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If you read closely, you can almost glean a laugh track from the transcripts (pdf) of the oral arguments presented to the Supreme Court on Tuesday in the political lying case, Susan B. Anthony List v. Driehaus. The justices sprayed gentle ridicule and subtle sarcasm on Ohio State Solicitor Eric E. Murphy as he attempted to defend a state law that bans false statements during a political campaign.
Uniform enforcement of the Ohio law — and the dozen and a half other similar state laws — would reduce our political campaigns to what? Three or four months of observed silence before each Election Day?
Aside from money, nothing is more integral to a political campaign than lies. Campaigns lie about the other campaigns; they lie about their own positions, too. They lie about the consequences of the legislation and policies they propose. They lie in their speeches, they lie in their campaign literature, and they lie on TV, radio, on billboards, and over the Internet. Lies, integral as they are to campaigns, can’t be exterminated unless you snuff the campaigns themselves.
I rise to the defense of political lying not because I’m a liar. Well, I am a liar — but I’m so terrible at it that I limit my mendacity to stretching the truth only, making me a non-lying liar. My complete defense of political lying would, of course, fold in the criticisms expressed in Tuesday’s oral arguments, namely that such statutes suppress free speech and political speech during a political campaign. And who wants to trust a bunch of state bureaucrats to determine, during the heat of a campaign, which side is telling the truth?
My position is more basic and more principled than the one the justices seem to be carving out. In the American tradition, some campaigns seem almost completely composed of exaggerations, fabrications, and unbelievable promises and pledges.
Take for example, President Barack Obama’s statement, a cornerstone of his permanent political campaign, “If you like your plan, you can keep your plan.” He or a top official have expressed this thought at least 37 times, and you don’t need a state of Ohio ruling to tell you it is not and was never true. It was a lie so monstrous, so expansive, and so consistently applied that I have nothing but admiration for the way Obama and his team sustained the lie before the professional fact-checkers dragged them to the turf and ate them alive.
Politicians lie for so many reasons that it’s hard to pin a single motivation on them. More difficult to mine than bitcoin, the truth remains a commodity too dear for politicians to spend on campaigns. Only in Aaron Sorkin’s cinematic fantasies does a candidate win by brushing every issue with the broad stroke of truth.
The truth is too often unpalatable to the electorate and too complex to express. Political campaigns are about telling the voters what they want to hear, not giving legal depositions, and about inducing voters into pulling the lever in a candidate’s direction. Show me a voter who believes political campaigns are about the truth and I’ll show you a 14-year-old who should be prosecuted for electoral fraud.
“Truthfulness has never been counted among the political virtues, and lies have always been regarded as justifiable tools in political dealings,” as Hannah Arendt put it four decades ago. Sometimes politicians lie because they think it expresses a higher truth (see the Obama example) or they come to believe their own lies, which would seem to apply to President Richard M. Nixon’s entire career. I know this sounds terrible, but as Arendt also pointed out, we should tolerate political lies because they serve as “substitutes for more violent means,” making them “relatively harmless tools in the arsenal of political action.”
If enforced routinely, state laws banning campaign lies would relocate the political process from the noisy and quarrelsome public sphere to court-sized rooms where “non-partisan” commissions and tribunals would attempt to sort out fair from unfair, legal from illegal, in everything from bumper stickers to buttons. As the justices noted in oral arguments, this has the potential to replace political campaigns with endless litigation, and move power from the electorate to the bureaucracy. As I said before, who exactly trusts bureaucrats — who got to where they are by being political — to referee these political fights?
After enduring two-plus centuries of political campaigns, American voters have largely normalized the lies issued by candidates and campaigns. Backstopping the public’s well-earned cynicism are those cynics in the press, who eagerly debunk the whoppers, large and small, produced by candidates and distributed on the hustings. I declare this the best of all possible worlds.
Only a military coup will prevent the Supreme Court from obliterating the Ohio law when it issues its decision before summer recess. But if the law endures, I’m sure campaigns will roll out their back-up plans to undermine it. They’ll tell more crafty lies. They’ll say things without actually saying them — “praeteritio,” as it is known among rhetoricians — and otherwise flex their imaginations to devise less easily-policed deceits.
The campaign hygiene authorities will regret the arms-spiral they encouraged and pine for the old days, when campaign dishonesty could be flushed from the bush and disarmed without using a big gun and expensive dog.
Campaign lies I can live with. Campaign cops make me shudder.
(Jack Shafer is a Reuters columnist covering the press and politics.)
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