COMMENTARY

No lie: Political campaign un-truthiness is OK

5/3/2014

To lie or not to lie; that is not the question. Of course, “truthiness” as comedian Stephen Colbert puts it, is preferable to lying like a dog.

But everyone lies. Even saints lie, then they repent. Those who tell whoppers in the heat of a political campaign seldom do.

As long as negative, misleading, underhanded, dirty campaigning sways elections, why not twist the truth or discard it outright? Mudslinging works.

Voters say they’re tired of being inundated by false campaign ads that pass for political discourse. But every campaign season, they listen and watch what influences their vote.

Sixteen states, including Ohio, have enacted laws that punish political lies. Ohio’s law is being challenged in a case before the U.S. Supreme Court.

An anti-abortion group is leading the challenge with another group. Petitioners argue that Ohio’s ban on political lies told about a candidate during a campaign is an affront to constitutionally protected political speech.

The Susan B. Anthony List was accused of violating state law during the 2010 congressional elections. At issue was a campaign billboard the group wanted to post against then-U.S. Rep. Steve Driehaus (D., Cincinnati).

It charged him with supporting taxpayer-funded abortions by voting for the federal health reform law. It was a lie.

Public funds for abortion have been banned since the 1970s. President Obama signed an executive order that bars the Affordable Care Act from funding abortions. So Mr. Driehaus filed a complaint with the Ohio Elections Commission to block the ad on the grounds that it violated the state’s false-claims law.

The commission found probable cause for his complaint to advance. But Mr. Driehaus withdrew his complaint after he lost his re-election bid. The Susan B. Anthony group was not mollified and pushed for its day in court.

Members objected to the law itself, and maintained that even the threat of prosecution chills free speech. Lower courts didn’t buy the argument.

They ruled that, absent any prosecution under Ohio’s political-lie ban, the groups challenging the law had no legal standing to litigate. The high court justices, with a history of broadening application of the First Amendment, are likely to disagree.

Chances are they’ll remand the Ohio case to lower courts and let them resolve the constitutional challenge over restricting political speech. If necessary, the Supreme Court will revisit the matter.

But arguments before the high court last month revealed a mind-set on the bench that suggests the justices believe Ohio — and by extension in 15 other states — are wrong to criminalize political speech. The same court that said lying about one’s own military record was protected speech and not a federal crime seems inclined to lean the same way about state laws that punish false political speech.

“Don’t you think there’s a serious First Amendment concern with a state law that requires you to come before a commission to justify what you are going to say?” asked Justice Anthony Kennedy, a swing vote on the court.

Liberal Justice Ruth Ginsburg wondered whether even a probable-cause finding by the commission “is going to diminish the effect” of speech by members of a group, because “they have to answer this charge that they lied.”

Conservative Justice Antonin Scalia likened the elections commission to a “ministry of truth” and implied that “to be dragged” through its preliminary proceeding was harm enough. Political campaigns, added pundit Jack Shafer of Reuters, are about telling voters what they want to hear, not giving legal dispositions.

Wait, critics howl. If government can regulate truth in advertising, why not truth in political campaigns?

Here’s why: Determining the validity of a product’s claim is different from a panel of appointed (partisan?) bureaucrats determining the legitimacy of political claims.

McDonald’s can’t sell Big Macs as healthy. But political combatants can hurl falsehoods against one another during an election. It’s up to voters to decide what is true or rubbish in the political arena. And it’s up to voters to punish or reward political candidates at the ballot box.

Susan B. Anthony List vs. Driehaus is about protecting the right to stand on a political soapbox during an election campaign and concoct whoppers about adversaries.

That’s no lie. And it’s nothing courts or commissions should judge or penalize as a crime.

Marilou Johanek is a columnist for The Blade.

Contact Blade columnist Marilou Johanek at: mjohanek@theblade.com