I don't think we have ever had any accusations that were wellfounded that such took place.

Mr. DUFFY. When Commissioner Hennock testified before the subcommittee she proposed that the President of the United States appoint a Commission to investigate problems such as we have discussed here.

Does the FCC have any stand, any opinion as to that proposal?

Mr. BAKER. The FCC has taken no position with respect to it. I would merely observe that generally speaking, the congressional committees have felt themselves competent to investigate it.

I assume that this committee itself is now considering that problem. I don't think the Commission would particularly favor or disfavor any particular method in which you would obtain the information needed before legislation is passed.

Senator CURTIS. Do you have anything else?

Mr. DUFFY. Nothing.

Senator CURTIS. Unless you have something else, Mr. Baker, we appreciate your helpfulness.

Mr. BAKER. We have nothing further. We appreciate the opportunity of testifying before you.

TESTIMONY OF WARREN OLNEY III, ASSISTANT ATTORNEY GENERAL IN CHARGE OF CRIMINAL DIVISION, DEPARTMENT OF JUSTICE, ACCOMPANIED BY A. B. CALDWELL, CHIEF, CIVIL RIGHTS SECTION; AND WILLIAM J. O'HEAR, ATTORNEY, CIVIL RIGHTS SECTION

Senator CURTIS. For the record, you are Mr. Warren Olney, III, Assistant Attorney General in Charge of the Criminal Division? Mr. OLNEY. Yes, I am.

Senator CURTIS. Would you identify your two associates, and their positions?

Mr. OLNEY. Sitting on my right is Mr. A. B. Caldwell, who is the Chief of the Civil Rights Section, and has been for many years.

And beyond him is Mr. O'Hear, an attorney in the Civil Rights Section who is particularly familiar with election cases.

Senator CURTIS. And how long have you been in the Department of Justice?

Mr. OLNEY. Since the first of February 1953.

Senator CURTIS. And prior to that time, where did you practice law?

Mr. OLNEY. In the State of California.

Senator CURTIS. As you know, Mr. Olney, we are considering S. 636, relating to election laws. The Department of Justice has written the chairman of the full committee a letter with respect to the bill. We are happy to have you here to testify. How do you wish to proceed? Do you have a further statement?

Mr. OLNEY. Yes, I have, Senator.

Senator CURTIS. You may proceed with your statement.

Mr. OLNEY. First, let me express my thanks to this committee for the privilege of discussing with you the provisions of Senate bill 636 and our efforts to enforce the present election laws. I am grateful for this opportunity for I suspect that there are many persons who

are unfamiliar with the activities of the Department in this field as well as the enforcement problems with which we struggle as a result of certain deficiencies in the present statutes.

The Department finds itself in the difficult position of being expected and in fact required to enforce Federal criminal statutes which are in some instances at best very inadequate. When we consider the vast area of election activity which Federal law does not purport to control, such as the actual mechanics on conducting elections, and add to that the areas in which Federal law falls short of effective control, such as the total expenditures of funds in election campaigns, we see that the Federal Government actually plays a minor role in this most important field of political activity. Unfortunately, few persons realize how very limited our jurisdiction is in this field and as a result we are constantly urged to take prosecutive action in cases which at most constitute only violations of State law.

Even though there are many inadequacies in existing election laws, every effort is made by the Department and the Federal Bureau of Investigation to enforce all applicable laws now on the statute books. In this connection you may be interested to know that one of the most useful and effective criminal statutes used by the Department is not a part of the Corrupt Practices Act, nor even the Hatch Act, but one of the civil rights statutes passed shortly after the Civil War as implementing legislation for the 13th, 14th, and 15th amendments to the Constitution.

That old civil rights statute does not mention elections, but merely punishes conspiracies to defraud citizens of their constitutional rights, which the Supreme Court has held included (1) the right to vote for Federal officers; and (2) the right to have that vote honestly counted as cast; and (3) its effect not to be diluted by a false vote count or by stuffing the ballot box with fraudulent votes.

That is one of our most useful statutes as a practical matter in this field.

However, before I discuss the provisions of the proposed bill, you may be interested in a few words of what we are doing now in our efforts to enforce existing election laws.

You may be assured that in spite of certain shortcomings in these laws we are making every reasonable attempt to enforce them. The Attorney General's desire to insure as effective enforcement as possible is shown by the fact that although there are over a thousand Federal criminal laws over which the Department has enforcement responsibility, the Federal election statutes have been made the subject of special orders signed by Attorney General Brownell himself, and issued to all United States attorneys, the Federal Bureau of Investigation and all attorneys in the Criminal Division.

The purpose of this special order is to see that violations of this kind are investigated with more speed and promptness than in ordinary cases.

These orders authorize the Federal Bureau of Investigation to conduct promptly preliminary investigations of all complaints received involving possible violations of election laws.

If the complaint comes first to the local United States attorney, the order reads:

he shall immediately refer it to the Federal Bureau of Investigation and advise the Criminal Division of such referral

where the investigation is closely followed and supervised by attorneys of the Civil Rights Section of the Criminal Division.

In addition, the order reads:

where it appears that tangible evidence such as ballots, ballot books, and tally sheets will be destroyed

and so forth, the United States attorney is directed to take prompt action through Federal court order impounding such evidence without waiting for prior authorization from the Department.

In addition to these special orders, the United States Attorney's Manual gives specific instructions in handling all election complaints to secure the best and most effective enforcement of these election laws in spite of their limited coverage.

Thus, every complaint, regardless of its source, made to any Federal Bureau of Investigation agent anywhere in the 48 States, or to any United States attorney or by letter to the Department of Justice, gets prompt attention and sufficient investigation by the Bureau to determine (1) whether there is Federal jurisdiction; and (2) whether the facts indicate a violation of Federal criminal law. If such is the case, a full investigation is promptly ordered and it is thereafter presented to a Federal grand jury for indictment and subsequent prosecution. If an indictment is returned, the United States attorney may not move to dismiss it without prior approval of the Department. This policy of careful consideration and thorough investigation of election complaints results in a large number of investigations which the limited application of Federal election statutes reduces to a relatively few actual prosecutions in court. The following will give some idea of this ratio between investigations and prosecutions in recent years:

In 1952, an election campaign year, there were 245 election law complaints which resulted in 139 investigations but only 2 prosecutions. In 1953 there were 92 complaints resulting in 54 investigations with but 1 prosecution. However, in 1954, there were 118 complaints. from which 68 investigations were made and which resulted in 56 indictments returned by grand juries. At the present time, 7 of these indictments have been terminated by trial and 49 are awaiting trial. Those figures on the number of investigations as compared with the number of cases resulting from them is some indication of how common it is for people, complainants and others, to suppose that the Federal laws do apply to factual situations but investigation reveals that the Federal statutes are not applicable.

Senator CURTIS. How do you receive the complaints for the purpose that you are tabulating them there?

Mr. OLNEY. Well, a complaint can come, of course, either orally or in writing or in some other way. But it is information in any form coming to the agents of the Federal Bureau of Investigation or to the Department itself, information which, if true, would indicate the possibility or probability of a violation of the election law.

Now, it isn't always the result of somebody coming in and pounding the table and demanding in a complaining tone of voice that some action be taken. Sometimes it will be something that may even appear in the newspapers indicative of the violation of a law, or coming to our attention in that way.

But we call it a complaint, without regard for the source from which it comes, if our attention is called to circumstances and facts which suggest a violation of the law and require an inquiry.

One of the most obvious defects, or loopholes, in the Federal Corrupt Practices Act appears in section 302 (a) which defines "election" to include only a general or a special election and thereby omits a primary election or convention of a political party.

As your subcommittee's report on proposed amendments to Federal Corrupt Practices Act states, this failure to include primaries in the definition of that term practically destroys the effectiveness of the statute in many areas where it could be, if applicable, most effective.

In those States where one party is dominant, and we have them on both sides of the political fence, in all parts of the Nation, winning the party nomination is tantamount to election.

In many States, primary elections are not merely formal party approvals but genuine contests. In these areas, and I am informed that they constitute approximately one-third of all congressional districts, any restriction on campaign expenditures limited to the general election simply is not realistic.

It is, under present law, possible for large sums of money to be spent in a primary by a candidate, or his committee, which will accrue to his benefit in the general election but which under the present law are not required to be reported simply because the definition does not include these all-important preliminary contests. The proposed enlargement of the definition of "elections" in section 102 (1) of S. 636 would appear to correct this difficulty.

Another similar defect of the present statute is the definition in section 302 (c) of "political committees." At present that term means any group which accepts contributions or makes expenditures (1) in 2 or more States, or (2) whether on not in more than 1 State if such group, other than a duly organized State or local committee of a political party, is a branch of national organization.

The actual effect of this definition is to remove all groups from the requirements and prohibitions of the statute except a national committee.

The result is that there is no application of this law to independent intrastate political committees regardless of how many there are. This new definition of political committees in section 102 (3) of S. 636 would include any committee or association which accepts contributions or makes expenditures for the purpose of influencing elections and would appear to correct this defect in the present law.

I have no hesitancy in saying that in our view the correction of these two defects the inclusion of primaries in the definition of election and the inclusion of intrastate political committees within the definition of political committees-would be a great step forward in improving the present Corrupt Practices Act.

Senator CURTIS. Do you have any idea how many intrastate committtes you would bring under Federal control?

Mr. OLNEY. I have no idea. It would be a large number.

Senator CURTIS. In some States it could include every precinct, couldn't it?

Mr. OLNEY. Yes, I think it could.

Senator CURTIS. And the bill calls for several reports.

Mr. OLNEY. Yes, quite a lot of reports.

When I say that would be a step forward, we are talking about whether the same applications-and only this-whether the same laws should apply to these intrastate committees as apply to the other committees, if we are to have this kind of information made public.

I am not referring or expressing any view as to whether there should be more or fewer reports required from the particular committees. I am thinking only of the general objectives.

While this redefinition of "political committee," in section 102 (3) of S. 636, would result in more effective enforcement of the existing provisions of the Corrupt Practices Act, when we use that definition in connection with section 201 (a) (1) of S. 636, it presents a more difficult problem. Section 201 (a) (1) provides that no contribution or expenditure shall be made by or on behalf of a political committee until the candidate which it is supporting has given that committee a written authorization to act in his behalf and filed a copy with the Clerk of the House of Representatives.

I must admit that this provision gives me some serious concern. As I understand it, this section in effect gives to the candidate the power to approve, or disapprove, and thus make legal or illegal contributions or expenditures made in his behalf by any organized group of citizens regardless of their wishes or desires.

In effect, this provision appears to delegate to a private individual, at a time when he is only seeking Federal office, the power to restrict, in fact make illegal and punishable under this bill, the political activities of any organized group of citizens.

In this connection, it should be noted that today one can hardly embark upon any political activity such as making a speech in a hall or printing or circulating pamphlets without incurring some expense. Therefore this provision, to me at least, raises some serious doubt about possible conflict with the first amendment to the Constitution, and this is true entirely aside from the other question of whether Congress can legally delegate such powers to a private individual who qualifies merely by becoming a candidate for Federal office.

I am aware of this problem because of a decision of the Supreme Court in the CIO case-United States v. CIO (335 U. S. 106)—which involved another part of the Corrupt Practices Act, section 313. That section has now become section 610 of title 18 of the United States Code and it prohibits the national banks, corporations, and labor unions from making expenditures in connection with any primary or election involving Federal candidates. In the CIO case, the Court said, at page 121:

If section 313 were construed to prohibit the publication, by corporations and unions in the regular course of conducting their affairs, of periodicals advising their members, stockholders, or customers of danger or advantage to their interests from the adoption of measures, or the election to office or men espousing such measures, the gravest doubt would arise in our minds as to its constitutionality.

That language indicates the view that the Court takes as to the importance of leaving open all media of public expression for political candidates and for supporters. It is true that it doesn't rule directly on the question that is involved here. But that was the statement of the five-member majority of the Court. And in that case the other four members of the Court indicate that they believed the statute to be unconstitutional because of its conflict with the first amendment. So that out of the 9 members of the Supreme Court there was not 1