Wednesday, March 19, 2014

The Political Lie: Should There Be a Remedy?

I recently came across several articles (including a good blog post from Doug Masson) about a case involving a law in Ohio that makes it illegal to “[p]ost, publish, circulate, distribute, or otherwise disseminate a false statement concerning a candidate, either knowing the same to be false or with reckless disregard for whether it was false or not, if the statement is designed to promote the election, nomination, or defeat of the candidate.” (The case will be argued in the Supreme Court in April.) I’m not interested in the Ohio law itself; rather, I want to sort of tease out some of the ideas around trying to eliminate lies from politics.

Now obviously, there is a big difference between a lie and an opinion. There’s nothing wrong with a candidate saying “I’m the better candidate” even if by whatever standard of measurement is used, that candidate isn’t. Nor is there a problem with a statement like “my opponent will be bad for the voters of our district”. Again, that’s really nothing more than opinion. Have at it. What do they say, “All’s fair in love, war, and politics?” Or something like that.

But let’s consider something different. Let’s say that a candidate says “my opponent was arrested for beating up the underage prostitute that he had tied to the wall in his basement while his pre-school children watched”. Obviously, the aggrieved candidate can deny the allegations, maybe even sue for defamation, but in the eyes of the voters, the damage may have been done (and that lawsuit won’t be resolved until long after the election). Should there be any sort of remedy for a statement like this?

Of course that sort of over-the-top, flat-out bullshit sort of claim is unlikely. But there is a huge gray area between that sort of claim and the type of opinion claim that I discussed above. Is there a line? And if so, where is it?

Our democratic system is supposed to work via the so-called “marketplace of ideas” where competing visions are debated and discussed so that voters can decide which vision and which candidate best reflects their ideals. But as we all know, in today’s political landscape, money plays an enormous role in campaigns. Without money, a candidate can barely get in the “game” to begin with. Perhaps more importantly, a well-funded campaign can literally drown out less well-funded opponents.

So let’s go back to my example above. What if the defamed candidate is wholly innocent of the charges leveled against him, but he doesn’t have enough money in his campaign war chest to air a television ad refuting the allegation? Should he just pack it in and walk away, leaving the world to presume that the claims against him are true? More importantly, should the well-funded candidate be permitted to use the airwaves to spread a falsehood to knock an opponent out of the race?

The problem is that few things rise to the level of demonstrable facts that can be proven to a certainty. And proving a negative (“I did not have sex with that women…”) can be nearly impossible. But there are some things that are empirically, demonstrably provable. Thus, again, the question is one of line drawing.

At the simplest (well, maybe) is the straight numbers-based claim: “The Congressional Budget Office estimates my opponent’s plan will cost $2.1 billion” when, in fact, the CBO actually said that the plan would save $2.1 billion. The claim has nothing to do with whether the plan being referenced is a good idea or not; rather, the issue is that one candidate claim a fact that is demonstrably false (and again, the question of whether it will save or cost is irrelevant; the claim was the CBO said “cost” when, in this scenario, the CBO said “save”).

Or consider the following scenario: Candidate X says “My opponent, Mr. Y, believes in man-made climate change, even though a majority of climatologists say that climate change isn’t real or, even if it is, it isn’t caused by man.” The problem with this statement isn’t that Mr. Y believes in man-made climate change or even whether climate change is real. The “lie” is the claim that “a majority of climatologists say…”. That is not true; we can count climatologists to see what a majority have said. Yet if Mr. Y doesn’t have the resources to blanket television, radio, and newspapers with facts to disprove the statement by Candidate X, then the public may be led, not only to believe in something that is incorrect, but also to vote against Mr. Y on that basis.

Or consider a statement like this: “My opponent believes that women should have the right to have an abortion at any time, for any reason, right up until the moment of birth.” But what if the opponent’s recorded position is that a woman should have the right to an abortion during the first trimester and thereafter only to save the life of the mother?

Or, to borrow (and expand) from a fairly recent episode in Houston, what if a candidate circulates flyers that appear to include a picture of the candidate but which is, in fact, not only not of the actual candidate but of someone of a different race (the idea being to convince people to vote for or against a candidate on the basis of race … the wrong race)? Or what if the flyer simply includes a fake endorsement?

In each of the preceding scenarios, the marketplace of ideas may not work or at least may not work if you think that the marketplace of ideas shouldn’t be solely dependent on which idea has more billionaires supporting it.

Think of it this way: If you buy a car because of the claims from the manufacturer that it will get 60 miles per gallon and has certain safety features but, it turns out, the car only gets 20 miles per gallon and doesn’t actually have those safety features, then you would probably have a claim against the manufacturer for fraud. If you ask your doctor to prescribe a certain medicine to help your condition after hearing an add that the medicine helps 95% of people with that condition but later learn that the medicine is actually only helpful for 5% of people and actually harms most others, then wouldn’t you feel aggrieved? In most all consumer transactions, the consumer has at least some sort of recourse against a seller who relies upon fraud to make the sale. But what happens when a politician engages in similar behavior to secure, not money, but votes?

Now I’m also sensitive to the notion that our political campaigns ought not be fought in the courts. Bush v. Gore was bad enough. But if every campaign statement or flyer was the subject of a possible lawsuit or criminal prosecution, elections could turn less on ideas and the quality of candidates and more on the political leanings of judges. Yet if politicians had to focus more on what they want to do (or not do) and less on trying to tear down the opposing candidate, then perhaps that would be a good thing.

So, on one hand I feel like we should be concerned about the use of outright falsehoods in the electoral process. Perhaps, though, that’s just the Pollyanna in me. Perhaps it’s just too difficult to set a standard of what is over the proverbial line or to find a way to decide precisely what qualifies as a demonstrable fact. Perhaps, even if we could find resolutions to those sorts of thorny questions, it would still be too difficult and have too much of a potential impact on our elections to be a workable solution. But until we find a way to even up the playing field and lesson the impact of money, especially outside money that isn’t accountable to a candidate or campaign, then I worry about the impact that outright falsehoods may play in determining who voters elect to represent them.

The only thing that I can think of that should operate as a remedy to these sorts of situations is the press. If reporters viewed it as their job to fact check claims of candidates and call out a lie when they hear it, then perhaps this all would be less of a worry. However, in today’s media, where there is so much fear of being perceived as biased, where there’s a need to tell “both sides” even if one side has no rational basis in fact or reality, and where it’s better to spend time speculating that aliens made a Malaysian airliner disappear or bemoaning the latest breakup of a celebrity couple, we can’t really expect reporters (or their editors) to engage in real journalism and report on what is and isn’t true.

Or, I suppose, we could rely on educated voters to ask hard questions of candidates and to really push them to defend their lies. But how many voters are educated enough to recognize the lie and ask the right question. More importantly, how many voters, other than in Iowa and New Hampshire I suppose, even get a chance to ask a question of a politician in the first place? And how often, when confronted by a difficult or a hostile question, do politicians even, you know, answer?

I wish that easily disproven lies weren’t a part of our politics. I wish that there was an easy and workable way to “punish” a candidate who resorts to a disprovable lie. I wish that we could simply make a politician defend a lie or answer questions about the claim. And I wish that political reporters would report on issues rather than just tell us which horse is winning. But, other than convincing reporters to engage in better journalism, I don’t know if there is a way to get there that doesn’t have unintended consequences far worse than the core problem.

I want our democracy to be the best that it can be. Perhaps “the best” has to include a few warts and problems. Perhaps it’s simply up to the electorate to become more involved and to be better consumers of political information. But there’s nothing wrong with wishing that the lie wasn’t such a useful tool.

Oh, and I can’t help but finish this post by including the text of the amicus brief filed by the CATO Institute (and called to my attention by Doug Masson):

After all, where would we be without the knowledge that Democrats are pinko-communist flag-burners who want to tax churches and use the money to fund abortions so they can use the fetal stem cells to create pot-smoking lesbian ATF agents who will steal all the guns and invite the UN to take over America? Voters have to decide whether we’d be better off electing Republicans, those hateful, assault-weapon-wielding maniacs who believe that George Washington and Jesus Christ incorporated the nation after a Gettysburg reenactment and that the only thing wrong with the death penalty is that it isn’t administered quickly enough to secular humanist professors of Chicano studies.

Anyway, I’m inclined to think that there’s not much that we can do from a legal framework to take lies out of politics. I think that we’d have a lot of trouble doing so and would probably unleash a flood of unintended consequences that might be worse than the problem. Might. So wishing that politics was free of the political lie as a useful tool is, in essence, nothing more than that. A wish.

But nothing says that we voters can’t do a better job of holding our candidates more accountable for what they say. We can form the punishment for those who lie to us by simply withholding our support, both financial and at the ballot box. And maybe that’s how the system is supposed to work.

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At Thursday, March 20, 2014 10:06:00 PM , Blogger Gary said...

Didn't a federal court, on First Amendment grounds, strike down a law that prohibited individuals from falsely claiming to have won a Congressional Medal of Honor?

At Friday, March 21, 2014 10:38:00 AM , Blogger MSWallack said...

Yes. The Supreme Court found the Stolen Valor Act to be unconstitutional a few years ago. Last year, Congress passed an updated version (the Stolen Valor Act of 2013) to try to address the concerns raised by SCOTUS. However, it is also worth noting that we do have many statutes that prohibit lies; the questions are usually ones of scope and the nature and purpose of the lie being told. Lying, on its own, isn't the problem; rather, its the use of a lie to try to obtain some kind of benefit that creates the problem and could subject the speaker to some form of liability.


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