Congress passed the McCarran Internal Security Act of 1950, which critics believed posed a risk to First Amendment rights of freedom of speech and association, over the veto of President Harry Truman four months into the Korean War. The author, Sen. Pat McCarran, D-Nev., was a supporter of Sen. Joseph McCarthy and chaired the Judiciary Committee during the late 1940s and early 1950s, when fear of communism was particularly rampant.

The act had three main components. First, it created a Subversive Activities Control Board (SACB), which on the petition of the attorney general could order an organization it determined to be communist to register with the Justice Department and submit information concerning membership, finances, and activities. Second, the act made it a felony to take any steps that might contribute substantially to the establishment of a totalitarian dictatorship in the United States. Third, it authorized the president, in an emergency (defined as invasion, declaration of war, or insurrection in aid of a foreign enemy), to arrest and detain persons who he believed might engage in espionage or sabotage.

The preventive detention provision was not part of McCarran’s original bill. Its authors, including Democrat Hubert Humphrey of Minnesota, had hoped to sabotage the bill by making it even tougher on communism. They miscalculated, however; the “poison pill” was accepted.

The act required the Communist Party and the twenty-four other organizations charged as communist to register with the Justice Department, but none did. Although the Supreme Court in 1961 upheld a SACB order requiring the Communist Party to register, in Communist Party of the United States v. Subversive Activities Control Board (1961), courts later ruled that individual members could not be compelled to register the party, as in Communist Party v. United States (1963). The Supreme Court refused to review such decisions in United States v. Communist Party (1964) and Albertson v. SACB and Proctor v. SACB (1965). The Court held the provision denying passports to communists was too broad and therefore “unconstitutional on its face” in Aptheker v. Secretary of State (1964).

By 1968 the SACB had virtually ceased to function, and appointments to the board were viewed as sinecures. Congress amended the McCarran Act to eliminate self-registration requirements. The SACB was authorized only to maintain a public list of organizations and individuals it found to be communist.

The preventive detention provision was repealed in 1971. It had been opposed by organizations of Japanese Americans, who had been relocated from the West Coast and detained in camps during World War II. In 1972 Congress slashed the SACB’s budget by 50 percent, and President Richard Nixon’s 1973 budget message omitted all funds for it. The board ceased its operations in 1973.

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