Are Laws Requiring Truth-telling in Elections Bad?

Supreme Court allows challenge to law banning lies in elections

The Supreme Court on Monday allowed a challenge to an Ohio law banning lies in political campaigns to move forward.

REUTERS

The Supreme Court on Monday allowed a challenge to an Ohio law banning lies in political campaigns to move forward.

WASHINGTON — The Supreme Court on Monday allowed a challenge to an Ohio law banning lies in political campaigns to move forward, ruling that two advocacy groups could challenge a law that makes it a crime to make knowingly or recklessly false statements about candidates that are intended to help elect or defeat them.

Lower courts had dismissed the case, saying the groups seeking to challenge it had not faced imminent harm sufficient to give them standing to sue. Justice Clarence Thomas, writing for the court, said the groups “have alleged a credible threat of enforcement” of the law and so were not barred from pursuing their challenge to it.

The case was brought by Susan B. Anthony List, anantiabortion group, and Coalition Opposed to Additional Spending and Taxes. Both had sought to criticize Steve Driehaus, former representative and a Democrat, in the midst of what turned out to be his unsuccessful 2010 run for reelection to the House.

They asserted that his vote in favor of President Obama’s health care law, the Affordable Care Act, could be interpreted as one “for taxpayer-funded abortion.” The Supreme Court took no position on the truth of that statement.

The justices said Susan B. Anthony List does not have to wait until it is prosecuted under the law to claim its First Amendment rights have been infringed.

The court did not directly rule on the constitutionality of the law, but the decision sends the case back to a lower court to consider the question.

Driehaus filed a complaint against the antiabortion group with the Ohio Elections Commission, which makes preliminary determinations and can recommend criminal prosecutions. It issued a finding of probable cause that the group had violated the law. Driehaus dropped his complaint after he lost the election and before the case had gotten much further.

The Sixth US Circuit Court of Appeals in Cincinnati dismissed the groups’ suit challenging the law, saying they no longer had anything to worry about.

In his opinion reversing that ruling, Thomas said the groups had shown that they intended to repeat their critique of the Affordable Care Act against other candidates and that “the threat of future enforcement of the false statement statute is substantial.” That meant, he said, that their lawsuit could move forward.

Susan B. Anthony List president Marjorie Dannenfelser said the group would move quickly to try to have the law tossed out, saying the truth of political statements should be judged by voters.

Both liberal and conservative groups have criticized the Ohio law, saying it stifles the wide debate that is crucial during elections, including negative speech that may sometimes twist the facts.

Even Ohio attorney general Mike DeWine declined to defend the law in court, citing constitutional concerns. He sent his deputies to argue for the state instead. The law carries a possible penalty of six months in jail.

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69 thoughts on “Are Laws Requiring Truth-telling in Elections Bad?

  1. I do want to add, after the back-pat I gave myself above, that I kind of agree with William’s complaints about public service unions. They can be dangerously powerful, rent-seeking entities.

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  2. walto: I can tell you that without us gubmint boobocrats turning down horrific filings all over the country on a daily basis,

    Yes, law enforcement makes countless decisions every day, but if one of those decisions is challenged, it will go to a court or a jury.

    I certainly hope you don’t think claims processing is equivalent to determining truth in advertising.

    I know a bit about claims processing, because a couple decades ago I wrote software for submitting mortgage insurance claims. We coded thousands of pages of regulations into our software. We made it impossible to file an invalid claim without committing deliberate fraud.

    I personally wrote the EDI code for submitting electronic claims. Makes me wonder exactly why this has suddenly become so difficult.

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  3. petrushka,

    I don’t do “claims processing.” I do rate and form review. Every year companies want to jack insurance (or utility) rates and restrict coverages (or options)–regulators (sometimes) don’t let them. Sometimes the regulators (and/or Attorneys General) are in bed with the companies. That’s bad, but not much worse than it would be if there were no regulation at all.

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  4. I know this one pretty well. The regulators in Florida prevented rate hikes in homeowner’s insurance. The immediate result was that State Farm cancelled my policy And eventually pulled out of the state.

    I now pay eight times the State Farm rate for insurance that covers nothing that is likely to happen in Florida.

    That worked out well.

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  5. Regulators have to know what they’re doing. But if the companies in Florida just used the output of their hurricane models since Katrina, you’d be paying far more than eight times the pre-model rate. It’d be more like 20 times. Global warming is real, but insurance companies actuaries are even more real.

    Incidentally, I’ve been thinking a bit more about the Ohio law since I was shown that it was a sitting Congressman that filed the complaint (I hadn’t grokked that). I have to admit that makes me nervous. I don’t like the idea that some guy who’s responsible for funding (and may have been responsible for the hiring of) the people who decide whether some statement is true can file a complaint under that law. My first thought is that I don’t think it should be available to incumbents–where a conflict of interest is definitely possible. That seems unfair, but incumbents have an unfair advantage anyway and a little equalization might not be a bad thing.

    Or your idea of a recall form of implementation might be best. Still, there’d have to be some kind of initial plausibility hoop or something–or recall elections would be happening every day. And some group would still have to determine whether the bar was reached. Bi-partisan citizen’s groups don’t work. Prolly a non-elected judge. I’m not sure.

    I haven’t thought a lot about this (obviously)–but I don’t like false advertising in elections any more than I do in retail products. And it’s even more dangerous since that horrible Citizen’s United decision.

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  6. I would pay market price, but at least I’d have insurance.

    Two things. An actuarial formn of insurance would assign risk according to location and according to the soundness.of structure. Political solutions reward people who take advantage of unsound policies and punish the prudent.

    Insurance for oceanfront property should be exponentially more expensive than inland locations, and lenders should provide incentives for strong structures. Instead the prudent subsidise the imprudent. Same thing happens in health insurance.

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  7. “An actuarial formn of insurance would assign risk according to location and according to the soundness.of structure.”

    That’s what’s done. There’s a hearing with company actuary witnesses v. Division and often A.G. witnesses. There are also hurricane modelers, witnesses regarding meteorology, reinsurance costs, profit models, etc. etc. If there’s no settlement (which there usually is), a judge decides.

    You should go to a hearing sometime. They’re interesting.

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  8. I would like to see an interesting process that leads to a healthy insurance marketplace. I don’t know of any instance where price regulation led to long term consumer benefits.

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  9. This is all off-topic, but Insurance and utilities–just as Sidgwick said. Read Dickens for some examples of what insurance companies and railways did prior to being regulated. You have some Indo-Bengali Assurance Company or Cross-Continental Railroad take a bunch of premiums or investments and then just hit the road. Left lots of people penniless. There are not and have never been “free markets” in that sort of stuff–there have been con games, monopolies, and regulated markets. That’s it. Pick your poison.

    But on the subject of free markets (so-called) and the main focus of this site, it intrigues me that so many of the same people who insist on the absence of any direction to the “invisible hand” that is said to guide free market benevolence also proclaim loudly that the universe needs to be directed by a Divine Hand to have produced anything good at all. I love that.

    ETA: Also, I don’t know about you, but I much preferred the pre-Teddy Kennedy/Ronnie Reagan regulated market for airline tix to the current clusterfuck. I also preferred the TV experience before it was deregulated (by Ronnie again) to such an extent that there are constant commercials on every channel. The point is, there is control by the populace or by the dollar, and each is liable to create its own style of tyranny. But…..which do you prefer?

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  10. walto: You have some Indo-Bengali Assurance Company or Cross-Continental Railroad take a bunch of premiums or investments and then just hit the road

    I am not opposed to law enforcement, and not politically opposed to regulation for safety and for soundness of banking. I suppose prevention is better than cure when it comes to industries that promise to manage your money.

    Except for prices. I haven’t seen that work.

    The content of commercial television is not the product. The audience is the product. I avoid commercials by not watching. Actually, I do watch one broadcast show.

    I only watch on average an hour or so a day, and most of it is paid for by me. I subscribe to Amazon and Acorn. Commercial free because I pay for it.

    I agree that this is off topic. I will not post again unless we have a thread for it, and even then I usually avoid politics.

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  11. We’ve got mutuals here too–but they’ve basically morphed into the same entities–generally don’t behave any differently than anybody else.

    And then…sometime down the road….the demutualization pot at the end of the rainbow!

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  12. walto said:

    And it’s even more dangerous since that horrible Citizen’s United decision.

    Yeah. Things were MUCH better when an apparatchik “fifth estate” and the entire entertainment industry could provide hundreds of millions, if not billions of dollars of unreported “in kind”, unaccounted-for political contributions disguised as “news” and entertainment programs and movies, all for the big-statist crony-capitalists running the machine. Prior to the “Citizen’s” reform, the amount of money anyone else could bring to the table had been severely limited, gaming the system in favor of whomever the mainstream media propaganda machine favored.

    There’s no keeping money out of politics. Laws that seek to limit such monies are only for the foolish idealists that think the media isn’t skewing their information politically every second of every day.

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  13. William, do you notice that every time you bemoan problems of too little regulation– (e.g., “an apparatchik “fifth estate” and the entire entertainment industry could provide hundreds of millions, if not billions of dollars of unreported “in kind”, unaccounted-for political contributions”) you think the answer is that it’s better to make things worse?

    The solution to too little regulation of elections isn’t less regulation of elections.

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  14. walto:

    The solution to too little regulation of elections isn’t less regulation of elections.

    In the case of politically skewed regulations, less regulation is often the correct answer. One should always look first to see if regulation is the problem before adding more regulations. The problem with washington is that they see every problem as one that some kind of regulation can fix – even problems caused by regulations.

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  15. BTW, I’m certainly not in favor of regulating the media for political position content. I’m also not in favor of regulating donors except in the case of foreign donations.

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  16. William J. Murray: The problem with washington is that they see every problem as one that some kind of regulation can fix – even problems caused by regulations.

    It’s hardly surprising that legislators see legislation as the answer to everything.

    Just noticed that, according to Wikipedia, US incarceration rates are still the highest in the world.

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  17. Some folks say Americans average three felonies a day. It’s just a matter of who’s in power which ones get enforced against whom.

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