Why is it legal for politicians to lie?

Politics, NakedLaw, News, Opinion

As you may have heard, a fair amount of lying—or to be more charitable, “the making of assertions which contradict actual fact”—has taken place during the course of this election season. Even before the January Iowa Caucuses, the fact-checking website PolitiFact awarded Republican presidential nominee Donald Trump its 2015 “Lie of the Year” award for the many falsehoods he’d uttered thus far.

His rival, Democratic presidential nominee Hillary Clinton, has even hosted a live fact-check feed on her website to expose Trump’s fabrications during their debates. Not that Clinton is immune either; many news organizations, such as The Guardian, now live-blog the debates to catch both candidates lying or distorting some fact.

Lying in politics is as much a part of history as it is part of just about any political campaign. And the sad reality is it’s perfectly legal.

Courts stand up for the right to fib

In April of this year, the Supreme Court unanimously ruled that politicians can lie during political campaigns. In Susan B. Anthony List v. Driehaus, the Court ruled a politician’s right to lie during a campaign is protected under the free speech provision of the First Amendment.

In that case, the Susan B. Anthony (SBA) List, a pro-life group, tried to erect billboards during a congressional campaign accusing incumbent Steve Driehaus (D-Ohio) of supporting “taxpayer funded abortion” because he voted in favor of the Affordable Care Act. Driehaus objected, filing a complaint under an Ohio law that prohibits false statements during a political campaign. His complaint cited the fact that since 1976 the Hyde Amendment has prohibited the use of federal funds to pay for abortions, except when rape or incest is involved.

After losing the election, Driehaus withdrew his complaint, but the SBA List pursued a separate suit that challenged the Ohio law, claiming it violates the First Amendment right to free speech. Two lower courts ruled the group could no longer pursue the challenge because the election was over and there no longer was basis for “sufficient imminent injury.” And it was those lower decisions that the Supreme Court unanimously reversed, thereby establishing the precedent allowing lying in campaigns.

Without a federal law to the contrary, this precedent essentially became law. Fact checking, in other words, is up to the voter, not the courts. If you think a politician is lying to you, then you are free not to vote for that politician.

Media not much help

But it’s not all on the courts or even the politicians. As journalist Neal Gabler notes, “If candidates are not accountable, neither are the political media.”

Indeed, after an arguably timid moderating performance at NBC’s Commander-in-Chief Forum, Matt Lauer was roundly criticized for, among other things, his “soft-ball” line of questioning. That prompted a discussion about the responsibilities of moderators during candidate forums and debates.

Are journalists obligated to call out candidates for misstatements or outright lies? And to what extent is the media responsible for ensuring the public is well informed on matters of public importance? Especially during presidential election campaigns?

There once was a time when the media at least attempted to present facts along with issues. It was known as the Fairness Doctrine, a Federal Communications Commission policy introduced in 1949. The policy was intended to make news broadcasters devote airtime to discussing controversial matters of public interest, and to do so in a balanced manner. However, in 1987 the FCC repealed the Fairness Doctrine, whose constitutionality had been challenged repeatedly since the late 1960s.

How to figure out the truth

So if the candidates can say just about anything they want, and the news media is not obliged to inform the public, what campaign promises are to be believed?

Take one example: Trump has promised repeatedly to build an “impenetrable, physical, tall, powerful, beautiful, southern border wall” between the United States and Mexico, and to make Mexico pay for it. As common sense would dictate, Mexico would be under no legal obligation to foot the bill. So is it a lie? Some unequivocally say so. At the very least, we are dealing with an absence of evidence beyond Trump’s insistence that he will make it happen, along with his belief in his own powers of deal-making and persuasion. But it’s up to the voter to decide if the plan is realistic, if Trump actually intends to do what he says, or whether the entire endeavor is a good idea in the first place.

So candidates can lie during campaigns, the media doesn’t press the matter, and even if the candidates aren’t lying, they still may lack the authority to implement their seemingly outrageous campaign promises.

To quote from the Gabler piece again, “What this means is that our politics is no longer politics in the traditional sense of policy and governance. It is, as most of us realize, a show, a game, an ongoing reality TV saga.” It’s a situation that shows no sign of changing during this election, or others yet to come.