Now that the Massachusetts election is over there’s an issue that arose during the campaign that I thought was worth looking at further. There was a controversy in the Massachusetts election wherein one candidate accused the other of lying. Shocking! According to a Washington Examiner story (not a preferred source but adequate for this post since the accuracy of the accusation isn’t relevant to my post) in a campaign flyer/mailing Martha Coakley charged that Scott Brown would have Massachusetts hospitals turn away all rape victims. Well, I suppose there are people who might actually believe that claim unquestioned but I’d certainly hope most people would immediately see the idiocy of the charge and understand there is another side to this story. And in fact, according to the Examiner, Brown simply 
offered an amendment to a 2005 bill requiring hospitals to make emergency contraceptives available to rape victims. Brown’s amendment provided an exemption for medical professionals with sincere religious beliefs in opposition to birth control measures and, if there were no personnel available to offer the emergency contraceptives (at a Catholic hospital, for example), then the patient would be offered transfer to another facility. Brown’s amendment failed but he voted FOR the original bill. Coakley’s charge is just plain false and misleading and Brown’s campaign has demanded a retraction or they will sue.
Coakley made her charges in a state with a law in place prohibiting blatant lies in political campaigns; but many states have no such law and there is an outstanding ruling that declares such laws unconstitutional. Massachusetts law states:
No person shall make or publish, or cause to be made or published, any false statement in relation to any candidate for nomination or election to public office, which is designed or tends to aid or to injure or defeat such candidate.
No person shall publish or cause to be published in any letter, circular, advertisement, poster or in any other writing any false statement in relation to any question submitted to the voters, which statement is designed to affect the vote on said question.
Whoever knowingly violates any provision of this section shall be punished by a fine of not more than one thousand dollars or by imprisonment for not more than six months.
The law is similar to one that existed in the state of Washington until it was declared unconstitutional by a divided State Supreme Court in 2007. The majority opinion in that case declared “The notion that the government, rather than the people, may be the final arbiter of truth in political debate is fundamentally at odds with the First Amendment.” The minority opinion impugns “those who would turn political campaigns into contests of the best stratagems of lies and deceit, to the end that honest discourse and honest candidates are lost in the maelstrom.”
OK, this is a tricky one. I want to allow a lot of room for free speech flexibility and permit the genuine unintended mistake without legal consequences; but I want to make it unattractive for candidates to deliberately lie and mislead the public, gain a political victory, and then lamely apologize without consequence. I wrote a post recently about the candidacy of Linda McMahon for US Senate from CT and noted her abysmal voting record in recent years. That record has become a source of attack ads by her chief GOP rival Rob Simmons who criticized her for voting in only two elections since 2000. McMahon’s campaigned furnished a letter from the Registrar showing she actually voted in the elections of 2000, 2002, 2004, 2008, and 2009 and blasted Simmons for peddling false and misleading information. The problem is that the letter from the Registrar, dated December 22, corrects a letter dated September 23 with the information that she voted only twice (and never voted in ANY primary since registering to vote in 1984 – wow!). This kind of error by the Simmons camp cannot be considered malicious in any way and the freedom to criticize a candidate’s record must be intact. The length of elections and the widespread availability of records make blatant errors fairly easy to debunk and leaves the quality of the message and the delivery by the messenger of paramount importance. That’s why politicians are increasingly “slick.” No matter how smart a candidate and no matter how “right” on the issues, if you’re going to deal with malicious attacks you need to do it with poise and composure.
But what do we do about harsh attacks that are, by any definition, lies designed to mislead the public just a day or two before a very tight election? Let’s assume for a moment that on Sunday Scott Brown’s campaign started a series of ads charging that as state attorney general Martha Coakley encouraged state prosecutors to be lenient on rapists and this resulted in the release of a convict who subsequently killed a man and raped his wife and daughter before killing them. Now assume the charge is loosely based on two unrelated events: 1) an email Coakley sent the Boston DA sharing her thoughts about the pending rape trial of a minor with no previous record, and 2) the malicious killing of a family by a previously convicted rapist freed on parole. There is insufficient time remaining to create an effective response ad and the commercial is running on every local station each hour. If the ad effectively throws the election to the Brown what, if anything, should be the repercussions for the lie? As things stand now telling lies is a very effective strategy by keeping the opponent on the defensive and showing a stark contrast between yourself and your opponent even where you completely misrepresent their position. Taken to the extreme we end up electing a House full of unrepentant liars (some may say that’s what we’ve always had!). What, if anything, do we do about it?
My view, in a nutshell, is to prohibit new campaign public media ads within 72 hours of an election. New campaign mailings must stop within 5 days of an election. Some may consider that unfair to the challenger or underdog but I’m more concerned with the integrity of the political process. This would not be a ban on advertising but would limit ads to those already in the public domain. Television and radio stations would not be allowed to accept new ads from the campaigns. Of course there would be nothing to stop a candidate from making new statements to reporters or in campaign speeches but the breadth of that coverage is more limited and would largely require equal air time to the opposing candidate. I’m up in the air about the repercussions of breaking that law but I’m convinced there must be a recall mechanism for blatant disregard of the law.
One more thing: this could get much uglier. The very first post I wrote for Political Realities dealt with the McCain-Feingold campaign finance law and the case involving Hillary: The Movie before the Supreme Court. The Court heard the case in a special session last September presumably to expedite a decision ahead of the 2010 election – but four months later we’re still waiting for their decision. A broad finding in favor of Citizens United (and against McCain-Feingold) would open up the floodgates of corporate and special interest money in local and national elections. No longer will there be any need for politicians to get dirty slinging mud at their opponents – the special interests will be more than happy to do it for them. The opportunities for outrageous attack ads will increase as will the coffers of politicians unhindered by ethical values. Given the already distasteful partisan political climate in our country the 2010 and 2012 elections will make “nasty” a drastic understatement describing local and national campaigns. To those of you strongly opposed to McCain-Feingold I say, be careful what you wish for.
Banning new ads within 72 hours of a vote-interesting. Media can and is used, sometimes unsrupulously, by both sides. I,too, await the SC’s decision.
I live in a Motor Votor state. For the uninitiated, that means that my ballot comes to me in the mail. In a regular election, the electorate has the ballot several weeks before actual election day, but can send it off at anytime prior to the election or drop off at a polling place. It would be entirely possible to levy outrageous charges at an opponent, something that seems plausible but heinous at the same time. A picture of a candidate hugging a staffer could be spun as an affair, accusing an incumbent of shady associations- whatever. Any situation that might feed media frenzy and could be misconstrued. However innocent, the candidate accused would be in a position to answer questions about “allegations”-true or untrue- and the media would report it all. Meanwhile, at home, the electorate has ballot in hand, gets an idea that this candidate is bad news,marks their ballot for the other guy and mails it off. So what if the next day the story comes out that the allegations are totally false? The damage would be done…
It’s a state issue, but speaks to the media question, and I keep waiting for the first nasty campaign manager who figures out how to really manipulate the situation.
You raise some very good points, Mike. It seems the mete of a campaign manager is how bad he or she can make the other candidates look. I have long hoped for a time when a political campaign would be ran on the merits of the candidates, but I don’t expect that to happen any time soon.
Is there a way to effectively police a campaign and the rhetoric that flies back and forth from both sides? Personally, I have to wonder if it is possible.
Concerning your point about the money special interest groups pour into a particular campaign, I have also long despised these groups. I may go against the grain concerning this, but I include the NRA in this as well, although they are not the only ones by no measure. That is one reason I am not a member. I think these groups have entirely too much influence in our elections and campaigns. I honestly wish there was a way to at least limit this influence, but I am not at all sure that is possible.
This is a tricky one indeed. Most politicans during a campaign will tip toe around the edges of a lie, but will seldom be caught in a direct one. These guys are good at this as most are attorneys. Its never the truth, but the appearance of the truth that counts with them. They are always speaking to the jury, the voter and are very careful. Personally I think they should be able to say anything they want and let the public and the fourth estate hold them responsible and not the courts.
I have an issue in state elections with money that comes in from other states period. I think that a great place to start would be for only people that are constituents of those who are running for state offices be allowed to donate to those candidates, and only the candidates themselves should be able to run ads, cut out all of the special interest groups.
How can the national political parties, or citizens of other states, know what is best for another state? In a perfect world the voters in a particular state would have an understanding of what is true and what is not about the different candidates, whereas people from across the country really know little about that candidate.
Thanks for your comments. Mr Pink Eyes I share the intention of your comments (make local elections local) but the First Amendment makes it difficult to support. Ron, I tend to agree we should leave it to the public and the news media to ferret out the lies; but my issue was with the last minute whopper that cannot be adequately researched and rebutted before the damage is done. Shouldn’t there be a way to hold the nominee accountable above and beyond the $1000 fine in the Massachusetts law? Larry, not only is it very difficult to limit special interest group influence but with the ‘wrong’ decision in the Hillary case it will get much, much worse. McCain-Feingold has problems but the alternative, especially in the current arch-partisan environment, may get seriously ugly.
My opinion is that lying in a campaign no matter what it’s about should not be allow. Obama has lied from the start and I guess all the politicians considers it fine to lie to the American people as long as their commander and Chief does!
Well, Mike, we’ve got the decision on Citizen’s United vs. FEC. Seems really regressive as far as campaign finance reform is concerned, and seems to equate corporations with people. Prepare for 2010 elections to be an all-out cash slug out of corporate interests.
Your thoughts?