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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.

Harvard And Yale Faculty Need Their Lounges

May 25 (Bloomberg) — I rise to defend the faculty lounge, that magical idea factory that has become, in the current presidential campaign, an object of unexpected derision.

Mitt Romney and his supporters have developed the unfortunate strategy of referring to President Barack Obama as a product of “the faculty lounge.” I would like to appeal to them, respectfully, to stop.

Some articles have pointed to the oddity of the swipe against the Democratic incumbent, given Romney’s two Harvard degrees. The problem isn’t the Republican candidate’s resume. It’s his effort to transform membership in a university faculty into a pejorative.

If what he means is that the professoriate at most universities is overwhelmingly Democratic, then the claim might be true if not particularly interesting, akin to criticizing a Republican on the grounds that he’s a member of the PGA. I suspect that those who refer to the faculty lounge, conjuring the image of a physical location, mean to imply something more sinister: a place where the left hatches its nefarious schemes to undermine American values.

I will admit to a certain bias here, having been a professor for 30 years. Nevertheless, I would suggest that university faculties, and the lounges where they do indeed occasionally congregate, constitute among America’s greatest triumphs — and a major competitive advantage.

Families from all over the world — and, here at home, from across the political spectrum — send their children to America’s great colleges and universities. What higher education offers isn’t merely a credential. At its best, the campus remains the world’s freest forum for the thoughtful and reflective exchange of ideas. The symbol of that exchange is the faculty lounge.

To believe in the faculty lounge is to believe that ideas matter, that people can and often do respond to appeals not to their self-interest but to their reason. As the economist Deirdre N. McCloskey argues persuasively in her excellent book “Bourgeois Dignity: Why Economics Can’t Explain the Modern World,” it is better ideas more than anything else that have built the West. You cannot explain the Industrial Revolution, for example, simply by “adding up the material causes.” There are reasons that some countries adopt particular technologies, laws or norms that others could but don’t. One of those reasons, McCloskey contends, is better ideas.

Once we concede the power of ideas, we must envision places where ideas are nurtured. They do not arise fully grown. They emerge gradually, through dialectic aided by argument and reason, and although that conversation might take place anywhere, our colleges and universities pursue as a particular part of their mission the cultivation of the idea.

I am the first to admit that there is some degree of silliness and pretension on the best of campuses. A few years ago, I had occasion to chat with an Ivy League professor who had published a vehement attack on a controversial book. Skeptical about some of his claims, I asked him a couple of elementary questions, and he soon admitted that he had never read the book in question.

Yes, there is the occasional case of political correctness gone awry. Everyone has a favorite horror story. Consider the sad but well-known tale of a state university employee who was threatened with disciplinary action for reading a book from the university library about how students at Notre Dame fought against the Ku Klux Klan. (School authorities backed down after bad publicity.)

There are also on campuses a fair number of people who seem unaware of the possibility of rational or reflective disagreement, or who refuse ostentatiously to read essays expressing opinions different from their own. What makes this sort of anti-intellectualism memorable is precisely that it is the exception rather than the rule.

As a contrarian by nature, I tend to argue and question a lot. In my experience, those who police the rules of correctness most adamantly are often same as those whose contributions to scholarship are the slightest. Serious intellectuals welcome serious criticism.

Why, then, this urge to attack both university faculties and the lounges where they gather for coffee and argument? One answer was offered half a century ago by Richard Hofstadter in his Pulitzer-Prize-winning “Anti-Intellectualism in American Life.” The disdain for the highly educated, he points out, stems from the supposition that the dominance of the intellectual is undemocratic.

This concern is as old as the U.S. It was present in the age of the Founders, who were seen as part of a “patrician elite” that oppressed the common man. Those fears flamed into the movement of Jacksonian Democracy, which burned across the young nation in the first half of the 19th century. Among its legacies is the requirement in many states that judges face the voters.

Conservatives tend to dislike Hofstadter, whose contempt for those whose politics differed from his own was legendary. But on this point — that the public distrusts elites — he is correct. Consider the case of Abraham Lincoln who, although fiercely intelligent, lacked formal education. In part because of this, Republican Party leaders viewed Lincoln with skepticism, but as biographer David Herbert Donald points out, Lincoln’s handlers intentionally packaged their candidate as the self-made rail-splitter to enhance his appeal to voters who were suspicious of elites.

Even today, few if any candidates run for office by emphasizing their educational credentials. The universities have metamorphosed into a Star Chamber: feared but needed. Everyone wants the fruits of the basic research heavily done on campus. Every family dreams of college education for its children. All of us need the ideas that the campuses nurture. Indeed, conservative critics should recall that it is not only Obama’s health-care reform law but also President Ronald Reagan’s economic program that was largely birthed in the faculty lounge.

At its best, the university trains the mind. “The Nation’s future,” the Supreme Court has observed, “depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth ‘out of a multitude of tongues, [rather] than through any kind of authoritative selection.’”

Intellect and authority are indeed antipodes. But the largest threat to the freedom that has made our colleges and universities the best in the world is not the criticism of outsiders; it is the choice of insiders to withhold dissent. Whatever their reasons — to advance the goals of a political movement, say, or because of a fear that unintellectual colleagues might vehemently disagree — their reticence is counterproductive. Here is Hofstadter again: “Intellect is dangerous. Left free, there is nothing it will not reconsider, analyze, throw into question.”

Left free: There’s the point. The principles of the faculty lounge at its best include tolerance of disagreement, preference for reason over authority, and avoidance of slogan and emotional appeal. These are the principles that those of us who teach (and, one hopes, all adults) should model for our students, and encourage them to carry with them into the world beyond the groves of academe. The better we do our work, the better our politics will be.

So, please, Governor Romney. If you think President Obama has bad ideas, say so. If you want to criticize his record, go ahead. All of that is politics as usual. Please don’t drag the faculty lounge into it. Leave that space free for our serious, uncensored arguments. Our democracy will be the better for it.

(Stephen L. Carter is a Bloomberg View columnist and a professor of law at Yale University. He is the author of “The Violence of Peace: America’s Wars in the Age of Obama,” and his next novel, “The Impeachment of Abraham Lincoln,” will be published in July. The opinions expressed are his own.)

Baseball, Tim Pawlenty, And Celebrity Politics

Aug. 18 (Bloomberg) — You might have missed the news that several courthouse guards are being investigated for accepting autographed baseballs from Roger Clemens, one of the greatest pitchers of the modern era, after his mistrial on charges of lying under oath about steroid use.

This might seem like a minor offense, but it isn’t. Suppose the guards were accused of receiving $200 in cash — one estimate of the resale value of the autographed baseballs. Suppose further that the person handing out the bills happened to be an accused drug dealer, whose case had similarly ended in a mistrial. Presumably we would be outraged, and the story, rather than crawling across the bottom of the screen on the sports channels, would be leading the evening news.

But here is the trouble: Had the offer of a gratuity come from the drug dealer, one assumes the guards would have rejected it out of hand.

Why the difference? Because Clemens is a celebrity, and in the presence of celebrity, people seem to believe it is perfectly normal to act ridiculous — if by ridiculous we mean abandoning whatever notions of duty, morality and common sense that ought to guide our judgment. Celebrities, too, have a societal license to act ridiculous in their own presence, and often do — and, oddly, they often increase the value of their celebrity as a result.

Much has been written over the years about why we follow the doings of celebrities at all, and why we often become goofy in their presence. Some theorists point to data suggesting that celebrity worship fulfills a need formerly satisfied by religious affection. Others, armed with brain scans, contend that celebrities touch our romantic selves, so that our irrationality around them is much like our irrationality around our loved ones. Whatever the reasons, the effect of celebrity is undeniable.

Most of the time, our silliness is harmless. Standing alongside the barrier outside a night club or an awards show, shrieking and swooning as the famous go by, might be a peculiar way to expend energy, but it does no particular social damage. In 1966, when Willie Mays hit the 535th home run of his career – – making him, at the time, the greatest right-handed home run hitter ever — umpire Chris Pelekoudas stepped up to shake his hand as he crossed home plate. Pelekoudas reported himself to the league office for this act of partiality, and was told not to worry about it.

But our love of celebrity can also cause terrible harm — especially when the celebrity culture overflows its banks and pollutes the roiling waters of our politics. In a democracy, politics at its best is a serious business, calling upon all the best traits of our character — reflection, steadfastness, courage, tolerance, compassion, determination. When we instead conduct politics according to the rules of celebrity, we bring into democracy all that is worst in our culture.

Politics of Celebrity

Last week former Minnesota Governor Tim Pawlenty dropped out of the race for the Republican presidential nomination after finishing third in the Iowa straw poll, a contest that few voters can accurately describe. (Neither can many journalists, evidently: You do not have to hunt far to find dueling stories on whether, for example, anyone who shows up at the door can vote.)

I am not a registered Republican, and I have no particular brief for Pawlenty. But there is something troubling in the media descriptions of the ex-governor’s failings — that he seemed boring on television, for example, or that he never connected with voters. (Not, of course, that there have been any votes cast in the 2012 race yet.)

These criticisms are unrelated to the quality of his ideas, or his capacity to think through tough issues and reach wise decisions. They are, rather, the sorts of comments that a Hollywood producer might make in explaining why a particular actor just isn’t right for his upcoming film.

One sees a version of this battle being fought even today over the legacy of Ronald Reagan. What made him so successful and popular a president? To liberals, it was the power of his communication skills, his ability to connect with voters; to conservatives, it was the power of the ideas he was communicating. I do not pretend to know the answer in Reagan’s case, but I do think it is better for democracy if, in this case, the conservative side is right.

The theory of self-governance rests critically on the notion that we as citizens will take the time to inform ourselves about the issues before making our choices. Unfortunately, as the novelist John le Carre once noted, we tend to reward making a good point badly, and punish making a bad point well. It is style, not substance, that draws our attention.

Triumph of Glibness

The culture of celebrity politics too often rewards the mouthy, the glib and the outrageous, and hurts those who are thoughtful. What becomes important is not being able to present and defend good ideas, but having something succinct to say all the time. If a political candidate answers a question by saying, “That’s a tough one, I’ll have to consult with my advisers and think it over,” we should be delighted; instead, we will probably dismiss him as not ready to lead. Abraham Lincoln possessed a reedy speaking voice and a distracting accent associated at the time with the uneducated; in today’s politics, he would be a miserable failure.

So much of the energy of the partisan is nowadays committed to attacking, to sloganeering, to emoting. We all complain about the raucous absurdity of much of the cable world, but enough people tune in to keep the profits coming. Perhaps what appeals to the viewer is not the battle of great ideas but the conflict itself. Research cited by Daniel L. Wann and his collaborators in their book “Sports Fans: The Psychology and Social Impact of Spectators” suggests that at least among men, a contest becomes more interesting if they know that the teams are bitter enemies.

Yet here one is reminded of the wisdom of Bertrand Russell, who warned that if we never spend time alone with our thoughts, we never have thoughts of our own; we only have other people’s thoughts in our heads. Writing back in the 1930s, Russell argued that we should work less hard, because the vapidity, as he saw it, of popular entertainment was a function of our perpetual exhaustion: We are too tired to think, and so choose to be amused instead.

But if we take democracy seriously, we cannot let politics become amusement. Self-governance is hard work, and a self- governing people should require of its public debate more than telegenic candidates mouthing snappy answers.

(Stephen L. Carter, a novelist, professor of law at Yale and the author of “The Violence of Peace: America’s Wars in the Age of Obama,” is a Bloomberg View columnist. The opinions expressed are his own.)

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