement, as well as the activities of the Fair Employment Practice Committee, were plainly directed not to helping alien residents of this country, but to advancing the war effort by making all manpower available for employment, whether citizen or alien. H. R. 804 would interfere seriously with effecting this result.

In the United States it has been our proud boast that we make no arbitrary distinctions between the alien and the citizen. In the case of Traux v. Raich (239 U. S. 33) Chief Justice Hughes recognized that the alien has all the rights of the citizen except the right to vote or hold office. This is no time to imitate the Nazi in recognizing a superior and an inferior group. More than ever all workers interested in doing their part in the war effort should be treated justly and equally.

The National Labor Relations Act, both as written and as construed (see especially Jones & Laughlin Steel Co. v. N. L. R. B. (301 U. S. 1-1937), emphasizes the right of workers to bargain collectively through representatives of their own choosing. This bill seeks definitely to prevent this, to require workers to be limited in their selection of representatives.

There has been some criticism of labor unions for not being representative of their membership. There has been a demand for more democracy in the unions. This bill by taking the voice and vote from alien members is a step in the wrong direction, and an interference with the democratic functioning of labor organizations.

Finally, the bill is unconstitutional. The authorities have recognized that the protection of the Bill of Rights, and of their constitutional guaranties should and do apply to aliens as completely as to citizens.

U. S. Department of Justice, Donald R. Perry, Chief Alien Registration Division, Report on Registration, December 11, 1941.

Russian Fleet v. United States (282 U. S. 481); Wong Wing v. United States (163 U. S. 228); Yick Wo v. Hopkins (118 U. S. 356); Japanese Immigrant Case (189 U. S. 86, 100-101); Chin Yow v. United States (208 U. S. 8); Truax v. Raich (239 U. S. 33); Alexander, "Rights of Aliens under the Federal Constitution" 95; 31 Yale L. J. 422 (1922); Reuben Oppenheimer, "The Constitutional Rights of Aliens," 1 Bill of Rights Review 100, 107-111.

Such a bill as H. R. 804, if it became law, would plainly infringe the right of assembly, because it would interfere with securing members for the labor organization. Herndon v. Lowry (301 U. S. 242).

No less would it interfere with free speech and free press, by its inhibition against aliens formulating policy and voting for labor representatives. Jones & Laughlin Steel Co. v. N. L. R. B., supra; Herndon v. Lowry, supra.

Quite as plainly it would interfere with the freedom of alien members of labor organizations to take part in formulating and voting for terms of employment, i. e., it would interfere with freedom of contract. Meyer v. Nebraska (262 U. S. 262 U. S. 390); Pierce v. Society of the Sisters of the Holy Name (268 U. S. 510); New State Ice Co. v. Liebmann (285 U. S. 262).

It should be remembered that "restraints must not be arbitrary or unreasonable. Freedom is the general rule, and restraint the exception." Wolf Co. v. Industrial Court (262 U. S. 522, 534).

Finally the provision for punishing the organization for a violation by one or more of its members, whether or not the organization knows that there is such a violation is contrary to well-established American principle that guilt is personal. Chaffee, "Free Speech in the United States," 167.

Memorial presented by the Special Committee of the Association of the Bar headed by Charles Evans Hughes to the Assembly of the State of New York in connection with the ouster of the Socialist Assemblymen in 1920 (Legislative Document No. 30, p. 4). Shaw v. Oklahoma (134 P. (d) 999).

Punishment not for one's own acts but for the acts of another is a denial of due process. De Jonge v. Oregon (299 U. S. S. 353); Fiske v. Kansas (274 U. S. 380, 385, 386); Dahnke-Walker Milling Co. v. Bondurant (257 U. S. 282, 288289).

That this bill is unconstitutional is a mere technical objection to it. Far more serious is its social undesirability. We strongly urge that H. R. 804 be disapproved before it has done any more substantial damage. It should never have been introduced.

Respectfully submitted,

MARTIN POPPER,

National Executive Secretary, National Lawyers Guild, New York City.

Hon. MARY T. NORTON,

AMERICAN CIVIL LIBERTIES UNION,
New York City, May 18, 1943.

Washington, D. C.

Chairman, House Committee on Labor,

DEAR MRS. NORTON: Following up our telegram, copy of which is enclosed, we desire to file with your committee the enclosed memorandum on H. R. 804 by Mr. Woodruff. We trust it will be made part of the record.

Very truly yours,

ARTHUR GARFIELD HAYS,
General Counsel.

AMERICAN CIVIL LIBERTIES UNION,
New York City, May 18, 1943.

Re H. R. 804.

To the House Committee on Labor:

1. H. R. 804 prohibiting aliens from voting in labor organizations or acting as their officers or agents is evidently based on the theory that since aliens cannot exercise the right to vote in political elections they should be deprived of the rights of trade union citizenship as well. We assume that the motive behind the bill is to check what might be regarded as foreign interests opposed to American institutions.

2. If it is sound public policy to deprive aliens of their economic rights in a labor organization it is equally sound policy to deprive alien stockholders in corporations of their voting rights or aliens in any association taking part in public affairs. The theory is just as sound as applied to one type of organization as another.

3. But the theory in our judgment is wholly without merit. Aliens, like citizens, are bound to join associations for their protection and welfare and within those associations should have equal rights with all other members. That is the universal practice with all associations which admit aliens as well as citizens. We know of no incidents of discrimination. If, as a matter of policy, such associations, labor organizations or others, find it desirable not to elect aliens to office that is their concern alone. No legal compulsion should be used to disqualify aliens from exercising within those associations the same rights as others.

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4. From a legal point of view the discrimination is open to obvious attack. courts would require a reasonable relationship to the evil against which the legislation seeks to guard. In our judgment no such case can be made for applying such a rule to labor organizations alone.

5. Under decisions of the Supreme Court, aliens are entitled to civil rights, including freedom of speech, press, and assemblage. If they enjoy these rights in public life certainly they should be protected in the exercise of the same rights in labor organizations. To deny them the right to vote or to act as officers is to deny them their trade-union suffrage.

6. It may be argued that aliens are free to join labor organizations and to get their benefits but should not participate in determining trade union standards of conditions. That is an indefensible distinction.

7. It may be argued that aliens who do not care enough about becoming American citizens should not be placed in positions of responsibility in such vital organizations as trade-unions. The answer to that contention is that many aliens do not quickly become citizens because of the difficulties involved in the procedure, through carelessness, or through lack of qualifications. Such grounds, however open to criticism, do not justify any such sweeping prohibition as is involved in H. R. 804.

MEMORANDUM IN REGARD TO SECTION 4 OF H. R. 1483, PROVIDING FOR AMENDMENT TO THE CORRUPT PRACTICES ACT BY PROHIBITING POLITICAL CONTRIBUTIONS BY LABOR ORGANIZATIONS

The present Federal law forbids corporations to make financial contributions in connection with any election of Federal officials (2 U. S. C., sec. 251). H. R. 1483 proposes to make the prohibition applicable also to "any labor organization." An absolute prohibition of the right of labor unions to make political contributions is indefensible from the point of view of civil liberties.

1. The making of a financial contribution is one extremely important way of participating effectively in the political life of the Nation. The most appropriate way of assuring such right of participation to a workingman is to permit his union to contribute for him. It is through his union that the workingman presses his interests most effectively in the fields of education, public relations, and legislation. The use of the common union fund for these purposes cannot be questioned. No more should one question the reasonable use of the common union fund for the election of public officials who will best respond to such education and legislation. To deny this right of common contribution by workingmen is in reality to deny them all right of contribution.

2. The fact that corporations are now forbidden to make such contributions is irrelevant. Corporations are organized to engage in a specific business for the profit of stockholders. They frequently command large wealth and large power which, if made available for political purposes, would heavily promote the possibilities of political corruption. Stockholders are ordinarily persons of substance who make political contributions directly, and to deny to their corporations the privilege is not to deny it to them.

3. Business associations other than corporations are not now barred (and this bill does not bar them) from making political contributions, and a labor organization is analogous to a business association, not to a corporation.

4. In any event, the Hatch Act now limits the amount of contributions for any candidate to the sum of $5,000. It may also be, as is suggested by English legislative history on the subject of trade-union political contributions, that union members should be allowed closer supervision than they may now have over the decisions of their officials in this field. But, certainly, the absolute denial of the privilege of common contribution must be viewed as discriminatory and hostile to the civil liberties of workingmen.

AMERICAN CIVIL LIBERTIES UNION.