Author Archives: Sheila

What Is The Comstock Act?

During the recent Supreme Court argument over Mifepristone, Justices Alito and Thomas both raised the possibility that a case brought under the Comstock Act would be stronger than the one being argued. (Legal scholars have noted the multiple deficiencies in the current case, which–had Trump not appointed an intellectually-dishonest extremist to a Texas federal judgeship–would never have reached the Supreme Court.)

What, you may ask, is the Comstock Act?

Back in 1999, I edited “Free Expression in America: A Documentary History” for Greenwood Press. Producing the book required me to identify, reprint and explain documents that told the evolving story of America’s free speech jurisprudence. I began with “Foundations of Liberty”–the Magna Carta, Areopagitica and Cato’s Letters–proceeded through Common Sense, the Virginia Declaration of Rights, the First Amendment and several others, and on through America’s various battles with censorship to the late 1990s.

In a section titled “1900-1950: A Half-Century of Paternalism” I included “Birth Control and Public Morals: An Interview with Anthony Comstock.” I introduced the interview by noting that contemporary readers might come away considering Comstock a caricature. (Even at his most influential, he was widely ridiculed.) Comstock founded the Society for the Suppression of Vice, and he saw vice pretty much everywhere he looked. He campaigned against the publication of “vile books,” which he argued were responsible for “debauching” young men, and it isn’t an exaggeration to say that he considered any publication dealing in any way with sex to be “vile.” He was particularly offended by then-current efforts to provide women with birth control information.

The Act reads as follows:

Every article, instrument, substance, drug, medicine, or thing which is advertised or described in a manner calculated to lead another to use or apply it for producing abortion, or for any indecent or immoral purpose; and

Every written or printed card, letter, circular, book, pamphlet, advertisement, or notice of any kind giving information, directly or indirectly, where, or how, or from whom, or by what means any of such mentioned matters, articles, or things may be obtained or made, or where or by whom any act or operation of any kind for the procuring or producing of abortion will be done or performed, or how or by what means abortion may be produced, whether sealed or unsealed; and

Every paper, writing, advertisement, or representation that any article, instrument, substance, drug, medicine, or thing may, or can, be used or applied for producing abortion, or for any indecent or immoral purpose; and

Every description calculated to induce or incite a person to so use or apply any such article, instrument, substance, drug, medicine, or thing—

Is declared to be non-mailable matter and shall not be conveyed in the mails or delivered from any post office or by any letter carrier.” 

The Comstock Act was passed in 1873, and although it hasn’t been explicitly repealed, most lawyers believe that intervening case law has rendered it unenforceable. 

Justices Alito and Thomas are so intent upon banning abortion they have evidently overlooked the sweep of the Act, which would go far, far beyond preventing abortifacients from being mailed. Comstock was intent upon preventing the dissemination of anything and everything he found “vile,” including, in his own words “intemperance, gambling and evil reading.” He classed contraceptives with pornography, and when questioned about that, replied that “If you open the door to anything, the filth will pour in and the degradation of youth will follow.”

Even during his lifetime, Comstock was widely regarded as an unbalanced anti-sex zealot; his Society for the Suppression of Vice was intent upon censoring books, magazines or other materials describing or touching on sex, very much including medical information and information about contraception. (The Comstock Act at one time prevented the mailing of anatomy textbooks to medical students.)

In Comstock’s fanatic view, “Any indecent or immoral use” covered a lot of ground, much of it misogynistic. There’s a reason a recent biography of him is titled “The Man Who Hated Women.”

Trying to resuscitate Comstock’s “zombie law” will raise some interesting legal questions. Can the anti-abortion provisions be severed from the clearly unconstitutional censorship provisions of the Act? Does the prohibition against use of the U.S. mail extend to Federal Express and other private carriers? 

Are Alito and Thomas so desperate to control the lives and reproductive liberties of American women–so desperate to take us back to a time when women were breeding property– that they’re willing to revive Comstockery? 

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The 50-State Strategy

Remember Howard Dean’s introduction of the 50-state strategy? Dean insisted that Democrats needed to contest seats in every single state–even in states like Indiana, where gerrymandering has given the GOP a vise-like, if arguably illegitimate, hold on governance.

Dean was right.

In a recent Substack newsletter, Robert Hubbell quoted a woman named Jess Piper, who had taken that advice to heart, and had run in a Missouri state legislative race. In 2022, approximately 44% of the Missouri state legislative races had been uncontested, i.e., no Democratic candidate. Jess decided to run for the state’s legislature in District 22 .

Hubbell quoted Piper’s analysis about that experience.

I did not win. I got my butt kicked by a man who is very nice, but who ran on two issues: making sure his grandkids had access to guns and making sure they didn’t have to eat plant-based, meat-substitute burgers. I’m not kidding…here is an article.

But Piper definitely did not consider the experience to have been a waste of time and money. Far from it.

So what did happen? I made the GOP nominee spend money. I made him show up to town halls and forums to debate me. I made him knock doors. I made him call voters. I made him talk about abortion and school funding and roads and hospitals when all he wanted to talk about was Hunter Biden’s laptop and COVID masking.

I knew my chances, but by God I knew I was going to make my opponent work for the seat rather than just handing him an uncontested victory and a trip to Jefferson City. I didn’t relent and he couldn’t avoid talking about the things that matter.

And there’s this: what happens when you make the GOP spend money in a mostly Republican voting district? They can’t spend it chipping away at mostly Democratic voting districts. The GOP has to drop money into rural races that they haven’t had to think about for decades.

As Hubbell went on to point out, Jess’s run for office was equal parts offense and defense. “Her chances of success were long, but the fact that she put up a fight may have helped a Democrat in another district win. The importance of that fact cannot be overstated.”

What too many Democrats in Red states overlook is that the absence of a contest–for city council, for the state legislature, for other local races–is an incredibly effective vote suppressor. I have previously shared a conversation I had with a graduate student a few years ago; an election was coming up, and I did my usual “sermonizing” about the importance of voting. I asked for a show of hands–how many of you are registered? How many of you will definitely vote? Then one of my better students raised his hand. “Professor, I’ve always voted, but I now live in Noblesville. I went online to confirm that my polling place hadn’t changed, and then I looked at the ballot. There are no contested races. Why should I vote?”

In his small, Red town, no one had bothered to be a Jess Piper, so there was no incentive for Democrats–or for that matter, Republicans– to turn out.

An analysis of Indiana’s politics suggests that if turnout increased substantially in supposedly “safe” districts, some number of those districts wouldn’t be safe. The process of gerrymandering, after all, relies on previous turnout figures. Add to that the fact that rural areas–at least in Indiana–are rapidly losing population, and many progressive urban folks are moving to small towns that are effectively suburbs of Indianapolis, like Danville and Noblesville.

For too many years, Indiana’s Democrats–like those in Missouri– have given up in advance. Legislative districts are left uncontested, and Democratic campaign contributions are sent to candidates in other states, where the donor thinks there’s a better chance of that candidate winning.

It’s a self-defeating attitude and it creates a reinforcing cycle of negativity.

In his newsletter, Hubbell also gave a shout-out to a group called Every State Blue. The organization’s website underscores the message:

When we don’t run and support Democrats, the people living in those districts feel abandoned, ignored… forgotten. Meanwhile, GOP nominees get free passes.

Every State Blue knows there’s a better way. Working together, we can show up, make sure no Democrat is left behind … no voter is left without a choice … and no Republican gets a free ride.

When the only races being contested are the ones the party pooh-bas think there’s a chance of winning, Democrats have already lost. Worse, they’ve defeated themselves.

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Thank You, Nikki Kelly!

I have vented several times about the political advertisements being run by candidates vying for their parties’ nominations in Indiana’s upcoming primaries. (Actually “parties’ nomination” is inaccurate: all of the ads I’ve seen have been for Republicans –Democrats have fewer primary battles and are presumably saving their dollars for the general election.)

It’s bad enough that the GOP combatants have engaged in out-and-out racism and claimed ridiculous “outsider” status; virtually all of the candidates for Governor have ignored the issues that a governor actually faces in favor of culture-war appeals. A governor has zero authority over America’s southern border, for example, but these Republicans clearly believe that an appeal to anti-immigrant sentiment (those people are brown!) coupled with wild accusations that immigration is the source of illicit drugs (it isn’t), will win the cold hearts of their primary voters.

The ads are offensive to anyone who has the slightest understanding of the difference between federal and state jurisdiction. I can only assume they are evidence of one of two things: either the candidates themselves are ignorant of basic legal and constitutional boundaries, or–more probably–they believe their likely voters are uneducated and unaware of how government works.

Obviously, I’m not the only one who has come to that conclusion. Nikki Kelly, of the Capital Chronicle has addressed the issue. 

Up until now, the GOP gubernatorial candidates have mostly fallen back on national talking points. But that does a disservice to Hoosier voters who want their next governor to be focused on Indiana issues.

And despite what many of their ads say, that’s not China or the southern border or even online safety — which are largely federal issues.

Kelly has a surprising ally in her quest for a discussion of legitimately local issues: Indiana’s incumbent Republican Governor, Eric Holcomb. Holcomb has thus far withheld an endorsement of any of the candidates.

It appears that even Gov. Eric Holcomb is getting impatient. Though he has declined to endorse any candidates, he recently had some interesting comments about the race.

“My thought process is: there are a lot of folks who approach me that are undecided because they’re uninformed about where (the candidates) stand on issues that a governor has to address on a day in day out basis.

“We can repeat words. And (in) most of those words I see broad agreement within the candidates,” he said. “But there are items that come across the governor’s desk and what the Legislature grapples with that aren’t being discussed that I think should be more in detail.”

The Governor mentioned several of the issues where voters deserve to know the candidate’s positions: economic development strategies, infrastructure financing, the state’s mental health challenges, the extension of broadband, and a sustainable Medicaid program. Those are, after all, issues with which the next administration will have to contend.

Kelly adds to that list. How will the next governor approach taxation–especially given the GOP’s fixation on reducing the “tax burden”? If taxes are cut, where will the state get the funds to maintain–let alone repair and/or expand–infrastructure and essential services?

What about support for Indiana’s death penalty? The state can no longer get the drugs used in executions. “Do candidates support eliminating the death penalty and saving money on court battles? Or, would they move to other execution methods? And how does their position square with their anti-abortion rhetoric?”

Where do these culture warriors stand on education? As Kelly notes, Republicans have controlled Hoosier education for over 20 years, yet we have seen no improvement. Test scores and graduation rates have stagnated while the state continues to rob public schools of critically-needed resources in order to fund vouchers for private–overwhelmingly religious–schools.

And what about abortion, and the numerous other issues involved in health care? As Kelly says,

When a candidate can answer these questions with depth and specifics they will earn my vote. And I don’t necessarily have to agree with them philosophically on every matter — they just have to be willing to speak beyond slogans and political dog whistles.

Well, these candidates are certainly going beyond dog whistles, but not in a direction either Kelly or I would endorse.

Nothing I’ve seen in these ugly political spots gives me any confidence that any of them are interested in tackling the real work of governing. I used to mentally divide political candidates into two groups: those who want to do something–improve governance–and those who want to be someone. Someone important.

I’d put all the candidates running these deplorable ads in the latter category.

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About Those “Outsiders”

In Indiana, Republican candidates for Governor and Congress are spending megabucks on increasingly horrifying political ads. (Forget “dog whistles”–the ads for Governor, especially, are blatantly racist). Although it’s difficult to choose the very worst, a candidate for Congress in Indiana’s Fifth District probably wins that close vote: he faults the incumbent for sending tax dollars to Ukraine when we have an enormous problem in the U.S.– trans women competing in women’s sports.

Glad he has a sense of proportion…

Interestingly, the gubernatorial candidates’ attacks on each other have been for taking the few positions with which I actually agree, a tactic that certainly shows what they believe their base Republican voters think. If they’re correct, those voters are “base” in both senses of the word.

If there is a “through line” in these awful ads, however, it is the repeated claims to be “outsiders” rather than “career politicians.” It’s a laughable label for most of them: Braun has been a Senator for six years (granted, an undistinguished one, but it’s been six years) and he was a state legislator before that; Crouch was a County Auditor, served nine years in Indiana’s legislature and is currently Lieutenant Governor; Brad Chambers–who has really leaned on his “outsider” status–was Indiana’s Secretary of Commerce. Etc.

Not only are these claims to outsider status bogus, they’re stupid. Would you hire a job applicant who proudly proclaimed  ignorance of your business and emphasized a prior lack of experience?

James Briggs recently addressed this issue, somewhat tangentially, in a column for the Indianapolis Star.  Briggs was talking about his opposition to term limits–an opposition I share–but his reasoning is pertinent to the posturing of these “outsider” candidates. As he wrote:

State Rep. Chuck Goodrich, a Republican running in Indiana’s 5th District primary against Rep. Victoria Spartz, recently bragged about signing a term limits pledge, adding, “It’s time to break the grip of career politicians & ensure elected officials serve the people, not their own interests!”

That’s completely wrong.

A 2006 National Conference of State Legislatures report looked at states with legislative term limits and concluded “high turnover and relative inexperience create a steep learning curve for committee chairs and members, who are often less knowledgeable than their predecessors,” which “can result in increased influence by staff, bureaucrats and lobbyists.”

Essentially, term limits take power from the career politicians and hand it over to people who are less accountable to the public.

In Congress, the “newbies” are inevitably dependent upon and influenced by Congressional staff, who are familiar with the arcane rules of that body– and unelected by and unknown to the voting public.

Much like term limits, it’s popular to say the government should run like a business. I can’t think of any other economic sector where you’d find strong agreement for the statement, “The more experience you have, the worse you must be at your job.” We have a lot of job openings at IndyStar and I can assure you no one is running around yelling, “Find me some journalism outsiders!”

Briggs points out what most of us know: a professional body is more effective when it’s run by people who know what they’re doing.

The longer lawmakers serve in those jobs, the more they can learn how to navigate complex webs of rules and systems. They can also gain policy expertise, which is helpful for creating laws affecting virtually every part of people’s lives. They can develop relationships to help advance their goals.

The problems we face with government, especially in Indiana, aren’t a result of legislative longevity: they are a result of gerrymandering and low voter turnout. Briggs is dead-on with this paragraph:

Obviously, some elected officials don’t deserve to stay in office forever. The ills attributed to unlimited elected terms can more appropriately be linked to partisan gerrymandering, which creates safe spaces for ineffective, lazy and corrupt officials to win election after election. Yes, term limits would eventually knock those people out. So would competitive elections.

Let me repeat that last sentence: So would competitive elections.

I miss “career politicians” like Dick Lugar and Lee Hamilton. Joe Biden has been able to pass transformative legislation because he is a “career politician” who understands how government works, and how to get things done. I don’t know which of Indiana’s “know-nothing” Republicans will wind up on the general election ballot, but this year, for once, the Democrats have an unusually strong state ticket featuring experienced public servants who actually know how government works and what the positions they’re running for entail. They are also right on the issues.

Vote Blue, and make the GOP candidates actual outsiders.

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The “Great Replacement” Fixation

I first encountered the “Great Replacement” theory when I read about the neo-Nazi, “Unite the Right” march in Charlottesville. The marchers–bearing tiki torches–reportedly chanted “Jews will not replace us.” (Those chanting were subsequently called “very fine people” by then-President Donald Trump.)

Since I never watch Fox News, I’d missed Tucker Carlson’s full-throated endorsement of that particular conspiracy theory, but as time as passed, I’ve come to understand its roots, and the reason it appeals to White Americans terrified by the prospect of losing cultural dominance. America’s demographics are changing, and it is probable that Whites will be a minority population within a few years. Meanwhile, legal and cultural changes have allowed women and minority folks–Blacks, Jews, Latinos, LGBTQ+ citizens–to become more prominent. Television anchors, elected officials, movie stars and various other celebrities  increasingly come from groups that have been previously marginalized.

It’s no longer possible to ignore these changes.

The result is a palpable panic on the part of those Whites–mostly men, but also some women–who believe that their rightful place in society has been usurped. And that fear of replacement, that realization that they will need to share status with people they disparage, requires a villain. It can’t simply be an accident that “those people” are gaining in numbers and influence. It must be a plot!!

Jamelle Bouie recently wrote about Elon Musk’s obvious fascination with and belief in the “Great Replacement Theory.” Musk recently elevated a slick propaganda film pushing the theory on X (formerly Twitter), confirming the devolution of that site into a cesspool of far-Right anti-Semitism and racism.

Musk is especially preoccupied with the racial makeup of the country and the alleged deficiency of nonwhites in important positions. He blames the recent problems at Boeing, for example, on its efforts to diversify its work force, despite easily accessible and widely publicized accounts of a dangerous culture of cost-cutting and profit-seeking at the company….

Is diversity the problem at Boeing, or is it a shortsighted obsession with maximizing shareholder value at the expense of quality and safety? Musk, a wealthy shareholder in various companies — including his own, Tesla, which is being sued by Equal Employment Opportunity Commission for allegedly allowing racist abuse of some of its Black employees — says it’s diversity.

Bouie goes on to discuss Musk’s “current obsession” with the “great replacement,” the far-right accusation that liberal elites are “deliberately opening the southern border to nonwhite immigration from Mexico, South and Central America in order to replace the nation’s white majority and secure permanent control of its political institutions.”

The “great replacement” was part of the centerpiece of Tucker Carlson’s message to viewers during his time on Fox News. It is touted by a number of anti-immigrant, white nationalist and white supremacist groups. It was featured prominently at the Unite the Right rally in Charlottesville, Va., in 2017, where neo-Nazis chanted “Jews will not replace us.” And it has inspired at least four separate mass shootings, including the 2018 Tree of Life synagogue shooting in Pittsburgh (11 killed), the 2019 Christchurch shootings in New Zealand (51 killed), the El Paso shooting the same year (23 killed) and the 2022 supermarket shooting in Buffalo (10 killed).

It should go without saying that the “great replacement” is idiotic. There is no “open border.” There is no effort to “replace” the white population of the United States. Racial diversity is not a plot against the nation’s political institutions. And the underlying assumption of the “great replacement” — that, until recently, the United States was a racially and culturally homogenous nation — is nonsense.

Not only does acceptance of the theory require people to ignore inconvenient facts, it rests–as Bouie points out–on a fundamental fallacy: that racial and ethnic identity also and inevitably translates into political identity. In other words, it assumes that Blacks and Latinos will always vote for Democrats.

I think Bouie has identified the most consequential flaw of today’s GOP.

Republicans used to understand that politics is the art of addition–that winning a political contest requires reaching out to independents and others–including minorities– who haven’t previously voted for you. Instead, MAGA Republicans are doubling down on subtraction; not only do they fail to reach out to members of minorities who might consider supporting their candidates (the Black community, for example, is overall fairly socially conservative), they are even doing their best to expel “RINOs” –including anyone who dares to criticize Trump– from what has become a defensive cult.

The irony is that the GOP is hastening the day when a replacement will actually occur–the replacement of the GOP with a sane center-Right political party.

A large enough defeat in November will speed that process.

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