Repeal

State legislators will consider whether to repeal a Nevada law that currently allows employers to engage in job discrimination against communists.

The Legislative Commission—a body that handles some legislative business when the full Nevada Legislature is out of session—is having a bill drawn up to repeal Nevada Revised Statute 613.360. The lawmakers go into session on Feb. 4.

The 47-year-old law doesn’t necessarily allow discrimination against all communists. It allows it in the cases of communists who are members of a Communist Party and may allow it in other instances. It reads:

“Actions permitted against member of Communist Party or related organization. As used in NRS 613.310 to 613.435, inclusive, the phrase ‘unlawful employment practice’ does not include any action or measure taken by an employer, labor organization, joint labor-management committee or employment agency with respect to an individual who is a member of the Communist Party of the United States or of any other organization required to register as a Communist-action or Communist-front organization by final order of the Subversive Activities Control Board pursuant to the Subversive Activities Control Act of 1950.”

The Subversive Activities Control Board was created by the U.S. Internal Security Act of 1950, which was sponsored by U.S. Sen. Patrick McCarran of Nevada, a right wing Democrat. Title II of the same law provided for concentration camps in the United States, a number of which were constructed but never used. (Democratic Sen. Paul Douglas of Illinois, who co-authored Title II, was later placed on an FBI list of people to be rounded up for the camps.)

The Nevada law was enacted by the 1965 Nevada Legislature as section 15 of that year’s Assembly Bill 404, sponsored by Assemblymembers Mel Close and Vernon Bunker, both Democrats.

Bunker, who was the Democratic floor leader in 1965 and later moved down to the state Senate, is deceased.

Close, who later became Assembly Speaker and also eventually moved to the Senate, is a Las Vegas lawyer. He has no memory of the legislation.

“I read about it [the plan to repeal] in the paper, and I thought, ‘How did such a dumb law get passed in the first place?’” Close said with a laugh this week. “I wish I could tell you why that was in the bill, but I can’t.”

An examination of legislative records does not provide any indication of why the section was in the bill. Most of the committee discussion dealt with how the state law meshed with federal law, and some concern was expressed over disallowing sexual discrimination. Some legislators thought it might mean businesses would be subject to equal pay for women or might have to hire women as ditch-diggers. The committee minutes say Gov. Grant Sawyer signed off on the language.

The bill passed the Assembly 34-2 on March 18 and the Senate 21-8 on April 2.

The language of the law is a reflection of the times when it was enacted. The word “communist” was usually capitalized, even when not used as a proper noun, a practice that dwindled as red-baiting receded into the past.

Would legislators today run a political risk by voting to repeal the law?

“I honestly don’t think so,” said political scientist Fred Lokken. “I don’t think there’s any risk of it.”

He said that with the benefit of hindsight, it is clear that the threat both inside and outside the United States was always from the right.

“The Soviet Union was fascist, China the same, but the hysteria was over their being leftist,” he said. “That is what the great threat is in the United States, is takeover from the right, not from the left.”

In the late 1800s and early 1900s, business leaders in the U.S. were able to use both money and force—sometimes U.S. military force—to put economic theories like Marxism, communism, socialism and social democracy permanently outside allowable discourse in the nation, unlike Europe where socialism and social democracy are still vigorous and often successful movements and even communism is a credible faction.

Lokken acknowledged that there’s always the possibility that a fringe figure might accuse a Nevada legislator in the next election of being pro-communist, but he said there are ways for the lawmakers to protect themselves.

“It would be wise to combine it in a bill with a number of other ridiculous laws,” he said.

It may come as a surprise that it is legal for employers to inquire into the political beliefs of job applicants. It is, with some exceptions and some ambiguous risk points for employers.

There are federal court cases that protect public employees from scrutiny of their political views.

In some states there are laws that protect private sector job applicants from political probes, but Nevada isn’t one of them.

One lawyer at an online legal advice site, William Wilson, suggests that a federal law, 42 USC 1985(3), could be used in this field. He wrote that it “prohibits conspiracies to deprive persons of equal rights and privileges that has been raised in various contexts. The statute, which is a Reconstruction era law, is broadly drafted to correct some of the abuses that arose after the Civil War for blacks trying to exercise their rights. However, it addresses ‘any person or class of persons of the equal protection of the laws’ which could include party affiliation, or a particular political viewpoint. The ‘class’ must be one that is sufficiently defined, so it is more likely to apply to party affiliation, such as Democrat, rather than an amorphous group, such as liberal.”

There are other, similar Nevada laws that are still on the books but have not been marked for revision and will apparently stand as is. Among them:

• NRS 613.370, which allows job discrimination for a job applicant who is adjudged by federal officials to be a threat to “national security”;

• NRS 203.115, which makes “criminal anarchy”—that is, holding the opinion that the government should be overthrown by force or violence—illegal even without action to put that opinion into practice;

• NRS 203.117, which makes “criminal syndicalism”—that is, holding the opinion that “political or industrial reform” should be carried out by force—illegal even without action to put that opinion into practice;

• The Nevada Constitution at article two, section five, which requires teachers at all levels to take loyalty oaths.

Syndicalism laws in some other jurisdictions have been overturned by the courts and in 1969 they were overturned by the U.S. Supreme Court in Brandenburg v. Ohio, a case involving a member of the Ku Klux Klan who was convicted of holding officially disapproved opinions.

Surprisingly, none of these laws is the product of the McCarthy era of the 1950s, when Sen. Joseph McCarthy of Wisconsin became known for accusations of subversion against liberals. McCarthy launched that movement with a campaign swing of speeches around the nation for Republican candidates that began in Wheeling, W. Va., and included stops in Reno and Las Vegas.

The language in the Nevada Constitution requiring loyalty oaths was written in 1864 when suspicions of the loyalty of members of the Church of Jesus Christ of Latter Day Saints and of Confederate sympathizers were at issue.

The syndicalism laws were written during the early 20th century when business practices were challenged by labor and reform movements. According to NRS, they were already on the state’s lawbooks in 1911 when a revision of state laws took place.