United States Servicemen's Fund v. Eastland

MacKINNON, Circuit Judge,

dissenting:

In my view the majority opinion does not face up to the facts or to the legal principles that make the subject subpoena a valid exercise of the investigative power by the United States Senate. I thus respectfully record the following dissent.

The United States Servicemen’s Fund

The United States Servicemen’s Fund (USSF) was incorporated in Delaware as a nonprofit membership corporation on January 6, 1969 and was granted an exemption from the payment of federal income taxes by the U. S. Internal Revenue Service in March 1969 (A. 147, 135). Its certificate of incorporation sets forth a number of charitable and educational purposes. 1

Allegedly in the exercise of these corporate powers the USSF, among other activities, established a number of so-called “coffee houses” near and on about 17 large federal military installations (A. 119, 148, 152) and also furnished financial assistance to about 75 newspapers which were distributed on federal military bases around the world (A. 120, 150).

■In engaging in these activities the USSF contended that the activities of these coffee houses and newspapers were needed by men in the U. S. military services because such men “are in effect, inmates of a totalitarian institution” (A. 122-23) similar to “prisons, convents, boarding schools [and] mental hospitals” (A. 125) and need the “education” 2 available through the USSF coffee houses and USSF supported newspapers for their “psychological well being” (A. 128). As used by the USSF the term “education” was not used in its ordinary sense of personal development but rather referred to efforts to convert military personnel into opponents of the Vietnam War. This is clear from the description given at trial by Mr. Gutman, their counsel, of the type of “education” provided by the USSF:

The Servicemen’s Fund indeed does educate a great deal on the issues which most concern servicemen, which, of course, is the war, and the library, educational material and discussions which are carried on through the publication and meeting facilities and the library of the servicemen do indeed deal to a large extent with issues of the war, legality, the morality, *372 the practicality and so on of the war, and the immediate issue most concern the men who are fighting and being trained to fight it. (A. 221)

Through its activities the USSF stated that it sought to bring about the “immunization” of soldiers “against the assaults of the military posts” and other “total institutions” so that they would “associate with those people of like views . . . [and] develop [a] system of counter mores . . . and a sense of personal identity or autonomy with the group of people that sits outside the total institution” (A. 125, 130). When we translate the foregoing into plain English, the USSF admits that it was seeking through its coffee houses and the newspapers it supported to convert military personnel into opposing the United States military operations in Vietnam (A. 150, 221) and in actual practice that is what the record indicates it was attempting to do.

Such activities brought complaints against the coffee houses and some of the personnel associated with acts which resulted from USSF supported activity. While the record at trial was not required to go extensively into such matters there was testimony indicating that the USSF coffee house at Ft. Dix was attacked by rocks, projectiles, hand grenades and several gunshots (A. 153); that the staff members of its South Carolina coffee house had been convicted of operating a common nuisance and the house padlocked (A. 153); and that one individual activist who was participating in USSF funded activities “was a bad influence around trainees, and that he was bad for the morale and discipline among the troops” (A. 110, 169-180). 3

From a reading of the entire record it is apparent that in numerous instances, the methods the USSF elected to follow in carrying out its opposition to the United States military operations in Southeast Asia were calculated to attack the morale of service personnel and were intended to be disruptive of the then current mission of the United States military establishment in Southeast Asia as directed by national policy established jointly by the Presidents and Congresses since the 1960’s. Such activities could not help but create a reasonable cause for concern. 4

The Investigation by the Subcommittee

Faced with such disruptive activities by the USSF directed at the morale of the armed services carrying out duly declared national policy, 5 the Subcommittee on Internal Security of the Committee on the Judiciary of the United States Senate decided to investigate. In S. Res. 341, the 91st Congress had previously authorized such Subcommittee

to make a complete and continuing study and investigation of (1) the administration, operation, and enforcement of the Internal Security Act of 1950, as amended; (2) the administration, operation, and enforcement of other laws relating to espionage, sabotage, and the protection of the internal security of the United States; and (3) the extent, nature, and effect of subversive activities in the United States, its territories and possessions, including, but not limited to, espionage, sabotage, and infiltration by persons who are or may be under the domination of the foreign government or organizations controlling the world Communist movement or any other movement seeking to overthrow the *373 Government of the United States by force or violence. 6

Acting pursuant to such authority the Subcommittee duly adopted resolutions to subpoena certain information relevant to the activities of the USSF. The Subcommittee resolution provided:

WHEREAS, information collected pursuant to the Subcommittee’s resolution of October 14, 1967 makes a prima facie showing that the organizations and individuals hereinafter named should be the subject of further investigation, it is directed that such investigation be carried forward by the staff; and that when the Chairman shall conclude that the results of staff investigation with respect to any such person or organization indicate the desirability of a hearing or hearings, the Chairman is authorized to issue appropriate subpoenas, including subpoenas duces tecum, to insure attendance of necessary witnesses and the production, if required, of material evidence.

* * * * -x- *

The foregoing applies with respect to: United [States] Servicemen’s Fund, Inc. (A. 64-65) 7

Thus, it came to be that on May 28, 1970 the Subcommittee issued a subpoena to the Chemical Bank of New York City, over the signature of Senator James O. Eastland, Chairman of the Committee on the Judiciary and the Subcommittee on Internal Security. The text of the subpoena provided:

UNITED STATES OF AMERICA

Congress of the United States

To Chemical Bank

20 Pine Street

New York, N.Y., Greeting:

Pursuant to lawful authority, YOU ARE HEREBY COMMANDED to furnish to the Subcommittee on Internal Security of the Committee on the Judiciary of the Senate of the United States, on Thursday, June 4, 1970, at 10:00 *374 o’clock a.m., at their committee room 2300, New Senate Office Bldg., Washington, D. C. 20510, pursuant to S.Res. 366, 81st Congress-2d, as amended and extended, and S.Res. 341 agreed to February 16, 1970, any and all records appertaining to or involving the account or accounts of the United States Servicemen’s Fund. Such records to comprehend papers, correspondence, statements, checks, deposit slips and supporting documentation, or microfilm thereof within your control or custody or within your means to produce.

Hereof fail not, as you will answer your default under the pains and penalties in such cases made and provided.

To Any U. S. Marshal to serve and return.

Given under my hand, by order of the committee, this 28th day of May, in the year of our Lord one thousand nine hundred and seventy.

/s/ JAMES O. EASTLAND, U.S.S. Chairman, Committee on the Judiciary and the Subcommittee on Internal Security

The obvious objective in issuing this subpoena to the bank which carried the USSF deposit (A. 199) was to obtain information as to the finances of the USSF and as to who was financially supporting it in its activities. Is this a legitimate subject of inquiry by the Subcommittee? Appellants contend that it is not for various reasons. The only reason that is now important is their claim that compliance with such subpoena would interfere with their right under the First Amendment of the Constitution to freedom of association. In this respect they contend that publishing the names of their contributors by giving then to the congressional committee “could have a devastating effect on fund raising of any organization” (A. 212). At trial, there was testimony that financial contributions to the USSF did fall off for this reason. However, the testimony does not negate that they may well have fallen off because the true nature of some of the activities of USSF were disclosed. Basically the claim is made that the contributions fell off because resulting publicity was not desired by a great many of their financial contributors. Some of these contributors are in themselves “foundations” and these organizations, and the individuals who use them for such purposes, fear that disclosure of their contributions to USSF “might be damaging to their tax position” (A. 208) under the Internal Revenue laws (A. 201). Some of the contributors are tax exempt corporations (A. 197), as is the USSF (A. 147).

Testimony indicated that some of the contributors use various means to cenceal their identity as contributors, including the use of corporations, foundations and other entities (A. 194, 195, 209, 217) and the making of contributions in cash, cashiers checks (A. 195), cashiers checks with no names (A. 217), checks from brokerage houses (A. 196, 217) and through the use of funds that do not bear the family name of the contributor (A. 199). Such surreptitious methods to conceal the identity of the donors are used by “major contributors” (A. 199) and, in one other instance testified to, the contribution was “a large check ... a substantial contribution” (A. 200). One fund raiser for the USSF testified that he received a “substantial contribution” in the form of a “bank check” that he could not trace (A. 200). Another fund raiser testified that in the last year or so she had never known “so many large contributions [to be] given anonymously” (A. 216). Whether all this evidence related to USSF contributors is not clear, but the evidence was offered in support of their claim so apparently similar instances occurred in their fund raising. So it appears that there is a strong possibility that the USSF received substantial contributions to support its activities from sources unknown even to it. These sources, as well as those sources who make their contributions without any effort at concealment, might be uncovered if this investigation is allowed to continue (A. 200).

*375

NAACP v. Alabama and Other Decisions

The USSF contends, and the majority opinion supports such contention, that the Senate investigation of its activities through the subject subpoena should not be allowed to continue because such action would unconstitutionally deprive the USSF of its First Amendment right to freedom of association. The majority opinion states the issue to be whether the courts of the United States have power to interfere with a congressional subpoena “when the exercise of such power threatens a deprivation of First Amendment rights of freedom of association which can be vindicated in no way other than by court decree” (Majority opinion, p. 1254). Having so stated the issue it concludes that the courts do not possess such power. In reaching such conclusion, without analysis, it relies upon five decisions: NAACP v. Alabama, 357 U.S. 449 , 78 S.Ct. 1163 , 2 L.Ed.2d 1488 (1958); Bates v. Little Rock, 361 U.S. 516 , 80 S.Ct. 412 , 4 L.Ed.2d 480 (1960); Louisiana ex rel. Gremillion v. NAACP, 366 U.S. 293 , 81 S.Ct. 1333 , 6 L.Ed.2d 301 (1961); Gibson v. Florida Legislative Committee, 372 U.S. 539 , 83 S.Ct. 889 , 9 L.Ed.2d 929 (1963); and Pollard v. Roberts, 393 U. S. 14 , 89 S.Ct. 47 , 21 L.Ed.2d 14 (1968), affirming the judgment of the three-judge District Court for the Eastern District of Arkansas, 283 F.Supp. 248 (1968).

The basis of the majority opinion is its assertion that the five cited decisions, supra, uphold the right of voluntary associations especially those “engaged in activities which may not meet with popular favor, to be free from having either state or federal officials expose their affiliation and membership absent a compelling state or federal purpose . . . .” However, I find the five cases to be distinguishable on their facts and on grounds that justify a finding that the facts here present a “compelling . . . federal purpose.” In my view when the majority opinion cites these five cases in a conclusory way it does not come to grips with the basic facts or the principles of law announced by the Supreme Court that must control the decision here.

In NAACP v. Alabama, supra, the Supreme Court held that the State of Alabama in its attempt to obtain the local NAACP membership lists in Alabama as part of the attempt by the state to enjoin the NAACP further in, and to oust the organization from, the state had failed to show a controlling justification for the deterrent effect that such disclosure would have on the right of its members to associate. The subpoena that sought to compel such disclosure was a state court subpoena, no issue involving the separation of powers, federal or state, was presented and the right of association was being exercised in support of racial rights guaranteed by the Constitution which sufficiently overcame whatever interest the state had in obtaining the names of the NAACP’s ordinary members.

Bates v. Little Rock, supra, held that two occupational license tax ordinances which required local branches of the NAACP to furnish the city officials with lists of the names of the members of the local branches of the association violated the members’ right to freedom of association. The Court (Stewart, J.) recognized that the proper and efficient exercise of the power to tax may sometimes entail the possibility of encroachment upon individual freedom but it was unable to find any “relevant correlation between the power of the municipalities to impose occupational license taxes and the compulsory disclosure and publication of the [local NAACP] membership lists . . . .” 361 U.S. at 524-525 , 80 S.Ct. at 417-418 . This decision involving a local taxing ordinance is a far cry from the factual situation which confronts us, holding, as it does, merely that the evidence sought was not relevant.

The third decision relied upon by the majority opinion is Louisiana ex rel. Gremillion v. NAACP, supra, which in 1961 affirmed a three-judge court decision in Louisiana rendered in a declaratory judgment action brought by the *376 NAACP. It held that a Louisiana statute, which required “fraternal . charitable . . . [and] social organizations” to file annually with the Secretary of State a complete list of all local members and officers, violated the NAACP members’ constitutional rights to freedom of association as guaranteed by the First Amendment. Some local affiliates in Louisiana of the NAACP had filed membership lists and thereafter some of its members were subjected to economic reprisals. The case stands for the principle that a state statute directed at “non-trading” corporations cannot constitutionally be applied to associations organized to further the civil rights of Negroes where the required disclosure of membership lists results in subjecting the members to economic reprisals. No question involving the separation of powers was involved and no issue was present as to the legislative right to investigate. The case is merely another extension of the recognized protection that the Constitution gives to Negro rights.

In 1963 the Supreme Court by a 5 to 4 vote decided Gibson v. Florida Legislative Committee, supra. The majority opinion was written by Justice Goldberg and dissenting opinions were filed by Justices Harlan and White. The majority held that it was a violation of the right of freedom of association to convict the president of the NAACP chapter in Miami, Florida, for contempt of a state legislative investigating committee when he refused to testify whether any of 52 or 14 named persons given to him were members of the Miami chapter of the NAACP. The committee had previously developed information that these persons had some relation to Communist activity, and the NAACP, by resolution, had previously recognized that certain branches of the NAACP were “being rocked by internal conflicts between groups who follow the Communist line and those who do not . . . [and] that there is a well-organized, nationwide conspiracy by Communists either to capture or split and wreck the NAACP . . . .” The local president was asked by the legislative committee to testify from memory or, after refreshing his recollection, from the membership list. He refused to testify on either basis notwithstanding that the committee made it clear that they were not requiring a disclosure of the membership list.

The majority opinion was based upon its assertion that the state had not shown convincingly a substantial relation between the information sought and a subject of overriding and compelling state interest. The basis of the decision, being thus grounded on a finding of irrelevance is distinguishable from the facts here as it will hereafter be demonstrated that there is a direct compelling federal interest in subject inquiry. Moreover, a close reading of the majority and dissenting opinions convinces that the dissents by Justice Harlan and White assert the sounder law on the other points. The legislative committee obviously had a proper basis to ask the questions it did and it could not be required to prove in advance the very things it was attempting to determine. If the Senate could already prove such facts there would be no need for the subpoena. And how any interference with the right to freedom of association is involved is not apparent. It seems clear to me that this decision will not be followed in subsequent cases, and in any event is not applicable here because of the existence here of a compelling Federal interest.

The last decision relied upon by the majority opinion is the three-judge district court decision in Arkansas, 283 F. Supp. 248 (1968) which was affirmed Per Curiam by the Supreme Court without opinion in Pollard v. Roberts, supra. (Justice Black was of the opinion that probable jurisdiction should be noted.) In that litigation a state prosecuting attorney in Arkansas was enjoined on First Amendment grounds from subpoenaing the bank records of the Republican Party in the state, because the prosecutor “was required to make a far *377 greater showing of relevancy and public interest in the disclosure than has been made here.” 283 F.Supp. at 258 . Here again the information demanded was found to be irrelevant. Underlying the decision was the common sense rationale that the list of financial contributors was not relevant to the charge of illegal vote buying that the prosecutor was allegedly investigating. 8 The decision does not hold that a state may never require campaign contributions to be made public but merely refuses to do so “where the demand has no more substantial basis than the one involved in this case,” 283 F.Supp. at 259 . In fact the decision went on to hold that it was only the disclosure of “contributions” and not “expenditures” that was being enjoined, 9 and that if the prosecutor finds himself in a position to make a showing that would entitle him to see records of contributions of certain individuals that he could apply to the court to modify the injunction. 283 F.Supp. at 259 . So the case merely holds that the prosecutor had not made a showing that the requested disclosure was relevant to his inquiry and is not authority for the proposition that lists of contributors can never be required.

All these cases are distinguishable from the instant case on the ground that none of them on their facts makes a showing that the lists were requested for a proper purpose. 10 Some are also distinguishable on the additional factual variances pointed out above. Only one of the cases involved a legislative subpoena (state legislature) and that case was decided on the grounds that the subpoena sought irrelevant information, i. e., that there was no adequate showing of a substantial relation between the information sought and a subject of compelling state interest. In the instant case, however, as is pointed out infra, there is a demonstrable relationship between the information sought and the valid legislative interest of the federal Congress. It is also significant that the majority opinion does not come to grips with Barenblatt v. United States, 360 U.S. 109 , 79 S.Ct. 1081 , 3 L.Ed.2d 1115 (1959), or Uphaus v. Wyman, 360 U.S. 72 , 79 S.Ct. 1040 , 3 L.Ed.2d 1090 (1959). These two cases were decided *378 on the same day and they deal directly with the issues which are here presented.

Balancing the Competing Interests

It is apparent from the facts here that the Senate Committee was attempting to determine the names of some of the individuals and foundations that were financing the USSF. As the majority opinion notes, quoting the Subcommittee’s brief:

“[Kjnowledge of the identities of individuals and organizations providing funds could assist in answering questions as to whether any of appellants’ funding comes from foreign sources, or from known subversive organizations and individuals.” Supra p. 1267.

The Subcommittee and the Congress have a valid legislative interest in ascertaining whether any of the money used to finance any questionable activities of the USSF came from foreign sources or subversive organizations. The activities of coffee houses and newspapers supported by the USSF were designed to, and could not possibly have failed to some extent “to interfere with, impair, or influence the loyalty, morale, or discipline of the military or naval forces of the United States.” 11 Such activities might have caused or attempted to cause insubordination, disloyalty, or refusal of duty, and as such would have constituted violations of 18 U.S.C. § 2387 (a) which provides:

§ 2387. Activites affecting armed forces generally

(a) Whoever, with intent to interfere with, impair, or influence the loyalty, morale, or discipline of the military or naval forces of the United States:

(1) advises, counsels, urges, or in any manner causes or attempts to cause insubordination, disloyalty, mutiny, or refusal of duty by any member of the military or naval forces of the United States; or

(2) distributes or attempts to distribute any written or printed matter which advises, counsels, or urges insubordination, disloyalty, mutiny, or refusal of duty by any member of the military or naval forces of the United States—

Shall be fined not more than $10,000 or imprisoned not more than ten years, or both, and shall be ineligible for employment by the United States or any department or agency thereof, for the five years next following his conviction.

If some of the contributors to the USSF were from “foreign principals,” there was a definite congressional interest in determining whether the Foreign Agents Registration Act had been complied with. 22 U.S.C. § 611 et seq. Compliance with the Internal Security Act, 50 U.S.C. § 781 et seq. as the enabling resolution stated, was also a legitimate objective of the investigation by the Subcommittee. In addition, the subject matter of these statutes was also a legitimate subject of congressional inquiry in order to determine whether these laws should be retained, repealed or amended to meet new conditions, or whether new laws were needed. It would also be a permissible goal of the investigation to determine whether any of the contributors has been mislead by the use of the name “United States” in the name of the organization into believing that the USSF was sponsored or approved by the Government of the United States or by the United States Military services or any other United States department or agency. Cf. 18 U.S.C. § 713 .

The condition and efficiency of the military is a matter of vital concern to Congress, particularly when large scale foreign military operations, such as were under way in 1970, were being un *379 dertaken. This concern arises by virtue of the constitutional grant of power to Congress:

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

U.S.Const, art. I, § 1.

* * * -x- * *

The Congress shall have Power To lay and collect Taxes, Duties, Imports and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States ....

******

To raise and support Armies

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions ;

To provide for organizing, arming and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

* -x- * * * *

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

U.S.Const, art. I, § 8.

Congress’ interest in the military, including its morale, is of long standing. In fact, the very first investigating committee ever established by Congress was directed to inquire “into the causes of the failure of the late [military] expedition under Major General St. Clair.” The committee was empowered to “call for such persons, papers and records as may be necessary to assist their inquiries.” March 27, 1792, 3 Ann.Cong. 394. It investigated matters relating to the morale of the military personnel involved, as is obvious from the committee report, which referred to desertions and discontent, 3 Ann.Cong. 1110, 1111, and found “the want of discipline . in the troops.” 3 Ann.Cong. 1111. Numerous subsequent investigations by Congress into military affairs are too well known to need citation. No elaborate authorities, likewise, need be recited for the principle that Congress has power to investigate any subject upon which it might legislate. 12 Thus the authority of Congress to make subject investigation is unquestioned. The only substantial issue that remains is whether the Subcommittee as an arm of the Congress can compel the production of the evidence of appellants’ contributors.

That the Senate Subcommittee has authority to compel the production of such evidence is fully supported by the Supreme Court’s 6 to 3 opinion in Barenblatt v. United States, supra, and its decision in Uphaus v. Wyman, supra. In Barenblatt the majority opinion, written by Justice Harlan, sets forth the precise principles that should control in the situation here presented. In that case the House Un-American Activities Committee was investigating Communist infiltration into the field of education and it sought corroboration from Barenblatt (a psychology instructor at Michigan and subsequently at Vassar) that he had been a Communist while he was a graduate and teaching fellow at Michigan during 1947 to 1950. Barenblatt objected to the Committee investigating his political and religious beliefs or into “any ‘other personal and private affairs’ ” or “associated activities” on the claim that he was privileged not to answer them by the constitutional guaran *380 tees of free speech and against self-incrimination of the First and Fifth Amendments. His claims were denied by the Committee and when he persisted in his refusal on such grounds he was tried and convicted of contempt of Congress. This conviction was ultimately upheld by the Supreme Court and it is principally with the Court’s disposal of his First Amendment claims that we are here concerned. This holding is of controlling importance here because it is substantially the same claim that the USSF presently makes, but Barenblatt’s claim was stronger because he was making a personal claim following a criminal conviction.

In disposing adversely of Barenblatt’s appeal the Court held, on the point that is of importance here, that the First Amendment does not protect against disclosure of one’s associational relationships in all circumstances:

Where First Amendment rights are asserted to bar governmental interrogation resolution of the issue always involves a balancing by the courts of the competing private and public interests at stake in the particular circumstances shown.

Barenblatt v. United States, supra, 360 U.S. at 126, 79 S.Ct. at 1093 . The earlier opinion by Chief Justice Warren in Watkins v. United States, 354 U.S. 178 , 77 S.Ct. 1173 , 1 L.Ed.2d 1273 (1957), involving a similar issue, had provided for a similar weighing process:

It is manifest that despite the adverse effects which follow upon compelled disclosure of private matters, not all such inquiries are barred The critical element is the existence of, and the weight to be ascribed to, the interest of the Congress in demanding disclosures from an unwilling witness.

Watkins v. United States, supra, 354 U. S. at 198 , 77 S.Ct. at 1185 .

So, in line with these authorities, what we must do here is to balance the competing private and public interests of the USSF and its contributors with those of the United States Government as represented by the powers and valid interests of the Subcommittee of the United States Senate. While the majority opinion refers to such balancing it does not indulge in it. When we do balance the competing interests we fail to find any factors which indicate that the individual interests of the USSF contributors are not subordinate to those of the Government as represented by the valid legislative interests of the Congress acting through the Senate Subcommittee. As pointed out above the interests of the nation in the personnel of our armed services, and the security of the nation, when coupled with the express grants of constitutional power to Congress, set forth supra, clearly authorize Congress to investigate the subject matter presented by the activities of the USSF. We so held in Barsky v. United States, supra, stating:

This existing machinery of government has power to inquire into potential threats to itself, not alone for the selfish reason of self-protection, but for the basic reason that having been established by the people as an instrumentality for the protection of the rights of people, it has an obligation to its creators to preserve itself. 167 F.2d at 246.

In my view Congress not only has the right to investigate the activities of the USSF but it also has the duty to do so; and whether the threat is sufficient to constitute a “clear and present danger” is not controlling on the power of Congress. As we said in Barsky:

We are referred to the “clear and present danger” rule expressed by Mr. Justice Holmes in Schenck v. United States [ 249 U.S. 47 , 39 S.Ct. 247 , 63 L.Ed. 470 ] and extending through the line of cases cited and discussed in Bridges v. State of California [ 314 U.S. 252 , 62 S.Ct. 190 , 86 L.Ed. 192 ], But all those cases dealt with statutes which actually imposed a restriction upon speech or publication. In our view, it would be sheer folly as a matter of governmental policy for an ex *381 isting government to refrain from inquiry into potential threats to its existence or security until danger was clear and present. And for the judicial branch of government to hold the legislative branch to be without power to make such inquiry until the danger is clear and present, would be absurd. How, except upon inquiry, would the Congress know whether the danger is clear and present? There is a vast difference between the necessities for inquiry and the necessities for action. The latter may be only when danger is clear and present, but the former is when danger is reasonably represented as potential.

167 F.2d at 246-247.

As with the power to investigate Communist activity, the power of Congress to legislate in the field to which this subpoena is directed “[i]n the last analysis . . . rests on the right of self-preservation, ‘the ultimate value of any society.’ ” Barenblatt v. United States, supra, 360 U.S. at 127-128, 79 S.Ct. at 1093 . Certainly whether Congress would decide to continue to permit tax exempt funds to be used for such potentially subversive purposes is a proper subject for congressional inquiry as are the additional subjects set forth supra at 1272. Congress frequently prohibits even admittedly nonsubversive tax exempt organizations from making political contributions, 13 and federal law has long required the filing with the Clerk of the House of Representatives of “the name and address of each person who has made a contribution to or for [any political committee, aggregating] $100 or more . . . . ” 14 If such admittedly legitimate associational activities can be prohibited or their disclosure compelled, a fortiori, there is no constitutional objection to requiring disclosure from organizations such as the USSF.

The subpoena here is also clearly directed to the disclosure of what to all intents and purposes appears to be rele *382 vant evidence on a subject the Committee was authorized to investigate and it was duly issued pursuant to proper authority and in my opinion is not overly broad. But appellants assert that their contributors have a right under the associational rights guaranteed by the First Amendment to remain anonymous, i. e., to conceal their identity. This is equivalent to saying that there is a constitutional right of secrecy as to one’s public political activities. On such contention United States v. Josephson, 165 F.2d 82, 92 (2d Cir. 1948) holds to the contrary, and Doe v. McMillan, 412 U.S. 306 , 93 S.Ct. 2018 , 36 L.Ed.2d 912 (1973), holds that one’s right of privacy (allegedly based on the First Amendment) does not protect against disclosure of the identity of students engaged in certain acts in public schools of the District of Columbia by a congressional committee report issued by a congressional committee to the extent that such disclosure was reasonably within the legislative sphere. There is no showing here that the information was not being sought for use in the legislative sphere. In addition, as Judge Prettyman remarked in Barsky v. United States, su pra:

If Congress has power to inquire into the subjects of Communism and the Communist Party, it has power to identify the individuals who believe in Communism and those who belong to the party. The nature and scope of the program and activities depend in large measure upon the character and number of their adherents. Personnel is part of the subject.

167 F.2d at 246.

The same is true here. The identity of the individual contributors and the names of the contributing foundations is central to the concern of the Congress and is part of the subject matter of the investigation. Thus, if Congress has power to investigate the USSF and other organizations engaged in activities of the same character, then they have authority to discover and if need be disclose the identity of the individuals and foundations who provide the financial support for such organizations. Since Congress has clear authority to legislate on the subject, I see no reason why they cannot investigate fully.

Coming then to the extent that the freedom of association may prevent disclosing the identity of contributors, which is the ultimate .issue before us, we come back to the answer first given above, which is that, under the conditions present in the instant case, one’s rights under the First Amendment are not absolute but must be subjected to a balancing test. In weighing these competing considerations we note it is an associational right that the USSF claims for its contributors — a claimed right of freedom of association. I am unimpressed that there is any potential denial of that right here in so far as that right is conferred by the Constitution. In this respect my view concurs with Judge White’s dissenting observation in Gibson v. Florida Legislative Committee, 372 U.S. 539, 584 , 83 S.Ct. 889 , 9 L.Ed. 2d 929 (1963) to the effect that true freedom of association would be “promoted, not hindered,” by disclosing information as to those who were supporting the USSF financially. 15 Disclosure of the identity of contributors would be a guarantee of true freedom of association. What kind of freedom is it for the contributing public to not know the identity of those with whom they are associating ? A person who does not know, and cannot learn the identity of his associates in a venture, is not truly free. He does not have sufficient information to make a free choice — his is *383 a compelled choice — compelled partially by lack of vital information — a blind choice.

This is a vital point here, because, as the majority opinion admits, even the USSF do not know who some of their substantial contributors are. The existence of these secret donors, and the likelihood that they would be disclosed if the subpoena were enforced, convinces the majority that constitutional rights would thus be infringed. However, in my view this fact is fatal to appellants’ First Amendment claims. Certainly they have no right to assert a constitutional claim that they can operate the kind of activity they are carrying out here, involving as it does active opposition to declared national policy within the armed services of the United States, and be completely unaware of the true identity of some of their substantial contributors. The USSF admitted that it does not know the source of some of its substantial contributions. One can search the First Amendment in vain to find any support for the principle that it protects or compels ignorance in such matters. These unknown contributors, as well as some of the contributors known to them, could be agents of foreign principals, or subversive individuals, or the contributing corporations or foundations might be making contributions improperly. If the USSF is engaging in the type of activities here reported and does not know the source of some of its substantial contributions it is acting recklessly and it is time that some person in authority determine the sources and the sooner the better. I see no constitutional right to privacy or secrecy in such matters. The cases cited above are to the contrary. When the USSF stepped into the public area, in my opinion, they forfeited any right to secrecy. Their acts were then public not private — and Congress has a right to investigate them.

Uphaus v. Wyman, 360 U.S. 72 , 79 S. Ct. 1040 , 3 L.Ed.2d. 1090 (1959), decided the same day as Barenblatt is to the same effect on facts which closely resemble the facts here. In that case a subpoena was issued by the Attorney General of New Hampshire, acting on behalf of the state legislature, under a resolution directing him to investigate violations of the state subversive activities act and to determine whether “subversive persons” were then in the state. The opinion by Justice Clark required the executive director of World Fellowship, Inc., a voluntary corporation maintaining a summer camp in New Hampshire, to produce the names of all persons who attended the camp in 1954 and 1955. In so holding, the Court found that the nexus between the corporation, its summer camp and subversive activities which might threaten the security of the state justified the investigation. I find the same valid nexus here between the subversive activities implicit in the allegations of the operations of the USSF and the threat to our security posed by its acts directed at the morale of the armed services, particularly so because some of those financing the questioned activities are unknown to the USSF. It is thus my opinion that the subpoena is valid and should be complied with immediately. I would thus find that appellants were not likely to succeed on the merits for a different reason than the trial court so found, and I would accordingly refuse to issue the requested injunction and the requested declaratory judgment. It may well be that the USSF has a right to continue their propaganda activities but the Congress likewise has a right to know who is doing it, because that may affect much of their existing and possible future legislation.

The foregoing conclusion also compels the findings that the subpoena was a valid exercise of legislative power conferred upon Congress by the first sentence of the Constitution 16 and that the separation of powers deprives the courts of any further jurisdiction in the mat *384 ter. The majority opinion pays lip service to the constitutional doctrine of the separation of powers but then refuses to adhere to its tenets. I find the Court’s action in this case in interfering with the powers incident to the legislative function of Congress to be a gross abuse of its judicial powers. Let us assume that when the contributions are traced one of the “substantial contributors” turns out to be a foreign principal or a known subversive organization, or that there are a number of such sources. Would any person question that the Courts were wrong to delay the committee investigation for four and possibly five years? Is that respecting the powers of Congress? What the Court should do is accord the same respect to the actions of the legislative arm that we expect our judicial acts to receive, and that was clearly not done here. Clearly the damage from disclosure is far less than the damage that would result to the valid activities of Congress if it were prohibited from determining facts necessary for informed legislation in this field. Even if nothing subversive or improper is turned up, Congress should still be able to consider whether to continue a tax exemption policy for activities such as USSF. If the cost of this valid consideration by Congress of the activities here sought to be investigated is the destruction of some financial support to the USSF through disclosure of the identity of some of its contributors, or through the fear of such disclosure then in my view it is financial support that should not have been sought in the first place.

I also dissent from that portion of the majority opinion which directs the reinstatement of the action against the United States Senators. In doing so the majority admit their inability to “cite any case, by the Supreme Court, or by Courts of Appeals, in which a federal court has finally enjoined named committee members of Congress by way of granting coercive relief of the nature sought here.” To my mind it would have been more proper, instead of asserting a negative, to rely upon the recent affirmative holding of Doe v. McMillan, supra, that United States Senators when acting in the legislative sphere are immune from suit. 17 That they were acting here in the legislative sphere is clear beyond doubt. I thus find that the action of the majority does interfere with “a textually demonstrable constitutional commitment of the issue to a coordinate political department [the Congress] [and that there is an] impossibility of [this court] . . . undertaking independent resolution [of the issue] without expressing lack of respect due coordinate branches of government, .” Baker v. Carr, 369 U.S. 186, 217 , 82 S.Ct. 691, 710 , 7 L.Ed.2d, 663 (1962).

The majority opinion, however, decides that the “subpoena would invade constitutional rights” and in my opinion it does not since the Subcommittee was acting validly in the legislative sphere and secrecy of activities is not included *385 within the constitutional guarantee to freedom of association. Also, there is no improper invasion of privacy here as public contributions were made by means of cheeks payable to an organization engaged in public activities and the nature of such public activities destroys any claim of privacy.

For all the foregoing reasons I would conclude that the balance between the individual and governmental interests here at stake must be struck in favor of the government and that therefore the provisions of the First Amendment have not been offended. Cf. Barenblatt v. United States, supra, 360 U.S. at 134, 79 S.Ct. 1081 . 18

. 1) To stimulate, develop, foster, cfoordinate, improve and encourage the educational opportunities of military personnel and to protect the civil rights of such persons, by:

2) Holding public meetings, providing entertainment and other recreational services for the benefit of military personnel;

3) Executing, sponsoring and encouraging research designed to improve the general welfare of military personnel';

4) Contributing to the costs of legal representation of military personnel;

5) Initiating programs, including scholarship programs, designed to further the educational opportunities of military personnel;

6)Collecting, assembling, exchanging, publishing and otherwise freely disseminating (a) to military personnel and (b) to the general public, knowledge and information relating to the improvement of all aspects of military life. (A.2)

. “[T]he thing which concerns us most is [one of] the war in Vietnam .” Testimony of USSF expert witness Dale Edwin Noyd of Richmond, Indiana, an Assistant Professor of Psychology at Earlin College (A. 53, 150).

. The resort to force to counter the disruptive activities of the USSF, while highly improper, is an indication as to how seriously many view some of the USSF activities.

. Barksy v. United States, 83 U.S.App.D.C. 127, 132 , 167 F.2d 241, 246 (1948), cert. denied, 334 U.S. 843 , 68 S.Ct. 1511 , 92 L.Ed. 1767 , rehearing denied 339 U.S. 971 , 70 S.Ct. 1001 , 94 L.Ed. 1379 .

. Mitchell v. Richardson (No. 71-1510, March 20, 1973) ; Massachusetts v. Laird, 451 F.2d 26 (1st Cir. 1971), aff’g 327 F. Supp. 378 (D.Mass.1971) ; Orlando v. Laird, 443 F.2d 1039 (2d Cir. 1971) ; Berk v. Laird, 317 F.Supp. 715 (E.D.N.Y.1970) ; United States v. Sisson, 294 F.Supp. 511 (D.Mass.1968).

. S. Res. 341, 91st Congress, in its entirety provides:

S. Res. 341

Resolved, That the Committee on the Judiciary, or any duly authorized subcommittee thereof, is authorized under sections 134(a) and 136 of the Legislative Reorganization Act of 1946, as amended, and in accordance with its jurisdiction specified by rule XXV of the Standing Rules of the Senate insofar as they relate to the authority of the committee to make a complete and continuing study and investigation of (1) the administration, operation, and enforcement of the Internal Security Act of 1950, as amended; (2) the administration, operation, and enforcement of other laws relating to espionage, sabotage, and the protection of the internal security of the United States, its territories and possessions, including, but not limited to, espionage, sabotage, and infiltration by persons who are or may be under the domination of the foreign government or organizations controlling the world Communist movement or any other movement seeking to overthrow the Government of the United States by force or violence.

Sec. 2. For the purposes of this resolution, the committee, from February 1, 1970, to January 31, 1971, inclusive, is authorized (1) to make such expenditures as it deems advisable; (2) to employ upon a temporary basis technical, clerical, and other assistants and consultants: Provided, That the minority is authorized to select one person for appointment and the person so selected shall be appointed and his compensation shall be so fixed that his gross rate shall not be less by more than $2,700 than the highest gross rate paid to any other employee; and (3) with the prior consent of the heads of the departments or agencies concerned, and the Committee on Rules and Administration to utilize the reimbursable services, information, facilities, and personnel of any of the departments or agencies of the Government.

Sec. 3. Expenses of the committee under this resolution, which shall not exceed $555,000, shall be paid from the contingent fund of the Senate upon vouchers approved by the chairman of the committee.

. The original resolution was adopted on May 11, 1970. It referred to the “United [sic] Servicemen’s Fund, Inc.” On May 15, 1970 the resolution was amended to refer to the “United States Servicemen’s Fund.” (A. 66).

. The Party had already disclosed all checks that it had drawn in favor of persons residing within the prosecutor’s judicial district. 283 F.Supp. at 259 . Thus there had been complete disclosure of “expenditures”, which without further showing, was the only relevant inquiry.

. Some “checks indicated that they were drawn in payment for campaign services such as knocking on doors, ringing doorbells, and other activities to ‘get out the vote’ for Republican candidates.” Pollard v. Roberts, 283 F.Supp. at 252 . Such legitimate campaign activities are no proof of illegal vote buying.

. The right of a racial minority to be protected against oppressive conduct by government because of their attempts to protect their guaranteed civil rights weighs more heavily against governmental activity than does the right of a group to be protected against activity by government to investigate what appears to be subversive activities so as to determine legislative policy with respect to the desirability of continuing existing statutes regulating their activity and authorizing tax exemptions for organizations so engaged. Four out of the five cited cases have strong racial overtones and related to states which, while great progress has been made in this respect in recent years, were still states where racial discrimination has been a recognized national problem. The cases with regard to Alabama and Louisiana involved states where the effect of prior suppression was such that the Attorney General determined that as late as November 1, 1964 local conditions were such that they were required to clear changes in local voting procedures in accordance with section 5 of the Voting Rights Act of 1965, as amended, 30 Fed.Reg. 9897, Aug. 7, 1965; 79 Stat. 439 , 42 U.S.C. §§ 1973b (b), 1973c; cf. Petersburg v. United States, 354 F.Supp. 1021 (D.C.D.C.1972) ; Perkins v. Matthews, 400 U.S. 379 , 91 S.Ct. 431 , 27 L.Ed.2d 476 (1971). This determination, involving these well recognized local situations with respect to racial matters when coupled with the objectives sought to be accomplished by the Government in these four cases, were factors that the Supreme Court would not be oblivious to in their decision. Each of these four cases is thus also distinguishable on this basis from the facts in this case.

. General Douglas MacArthur once remarked, “In war morale is to the physical as four to one.” Thus, to the extent that the USSF was striking at the morale of the troops it was striking at the jugular.

. Barksy v. United States, supra, 167 F.2d at 245 .

. The federal statutes contain many provisions prohibiting certain tax exempt organizations from making political contributions, including the following: Agricultural Hall of Fame, 36 U.S.C. § 980 ; American Legion, 36 U.S.C. § 46 ; American War Mothers, 36 U.S.C. § 98 ; AMVETS, 36 U.S.C. § 67d; Big Brothers of America, 36 U.S.C. § 890 ; Blinded Veterans Association, 36 U.S.C. § 860 ; Blue Star Mothers of America, Inc. 36 U.S.C. § 950 ; Board for Fundamental Education, 36 U.S.C. § 510 ; Boys Clubs of America, 36 U.S.C. § 700 ; Congressional Medal of Honor Society of the United States of America, 36 U.S.C. § 800 ; Disabled American Veterans, 36 U.S.C. § 90f; Federal Employees, 5 U.S.C. §§ 7321 , 7323; Foundation of the Federal Bar Association, 36 U.S.C. § 580 ; Future Farmers of America, 36 U.S.C. § 2280 ; Jewish War Veterans, U.S.A., National Memorial, Inc., 36 U.S.C. § 919 ; Ladies of the Grand Army of the Republic, 36 U.S.C. § 78i; Legion of Valor of the United States of America, Inc., 36 U.S.C. § 640 ; Military Order of the Purple Heart of the United States of America, 36 U.S.C. § 830 ; National Conference of State Societies, 36 U.S.C. § 411 ; National Conference on Citizenship, 36 U.S.C. § 440 ; National Fund for Medical Education, 36 U.S.C. § 610 ; National Music Council, 36 U;S.C. § 670; National Safety Council, 36 U.S.C. § 471 ; National Woman’s Relief Corps, Auxiliary to the Grand Army of the Republic, 36 U.S.C. § 1011 ; Naval Sea Cadet Corps, 36 U.S.C. § 1050 ; Reserve Officers Association, 36 U.S. C. § 230; Sons of Union Veterans of the Civil War, 36 U.S.C. § 541 ; United States Blind Veterans of the World War, 36 U.S.C. § 86 ; Veterans of World War I of the United States of America, 36 U.S.C. § 771 .

. 2 U.S.C. § 244 , and see generally, 2 U.S.C. § 241 , et seq., for regulation and disclosure of those associated in admittedly legitimate political activity. And it is not unknown for newspapers to be required to register the names of their owners and publishers in order to disclose to the public the names of those responsible for its statements. For example, See Minn.Stat. 331.03 (1967) :

331.03 Statement of ■ ownership. Each newspaper printed or published within the state, excepting legally qualified newspapers, shall register in the office of the register of deeds a statement of the owners, printers, and publishers of the paper and the residence of each and, if the same shall be published by a corporation, the names and residences of the president, secretary, and editors thereof. The register of deeds shall provide a suitable book in which to register the names, as herein provided, and charge therefor a fee of 50 cents.

. I would have thought that the freedom on association which is and should be entitled to constitutional protection would be promoted, hot hindered, by disclosure which permits members of an organization to know with whom they are associating and affords them the opportunity to make an intelligent choice as to whether certain of their associates who are Communists should be allowed to continue their membership.

White, J., dissenting, 372 U.S. at 584 , 83 S. Ct. at 913 .

. The U.S.Const. provides in Art. I, § 1:

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

. The majority opinion cites Doe v. McMillan, 412 U.S. 306 , 93 S.Ct. 2018 , 36 L.Ed.2d 912 (1973), for the proposition that publication of alleged defamatory literature by individuals who were not members of Congress, or on the congressional staff of the committee producing the report, is not protected action under the Speech or Debate Clause, but such is not the principal holding of the case and that portion of the Doe decision is not relevant to this case, because we do not_ here have any parties who are not either committee members or staff members. What is important here is that Doe squarely held, and the opinion was unanimous on this point, that members of Congress, members of the staff of the congressional committee, its consultant and investigator were absolutely immune under the Speech or Debate Clause when they were engaged in the legislative acts of compiling the committee report setting forth voluminous facts and performing other legislative acts connected with such report. Thus, if Doe were followed, as it should be, Senator Eastland and the Senate Subcommittee staff (including Chief Counsel Sourwine) when they were gathering facts in the “legislative sphere” would be “absolutely immune” from judicial interference. Obviously members of Congress are not immune if the authorizing resolution is invalid or if it improperly “invade [s] the privacy of a citizen,” but such is not this case.

. The trial court denied appellant’s request for an order to compel the testimony of Sourwine, Chief Counsel of the Committee, and the majority opinion would vacate such denial in order that the trial court may reconsider this matter in light of the finding that the subpoena is invalid, void and unenforceable. The majority opinion thus does not determine whether the Senate validly exercised its privileges under the Separation of Powers Doctrine of the Constitution when it adopted S.Res. 478 on October 13, 1970, 116 Cong.Rec. 36481, authorizing the Chief Counsel of the Senate Subcommittee on Internal Security to testify in response to subjeet subpoena but prohibiting him from testifying except as to matters which were “of public record.” (A. 73-73). The Resolution authorizes the Chief Counsel to give a deposition but provided, 116 Cong.Rec. 36481, certain limitations:

“but [he] shall not testify respecting matters of which lie obtained knowledge by virtue of his position and which are not matters of public record and shall not without further action by the Senate surrender any papers or documents on file in his office or under his control in his possession as Chief Counsel of the Senate Internal Security Subcommittee of the Committee on the Judiciary, Cong.Rec. October 13, 1970, S.Res. 478.”