Is Regulating Lies The Next Campaign Reform?

July 20 (Bloomberg) — You know the U.S. presidential campaign has entered its silly season when both sides have settled into the longstanding summer tradition of accusing the other of lying.

Let’s assume for the sake of argument that each side is serious — each isn’t just saying the other is lying; each earnestly believes that the other is lying. In a regulated world, the obvious question is this: Why let them get away with it?

It’s important to understand how serious an affront to discourse lying is. When we claim that a candidate has lied, we are not saying that he misspoke, or is poorly informed, or misunderstands. We are saying that he is intentionally trying to deceive the voters.

Intentional deceit is often a civil offense, sometimes even a crime. You can go to prison if you deceive potential investors about your company’s financial position. You might say that elections are different because, as the Supreme Court has repeatedly affirmed, in political campaigns we see the “fullest and most urgent application” of the First Amendment. On the other hand, the justices have also warned us that lying “is at odds with the premises of democratic government.”

Just last year, in Nevada Commission on Ethics v. Carrigan, the court ruled that there is no violation of the First Amendment when a state prohibits an elected official from voting on issues on which he has a conflict of interest. A legislator’s vote isn’t speech, the justices explained, and is cast only as a trustee for the public: “The legislative power thus committed is not personal to the legislator but belongs to the people; the legislator has no personal right to it.”

This line of thought raises an intriguing question: What about the campaign itself? Does it belong to the candidate, or to the people? The many limits we now place on how and when candidates can raise or spend money, and what must be disclosed in their advertising, strongly suggest a movement toward the second conclusion — that the campaign itself is also a sort of public trust, to be waged in the public interest.

If we don’t believe this, we shouldn’t be so worried about such matters as the influx of corporate and union dollars, or semi-anonymous PACs. If, however, we do believe it, then we should at least begin considering not only limits on what candidates spend, but also limits on what they say. After all, it is difficult to argue with a straight face that knowingly false speech by a campaign is consistent with the public trust.

On the other hand, nowadays even false speech may receive constitutional protection — at least when the speaker doesn’t gain by it. A few weeks ago, in U.S. v. Alvarez, the Supreme Court struck down the Stolen Valor Act, which punished people who falsely claimed to have received military medals and other honors. The justices dismissed the defendant’s lies as “a pathetic attempt to gain respect.” They didn’t tell us whether the result would have been the same had the defendant’s lies been intended to bring him financial or other benefits.

Candidates who lie — particularly about their opponents — are expecting benefits. The benefits they expect are votes. The legal scholar Eugene Volokh puts the question this way: “Why isn’t deceiving voters in ways that are relevant to their casting a vote as harmful as deceiving contributors in ways that are relevant to their contributing money to a charity?”

Good question. One might answer that elections are more important than the other activities we regulate — but that argument, in the current climate, might actually cut the other way. Or even if we agree on the centrality of voting to democracy (not an uncontested point), we actually allow lots of restrictions on what candidates can do for just that reason –to preserve the special character of elections. Many observers would like to return to the days of restrictions on political speech by private corporations, and perhaps by unions as well, all to ensure the cleanness of campaigning.

Yet, as the legal scholar William Marshall has pointed out, most of the corruption concerns that lead to regulation of campaigns apply with considerable force to lies by the candidates: Lies lead to misinformation, they lower the quality of discourse, they foster voter cynicism. And, one might add, with presidential campaigning now so expensive, the lies are likely to drown out even serious news media efforts to correct them.

If you don’t like the direction in which this analysis is heading, you aren’t alone — I don’t like it either. But I tend to be a First Amendment absolutist. I am old-fashioned enough to believe that the remedy for bad speech is better speech. I’m with the Veterans of Foreign Wars, who responded to the Alvarez decision by promising to “continue to challenge far-fetched stories, and to publicize these false heroes to the broadest extent possible as a deterrent to others.” As for corporations or unions, if they want to waste money at election time, that to me is a matter to be dealt with by furious shareholders or members.

If, on the other hand, you’re not an absolutist — if you worry about the corrupting power of those nasty corporations or, depending on your political sympathies, those nasty unions — then you should be just as worried about the corrupting power of intentional lies by the candidates themselves.

This year’s presidential nominees and their (wink, wink) independent supporting groups may well spend upward of $2 billion, an amount that dwarfs any serious fears of what unfettered corporations and unions might do. (By the way, just to be clear, under the U.S. Agriculture Department guidelines, $2 billion would provide more than 700 million free school lunches.)

Some states have statutes on the books that purport to punish false campaign speech in certain instances; most scholars doubt their constitutionality, but the final verdict isn’t in. There are also cases in which the courts have permitted one candidate to sue a rival for false and defamatory statements.

Of course, all of this matters only if one sees lies by political candidates as a problem. Perhaps they aren’t. Maybe they are rare, or harmless. Or so you presumably believe, if you want to regulate the expression of opinions by campaign outsiders but not lying by campaign insiders.

If the prospect of regulating lies by the campaigns troubles you — as it should — then maybe you should consider joining me over here in the shrinking corner of First Amendment absolutists.


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