Can American Political Parties Advocate the Overthrow of the US Government?
Yes, the Supreme Court indicates, as long as advocacy isn’t activated, but what if it is?
The Founders were familiar with the vicious in-fighting that occurred between and among European political parties, and wanted to avoid possible crippling political dissent in the country they were busy creating. Ben Franklin, speaking before the Constitutional Convention on June 2, 1787 had this to say:
“There are two passions which have a powerful influence on the affairs of men. These are ambition and avarice; the love of power and the love of money….Place before them a post of honor, that shall be at the same time a place of profit, and they will move heaven and earth to obtain it.”
Four days later James Madison added these thoughts:
“All civilized societies would be divided into different sects, factions and interests, rich and poor, disciples of this or that religious sect, …the followers of this political leader or that political leader… where a majority are united by a common interest or passion, the rights of the minority are in danger.”
Intellectually, these statesmen recognized the problems that had arisen in Great Britain and could arise in the United States. However, human instincts led to diverging behavior later that summer, when powerful groups came together to oppose or support the draft Constitution. By the 1796 presidential election, two political parties had already formed: (1) the Federalists followed Alexander Hamilton and the Democratic-Republicans looked to Thomas Jefferson and James Madison. The latter had clearly overcome his earlier concerns about debilitating partisan warfare.
In the centuries since the US Constitution entered into force on June 21, 1788, 94 political parties have been certified. Ten lasted until the post-Civil War period, when they disappeared because they reflected attitudes toward the union or slavery, that the War had overtaken.
The two most durable parties are the Democratic (established 1828) and Republican (1854). Interesting to note that the Democrats originally were pro-slavery and pro-states rights, while the Republicans were abolitionists and pro-Union.
Over the decades, a process evolved enabling groups of Americans to be certified as state and/or Federal political parties, allowing their candidates to participate in elections. The qualifications focus on: (1) their demonstrated degree of support and political activity (e.g. a percentage of the primary vote) and (2) their understanding and acceptance of the complex of financial laws and regulations governing their fundraising and expenditures.
The Federal courts have consistently shown deference to the Constitutional rights of association and free speech. The question of regulating American political parties has arisen, but largely over the issues of racial discrimination and membership, as well as the “fairness of their nominating process”. Violations of the financial laws have been the most frequent legal actions taken against parties and their representatives.
Only one law has been passed by Congress penalizing specific political beliefs sand systems in the United States: The Communist Control Act (1954). And then there’s the Smith Act of 1940.
The Clear and Present Danger Test
The Federal Courts and particularly the US Supreme Court have considered a number of cases regarding extremely offensive party platforms and allowed these parties to remain in place. Perhaps, none has offered a clearer example of the nation’s deep commitment to the Constitution’s Bill of Rights than that of the American Nazi Party founded in 1959 by George Lincoln Rockwell.
The Party’s declared mission was to kill all Jews, send all Blacks back to Africa and to further other, similar racial views. Rockwell ran unsuccessfully for president in 1964 and was assassinated in 1967 by a former party member. The party collapsed, but off-shoots have surfaced regularly ever since. A Neo-Nazi group participated in the violent August 2017 white supremacist demonstration in Charlottesville, Virginia, that saw one counter demonstrator murdered..
In 1940, the Smith Act was passed against the background of armed conflict in Europe and more aggressive Communist movements. The Act was aimed at restricting subversive activities in the US. It forbade any attempts to “…advocate, abet, advise or teach or to organize or be a member of any group or society devoted to such advocacy. or” the violent destruction of the U.S. Government”. Prosecutions were brought against American Communists for their beliefs and membership, triggering appeals asserting their 1st Amendment , and thus their Constitutional rights, were being violated. .
The Supreme Court in Dennis v. United States (1951), found the Act was Constitutional, but that it could only be applied when there was evidence showing that “…a conspiracy was in place to overthrow the government., i.e.. “…a clear and present danger of the substantive evil.” In Yates v. United States (1957), the court focused on the difference between abstract advocacy and that which called for immediate action.
And then, in two 1961 cases, Scales v. United States and and Noto v. Unied States the Supreme Court seemed to backtrack a little by finding that active membership in the Communist Party with intent to overthrow the government was not protected by the First Amendment or the Due Process clause. In Noto the Court found there was insufficient evidence that Noto or his particular Communist Party was actively doing much of anything.
There have been no prosecutions under the Smith Act for the past 60 years, although it remains on the books. 2021: the Smith Act & 18 USC.
Could Either Apply to 1/06/21?
On January 6, Republican supporters of former president Trump violently assaulted the US Capitol in Washington, D.C. Their purpose was to prevent the Congress from carrying out its largely ceremonial duty of accepting the states certified Electoral College 2020 vote tallies and announcing the president and vice president elect of the United States. They failed and Joe Biden and Kamala Harris were declared the 2020 winners. .
Five people died, over 140 police were injured and hospitalized and well over 500 of those who took part in the attack have been charged and are being prosecuted in the Federal Courts.
The Smith Act is relevant because it forbids attempts to “advocate, abet, advise or teach” the violent overthrow of the US Government and resulted in the prosecution and conviction of 23 leaders/members of the Socialist Workers Party in Minneapolis (overturned in 1957). Subsequent prosecutions were aimed principally at members of the US Communist Party, alleging conspiracies aimed at overthrowing the US Government. As mentioned earlier, the Supreme Court stated there had to be more than advocacy of an abstract idea, something closer to a “clear and present danger”. The Smith Act has not been employed in legal actions since the 1960x.
The US Code (18USCSec.2383 enacted in 1948 deals with the crimes of rebellion or Insurrection. More specifically, it states that: “whoever incites, sets on foot, assists or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined or imprisoned or both;and shall be incapable of holding any office under the United State4s.”
The U.S. Attorney for the District of Columbia said officials are looking at “significant felony cases” tied to sedition and conspiracy.” The FBI has opened more than 500 cases against individuals who took part in the January 6, 2021 assault on the Capitol
My initial interest was to research the possibility the Republican Party could be held liable for the January 6, 2021 violence. The Smith Act was used to prosecute members of two political parties (Socialist and Communist), but its purview was narrowed by the Supreme Court, requiring a showing of more than advocacy aimed at the overthrow of the US Government. The attack on the Capitol definitely satisfied that element. However, proving a conspiracy by the Republican Party itself, which does not advocate overthrowing the American Government, would be extremely difficult, if not impossible.
Then the question becomes, if not the Party itself, what about another group of individuals forming a conspiracy with the specific intent (Eastman Plan) of reversing the 2020 Election and then acting,.on it. Theoretically possible, but unlikely, which probably explains why the FBI and the US Attorneys have been charging each participant in the attack individually.
18 US Code, Section 2383 punishes “…whoever incites…or engages in rebellion or insurrection against the authority of the United States”.I have not researched the case history under this statute, but superficially it appears more appropriate for what led up to January 6th. Another point I didn’t address was the liability of several militias and their members.
Tom Timberman is an Army vet, lawyer, former senior Foreign Service officer, adjunct professor at GWU, and economic development team leader or foreign government advisor in war zones. He is the author of four books, lectures locally and at US and European universities. He and his wife are 24 year residents of Kent County.