Stop Eviscerating Campaign Rules

My Verdict co-columnist Vikram David Amar recently addressed the U.S. Supreme Court’s handling of Susan B. Anthony List v. Driehaus, which involves an Ohio statute imposing criminal liability for making “a false statement concerning a candidate [for any public office] knowing the same to be false or with reckless disregard of whether it is false or not, if the statement is designed to promote the election, nomination or defeat of the candidate.” This statute is being attacked as unconstitutional under the First Amendment.

Every American cherishes our First Amendment. I certainly do. And I do not disagree with a word Vik offered in his column. But everyone should understand what is going on and how we are dismantling virtually all of the rules that call for restraint, civility, and decency in political campaigns, as we create a political system where those who have the most money and tell the best lies are going to win.

So maybe before creating what some commentators have called a right for politicians to lie, the High Court should take a closer look at what it is doing to American politics. And then end or postpone this rampage on election laws.

Political False Statement Laws Have No Chilling Impact Anywhere

As I see it Susan B. Anthony List v. Driehaus is merely a stalking horse case. For the past several decades there have been efforts by those with causes to find lawsuits in the lower federal courts that can be used as vehicles to change a body of law for ideological reasons. It is happening on both the right and the left, politically. It is a highly sophisticated, and now acceptable, form of “champerty and maintenance.” While I have not researched into the motives of those who have pursued and pushed the Susan B. Anthony List case to the U.S. Supreme Court, and I seek to cast no aspersion on them, I would be stunned to learn this was not just such an undertaking.

The plaintiffs in this lawsuit, a couple of big-league deeply funded conservative Ohio-PACs—the Susan B. Anthony List and the Coalition Opposed to Additional Spending & Taxes—claim that their speech has been “chilled” by the Ohio law criminalizing false statements in a political contest. More specifically, and in real-world language, they were hesitant to trash incumbent Congressman Steven Driehaus with a misleading and less-than-honest claim that he supported “taxpayer-funded abortion” when he voted for the Affordable Care Act (aka ObamaCare). It was, in effect, a standard negative political attack.

The SBA List claims its speech was “chilled” when a billboard company refused to post their negative ad after being threatened by Driehaus’s attorney. And COAST claims it was reluctant to send a blast email with the same charges after it saw what happened to SBA List. And both plaintiffs are worried about their future speech being “chilled” by the Ohio Elections Commission, which must refer any cases for prosecution, which is why they want the law declared unconstitutional. The U.S. Court of Appeals for the Sixth Circuit did not buy their claims, finding no chilling effect whatsoever. So it has moved on to the U.S. Supreme Court.

What no one seems to notice is this Ohio statute has never chilled anyone’s speech before, and it has been on the books since 1995, without a single prosecution. It is only a misdemeanor statute. Ohio’s leading newspaper, The Plain Dealer, could not find any criminal referrals in the past decade. What The Plain Dealer did find was that the seven-member, bipartisan Ohio Election Commission had received “176 complaints involving allegations of false and misleading statements in the past three years and found violations in 14 cases—which is 8 percent of the time.” And what happened to those miscreants obviously terrified the SBA List and COAST: “In 13 of the 14 cases, the commission just let the violation stand as the only penalty in the matter. The only fine levied in the past three years came in a 2010 case against a township trustee candidate whose complaint the [Commission] considered to be ‘frivolous’ and rang up a $5,775 fine.”

But the U.S. Supreme Court is much more sensitive to “chilling effects” than most election officials and other federal judges, particularly, it seems, those judges who live and work outside of Washington who actually can distinguish between “hot air” and “chill.” So most commentators believe that the High Court will recognize the plaintiffs’ standing to bring this action (when they could easily toss this case) and send it back to the Sixth Circuit with instructions to kill this dastardly statute. In short, more messing with longstanding American election laws.

Why Not Declare the Ohio Defamation Law Unconstitutional as Well?
Vik Amar notes in his column how the Ohio law operates and that the Election Commission must find a statement to be false with “clear and convincing” evidence. And should it be one of the rare (so far unprecedented) cases that is referred for a misdemeanor prosecution, then presumably the prosecutor would have to prove beyond a reasonable doubt that it was a “knowingly false” statement, or made “with reckless disregard of whether it is false or not.” Both these are very high evidentiary standards. (In fact, it is doubtful that the twisted-truth statement that former Congressman Steven Driehaus supported “taxpayer-funded abortion” would ever be shown false beyond a reasonable doubt, so claiming fear of criminal prosecution is a really unreasonable reach.

While the SBA List and COAST claimed that their speech was “chilled” by the Ohio statute, what I suspect is really troubling them is that Ohio—like many other states—has a process that can shine a spotlight on twisted, unfair, and misleading political attacks, for even when the Ohio Election Commission finds “clear and convincing” evidence of falsity, it does not pursue the misconduct as a criminal matter.

What is very noticeable about Ohio’s political false statement statute is that it embraces and requires a standard of falsity that parallels the Constitutional standard set forth in New York Times v. Sullivan and it progeny, which has developed in the context of American defamation law. That standard has been incorporated into Ohio’s libel and slander statute only by judicial decisions interpreting and applying the statute. But no one is attacking that law. Because no one needs to be concerned that any political group is going to be confronted under the defamation statutes.

American defamation law is all but non-existent, for it has been largely neutered. Anyone running for elected office is by definition either a “public official” or a “public figure,” thus subject to several decades of federal case law that made it all but impossible to prevail in a defamation action, not to mention that these proceedings are over-the-moon costly and extremely protracted. There is no body of law more dysfunctional than American defamation law, which has been federalized since Sullivan. This is the work of big media, which does not want to be troubled with litigation when they get it wrong or trash people in the news. Not one political group hurling false and defamatory statements feels that its speech is the least bit chilled by defamation laws because those laws simply do not work in the political arena.

But hopefully, the Supreme Court will think twice before it eviscerates another campaign law in the name of the First Amendment. The Ohio Election Commission does have a procedure to shine light on shabby negative campaigning that employs misleading and false statements, and while such activity has become the norm in our politics, rest assured given the unlimited new money the High Court has now permitted to be injected into politics, it is going to be getting much worse. Unfortunately, it has been decades since anyone on the Supreme Court has had the knowledge and experience of actually having run for elective office. Thus, before this never-elected-to-anything Court fiddles further with elections laws, it should step back and look at the chaos it has already inflicted on the system.

As Vik Amar noted in his piece, clearly four Justices wanted this case. However, while I am not optimistic, I am hopeful that the other five might vote to stop rewriting election laws from the bench without really understanding what they are doing.