Election Law @ Moritz


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Edward B. Foley
Free & Fair is a collection of writings by Edward B. Foley, one of the nation's preeminent experts on election law.

Weekly Comment

Lying to Win

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September 21, 2004

Deception is rampant in this year's presidential election. The candidates' own stump speeches deliberately misled voter's about each other's record and policies. Independent groups broadcast ads that are intentionally inaccurate. The slur of Kerry's service in Vietnam by the Swift Boat group was particularly ugly in its deceitfulness, topped only by the forgery of National Guard's documents about Bush.

The lesson of all this deception might be that truth in the end will prevail. The forged documents given to CBS were quickly shown to be fake, with the network's reputation crippled. It took a little longer to discredit the Swift Boat slur, but investigative reporting by the Washington Post and others uncovered additional witnesses and Pentagon records all supporting Kerry. And thanks to www.factcheck.org, anyone who wants the straight story can sign up for e-mail alerts about misleading campaign messages.

Regrettably, however, we are not so sanguine about the ability of truth to prevail in the marketplace of ideas. The furor over the forgeries, although entirely appropriate, has distracted attention from what is actually known, and not known, about Bush's service in the National Guard. And while informed members of the public know the Swift Boat slur to have been discredited, many members of the public are not so well informed, and this deceitful attack has successfully undercut Kerry's reputation as a decorated veteran. Even more to the point, how many voters have the time or inclination to read e-mail alerts from FactCheck, even assuming that they know about this beneficial public service?

No, candidates and independent groups engage in deliberately misleading campaign messages because they know that these messages work in casting the opposing candidate in a bad light and that, by and large, they can get away with it. Unless a campaign falsehood self-destructs from its own obvious inaccuracy, as the forged CBS documents did with their word-processed superscripts, the dishonest campaign message has sticking power. The truthful counterpunch is almost never as effective as the initial deceitful attack.

Just think about it: the truth is often complicated and nuanced. Describing it precisely is very difficult in the arena of sound-bite journalism. So, when one candidate deliberately smears another about jobs or taxes, misstating the opponent's record or position to make it sound worse or more unreasonable than it really is, it's harder for a quick retort to distinguish the truth from the misleading smear.

Moreover, because truthful counterpunching often does not work as well as deceitful attacks, the inevitable temptation is to fight fire with fire. While forging National Guard documents takes this impulse to an extreme, there are other ways to overstate what is genuinely known about the gaps in Bush's National Guard service in order to paint the President in an unfavorable light. For example, asserting that Bush was "AWOL in Alabama," as one group does, is an obvious attempt to retaliate against the Swift Boat slur with a claim about Bush that goes beyond what the available evidence will bear.

To be sure, politics ain't beanbags, and it's okay to hit hard with negative ads about an opponent's record and position. But there is a big difference, or at least there ought to be, with an accurate attack against one's opponent and a dishonest one. The realities of audience psychology give politicians and their supporters too great an incentive to blur this distinction, stretching the truth beyond the breaking point, and the current state of the law gives them no reason to resist this temptation.

In future Comments, we shall suggest some reforms to adjust these incentives. We will not pretend to have solutions that will eliminate misleading messages from campaign discourse. But we do think that, consistent with the First Amendment, it is feasible for the law to create a regulatory environment in which candidates and independent groups are somewhat more likely to refrain from deliberately distorting the truth. Even a modest improvement would be a welcome development for the marketplace of ideas, which currently is not living up to its truth-finding ideal.