George Santos and the Right of Candidates to Lie


George Santos—who is scheduled to take the oath of office as a new member of Congress tomorrow—lied to the voters about nearly his entire biography. He lied about his religion and family history. He lied about his education. He lied about his work experience. He lied about who supposedly worked for him.

Will Santos suffer any consequences for his lies?

He certainly could. The House of Representatives has the power to refuse to seat Santos. Article I, Section 5 of the Constitution makes the House the arbiter of the “qualifications of its own members.” The 1969 Supreme Court decision in Powell v. McCormack forbids a chamber of Congress from adding to the constitutionally enumerated list of qualifications, but one of the short list of constitutionally mandated requirements is in doubt here.

To be eligible to serve in the House, a person must have been a U.S. citizen for at least seven years. Santos has sometimes described himself as the son of Brazilian immigrants. If that is accurate—that is, if Santos was born in the United States—then he is a U.S. citizen. But Santos has also sometimes suggested that he was born in Brazil. If so, he would be eligible to serve as a member of Congress only if he was naturalized seven or more years ago.

Thus, a majority of the House could vote not to seat Santos pending an investigation of his citizenship status. Moreover, even if Santos satisfies the constitutional requirements for serving in Congress, he could be expelled by a two-thirds vote of the House.

Unfortunately, neither of those options seems feasible. Even the House under Democratic leadership did not vote to expel any of its members—despite the fact that several Republican House members appeared to aid the attempted coup on January 6, 2021. If support for an insurrection aimed at Congress itself couldn’t garner the two-thirds vote needed for expulsion, it’s extremely unlikely that a House with a Republican majority would expel a fellow Republican “merely” for pathological lying.

Disqualifying a putative House member for failure to meet the citizenship requirement requires only a majority vote, but the Republicans’ razor-thin House margin means that they cannot afford to risk losing even one seat. Santos has committed to supporting the Speakership candidacy of Kevin McCarthy, who needs every vote he can get.

Accordingly, Santos can probably expect no worse than a reprimand from his colleagues. If he is to lose his seat, it might not be for another two years, when he will need to face the voters to whom he lied in 2022.

Can Santos Be Prosecuted?

Will Santos last that long? Might he be imprisoned before November 2024?

Potentially. Both state and federal prosecutors are investigating whether Santos committed crimes. The clearest path to an indictment could run through campaign finance law. Santos may have illegally diverted campaign funds to personal use. There are also unanswered questions about the source of the money he loaned to his campaign.

Even so, readers might wonder whether Santos can be prosecuted for the lies he told the voters to get elected. A ticket scalper who knowingly charges you $500 for what he claims are Taylor Swift concert tickets but are actually forgeries commits the crime of fraud. If lying to one person to obtain money is a crime, surely lying to thousands of people to get their votes should be a crime as well, right?

Whatever the applicable law should be, it currently does not appear to criminalize lying for votes. The federal mail fraud and wire fraud statutes attach criminal liability to fraudulent schemes to obtain “money or property,” but votes are neither money nor property. To be sure, another federal statutory provision allows for fraud using “a scheme or artifice to deprive another of the intangible right of honest services.” That language might be thought to cover a scheme of lies to elect a representative who is not who he claims to be, but in a case arising out of the Enron scandal, the Supreme Court construed the “honest services” provision to reach only bribery and kickback schemes. The Court recently heard argument in another case involving the scope of the honest-services provision, but even if the defendant (a former unofficial aide to former New York Governor Andrew Cuomo) loses, the statute would not encompass a fraudulent scheme to obtain votes.

Other federal provisions cover fraudulent schemes for obtaining “anything of value” or “a thing of value”—terms that could in principle be broad enough to encompass a vote for a seat in Congress. However, none of those other federal laws seems applicable. In some states one finds the “thing of value” or “anything of value” formulation, but New York is not one of them. New York’s criminal code contains a great many provisions covering a great variety of fraudulent schemes. However, there is no specific provision governing fraudulently seeking votes, and the general fraud provisions (first and second degree Scheme to Defraud) apply to schemes to deprive victims of “property,” which does not appear to cover votes.

First Amendment Limits

Whether or not Santos escapes punishment for his lies to voters, should Congress and state legislatures amend existing law to prevent future politicians from following in his footsteps? One cannot answer that question strictly as a matter of public policy because the First Amendment right to free speech places limits on government’s power to make lying a crime.

In United States v. Alvarez, the Court invalidated the respondent’s conviction for violating the Stolen Valor Act, a law that forbade falsely claiming to have received the Congressional Medal of Honor. Justice Anthony Kennedy’s opinion announcing the judgment began with a line that could easily be used to describe George Santos: “Lying was his habit.” Nonetheless, and despite recognizing that false claims of military honors seriously insult genuine heroes, the lead opinion stated that lies are not categorically excluded from First Amendment protection. Particular categories of lies—such as defamation and financial fraud—may subject the liar to penalty but lying absent more is free speech.

Some observers read Alvarez to categorically protect lies. That’s a mistake. The case holds only that lies are not categorically proscribable. Where, in between absolutely protected and utterly unprotected, is the line?

An April 2022 symposium sponsored by the Knight First Amendment Institute at Columbia University titled “Lies, Free Speech, and the Law” tackled that question from a variety of perspectives. Two of the papers touched on points closely related to what we might call the “George Santos problem.” Cardozo Law Professor Deborah Pearlstein’s essay made a powerful case for the permissibility of speech regulations that promote the institutions of democracy. To combat voter intimidation, courts have upheld buffer zones that proscribe campaigning immediately around polling places. Some kinds of lies—such as disinformation about where and when to vote—should be proscribable to protect what Professor Pearlstein aptly calls “election integrity.” Meanwhile, footnote 14 of UCLA Law Professor Eugene Volokh’s contribution cited two lower court cases that upheld punishment for candidates who lied about their credentials. However, he also observed that Alvarez, decided after those cases, might affect their continuing vitality.

Although the papers by Professors Pearlstein, Volokh, and other contributors to the symposium are enlightening, I do not read any of them to say that Alvarez or any other Supreme Court case squarely addresses the George Santos problem. Even so, while the question is thus technically open, Alvarez is probably best read to foreclose direct criminalization of candidate lies about credentials.

Politicians routinely lie. Few rival George Santos, much less Donald Trump, who told over thirty thousand lies during his four-year presidency. Nonetheless, lies abound in politics. Many of the lies politicians tell concern topics that are more salient to voters than the sorts of lies Santos told about his biography.

Lies about credentials harm voters, but the harm is mostly abstract. Voters who learn that Santos never worked at Goldman Sachs or Citigroup will think worse of Santos for having claimed he did but probably will not be harmed in their daily lives.

By contrast, lies about a candidate’s intentions can do very concrete damage. Voters who discover that a candidate was lying when he said he would increase social spending and lower taxes without adding to the deficit will feel the pinch in their pocketbooks. Voters who are fooled by a candidate’s false claim that he has a secret plan to end a deadly war or an unspecified health insurance program to replace the existing one could pay the price with their lives. It would make little sense to forbid the less serious lies about credentials but not the generally more serious lies about policy intentions. And yet lies about policy intentions surely cannot be criminalized consistent with the First Amendment. To do so would be to require what Justice Kennedy’s opinion in Alvarez called an Orwellian “Ministry of Truth.”

* * *

If the First Amendment means that Santos and future fabulist candidates cannot be held criminally liable for their lies, it does not follow that we are powerless against them. Evidence of campaign finance or other crimes by Santos might emerge. And in most cases, we can count on journalists and especially opposing campaigns (which build files of opposition research) to discover skeletons in a candidate’s closet long before election day.

In some sense, Santos is a one-off—a politician whose lies were not easy for voters to detect in advance of the election. The bigger problem facing our democracy comes from the obvious lies that so many Americans eagerly believe despite a mountain of evidence they choose to ignore. Although election deniers generally lost in the 2022 midterms, the fact that so many of them secured GOP nominations reveals the extent to which Republicans believe the Big Lie. And that’s to say nothing of the facially ludicrous QAnon conspiracy theories to which millions of Americans—including some members of Congress—subscribe.

The real problem with George Santos going to a House of Representatives newly in the control of Republicans is not that he will stand out due to his disregard for facts and truth; it’s that he will fit right in.

Comments are closed.