The desire to censor that which offends, embarrasses, or angers us is natural and has existed as long as man has had the power and inclination to silence his fellow man. However, once unleashed, the censor’s torch may be difficult to extinguish and may even rage out of control. This danger is manifested today in the speech and actions of the campaign finance “reformers.”
The most famous American censor was the late 19th century vice-crusader Anthony Comstock. A puritanical former dry goods salesman from New Canaan, Connecticut, Comstock made it his life’s work to rid America of the “hydra-headed monster” of obscenity. To this end, Comstock was influential in drafting and guiding the first federal obscenity statute through Congress. Armed with the new authority of this statute, Comstock was unequivocally successful in curbing the types of speech he loathed. Near the end of his career, he once bragged that he was responsible for the destruction of 160 tons worth of obscene material.
Perhaps America is better off without the “smut” Comstock destroyed during his lifetime. That debate is best left to the culture warriors, even though there is unlikely a definitive answer to such a debate. What is known is that Comstock’s statute has been used throughout the years to censor quite a bit more than just salacious material alone. It has been used to prosecute publishers of literary masterpieces, vendors of great works of art, and even the late great standup comedian Lenny Bruce. It’s no surprise that once lit the censor’s flame raged out of control. It is in its nature to do so.
Today, the campaign finance reformers have lit a similar blaze and the results have not been pretty. Enraged by “unaccountable” 527s, advertisements that offend their sense of decorum, and countless other types of legitimate political speech, the reformers have continually pursued legislative and regulatory censorship as the preferred means to their end. Compared to Comstock’s obscenity statute, federal campaign finance laws have censored a far greater amount of free speech over the years. In the process of trying to silence “illegitimate” political speech, the reformers have allowed these laws to eliminate unique collective advocacy, types of issue advocacy, and even Stephen Colbert’s hilarious faux candidacy.
As an alternative, the reformers should heed the example of former Supreme Court Justice Sandra Day O’Connor – someone who shares their general concerns about the influence of money in elections. In an op-ed published in today’s Wall Street Journal, Justice O’Connor expressed concerns about the influence of special interest advertising in judicial elections. Although Justice O’Connor disapproves of these ads (she believes that at least some cross the “boundary of decency”), it is significant that she endorses a constitutionally sound proposal and spurns the temptation of the censor’s torch. Instead of proposing contribution limits or expenditure limits, Justice O’Connor suggests that voter education, a merit-based selection process, and the creation of campaign-conduct committees are ways to curb what she views as the negative effects of interest group attacks.
After listening to countless First Amendment cases during her tenure at the Supreme Court, Justice O’Connor knows from firsthand experience that speech restrictive responses to public policy dilemmas are inherently dangerous and unwieldy. The reformers should heed her example, cool their rhetoric, and pursue a speech-neutral agenda before more free speech is sacrificed to the campaign finance regime’s flames.