Lying in Campaigns—and the Functions of Super PACs

June 10, 2013
posted by Bob Bauer

Rick Hasen recently published an interesting article on the legal remedies for malicious lying in politics. Richard L. Hasen, A Constitutional Right to Lie in Campaigns and Elections, 74 Mont. L. Rev. 53 (Winter 2013) . He fears that “false and misleading speech may be increasing” in a “highly charged partisan atmosphere, in which each side cannot agree upon the basic facts,” and that the media, including the burgeoning fact-checking corps, “are not able to meaningfully curb candidates’ lies and distortions.” Id. at 54. 55. Legal responses seem largely beyond reach, particularly after the Supreme Court’s decision in Alvarez v. United States, 132 S. Ct. 2537 (2012), which Hasen reads to indicate that “broad laws targeting false speech stand little chance of being upheld, regardless of topic.” Id. at 69.

Among several issues of note, one stands out as illustrating the complications besetting the current federal campaign finance structure. If there is more lying in politics, we might expect this to correlate with an increase in the number and activities of Super PACs. The link that comes most immediately to mind is the connection many draw between Super PAC advertising and hyperbolic campaign advertising. This may not be the only connection or even the key one. Federal candidates contending with proliferating false speech may also need Super PACs for their defense, for want under the regulatory regime of an alternative source of funds to deflect or manage maliciously false charges.

In surveying the law, Hasen notes the strong theme in the case law that false speech is best met with more speech. He notes that the view expressed in Alvarez that “the better remedy for easily-checked false speech might be counterspeech, or a database of truthfulness. Thus, even if there is a constitutional right to lie in campaigns, the remedy is for opponents of a lying candidate to credibly call that candidate a liar.” Id at 75. The problem is that more speech, if it is to be effective, depends in many and possibly most cases on more money. Candidates under siege by well-financed falsehoods do not have ready access to resources with which to respond.

A candidate who raises money to answer a false and conceivably devastating charge does so, of course, under the same limits she lives with in all her fundraising. In the unlikely event that she considers putting a sharp point on the defense and suing for libel, the legal costs will generally be subject to those same contribution limits (depending on a variety of factors, including whether the money is raised and the suit filed while the campaign is still in progress). The Federal Election Commission’s “personal use” rules allow the campaigns to use contributions for legal costs arising out of campaign-related charges; but precisely because the legal claim is campaign-related, any sums donated to support a legal action are contributions like all others, accepted within the same dollar limits. 11 CFR.1 (g)(6) and the “explanation and justification” of the rule at 60 Fed. Reg. 7862, 7877 (February 9, 1995) ; see also Advisory Opinion 1996-24 (June 27, l996), superceded in part by Advisory Opinion 1997-12 (Aug. 15, 1997) (narrowing the legal expenses candidates may fund from campaign treasuries).

If it is true that false campaign speech is on the rise, then candidates will yearn for allies able to fund the defense. One obvious source of assistance is the friendly, single-candidate Super PAC established by savvy supporters.

It will certainly be hard to persuade candidates to accept that help is on the way via the “fact-checking” functions of the media. In one respect, the media corporations performing the fact checking function stand outside the campaign process and examine it on a claim of objectivity: they are calling out misrepresentations without the intention of favoring one candidate or another. But their speech is often and overnight converted to campaign speech by a candidate heralding the “fact check” as either a charge against an opponent or a telling exhibit in her own defense. And, of course, the presentation of the fact check might raise its own fact-checking issues. Either way, the fact check occurs both inside and outside campaign; it is both campaign speech and it is not.

Further complicating the role of fact-checking is the shifting view of media corporations in this era of “polarized” news media. In the clash of voices within a media community whose members are defined, fairly or unfairly, as aligned with specific political perspectives, the candidate on the attack or on defense will take little comfort in the merits or influence with the electorate of “objective” media judgment. Developments in First Amendment law in the aftermath of Citizens United are contributing to the weakened sense of the media’s authoritative role as referee of political speech. The Supreme Court has cautioned that that media entities occupy the same position as other corporations when expressing political opinions:

There is no precedent supporting laws that attempt to distinguish between corporations which are deemed to be exempt as media corporations and those which are not. “We have consistently rejected the proposition that the institutional press has any constitutional privilege beyond that of other speakers.” [citations omitted]. With the advent of the Internet and the decline of print and broadcast media, moreover, the line between the media and others who wish to comment on political and social issues becomes far more blurred.

558 U.S. 310, 352. Along these same lines, Professor Michael McConnell has argued that all independent commentary on candidates should be protected under the Press Clause, equating in this way the advertising of a Citizens United with the “Pinocchios” awarded by The Washington Post fact-checker.

Neither limited campaign funds nor the media fact-check will provide many candidates the protection they believe they need from false campaign claims. Nastier campaigns, if we are facing them, will only burnish the appeal of Super PACs.

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