If you like the tendentious nit-picking of Politifact, you’ll
love S. 1994 because it will empower a whole new set of
self-appointed fact checkers. But, if you are concerned about
politically motivated mischief, you’ll see it as a wolf in wolf’s
clothing, like Senator Grassley (R-IA) does.
The First Amendment protects some false speech, as the Supreme
Court recently held in finding the Stolen Valor Act
unconstitutional.
It doesn’t protect all false speech, though, and Senate
Democrats want to subject more false speech to criminal
prosecution. S. 1994, “Prevention of Deceptive Practices and Voter
Intimidation in Federal Elections,” would make it a federal crime
to make knowingly false statements about the time or place of an
election, the qualifications of voters, or claims of endorsement
within 90 days of a federal election. In order to be a crime, the
speaker would have to knowingly make a materially false statement
with the intent to mislead voters. S. 1994 would also create a
private right of action that would empower private parties to
police political speech.
The Democrats are publicly upset by stories about statements to
the effect that Republicans vote Tuesday and Democrats Wednesday or
that certain recipients of the message were ineligible to vote or
would face consequences of they voted. The statements are
attributed to conservative talk show hosts, robocalls, or hacked
e-mails.
False speech like that is plainly not good. S.1994 is not the
way to deter it, though, as I said in a June hearing before the
Senate Judiciary Committee and in responding to written questions
for the record.
One reason why S. 1994 is not the right idea is that deceptive
practices and voter intimidation are already subject to criminal or
civil sanctions. The other remedies that are available have been
“underutilized,” though, as one supporter of the bill acknowledges.
And, when utilized, those tools have worked; in one deceptive
practices case, there was a successful federal prosecution, and, in
another, a successful state prosecution. Before adding another new
criminal law, Congress should consider why federal prosecutors
aren’t using the tools they have.
S. 1994 is also likely to chill legitimate political speech. It
would make it risky to talk about the qualifications of voters (and
some people cannot vote) or to make claims about endorsements (and
candidates get endorsed). It would make expressions of opinion and
assertions regarding unsettled questions risky too. All such
statements would be riskier to make because the bill would expose
them to fact-checking by political opponents armed with a private
right of action.
When I was in the Alabama Attorney General’s Office, the state’s
Judicial Inquiry Commission had jurisdiction to charge incumbent
candidates for judicial offices who made statements about another
candidate “either knowing that information to be false or with
reckless disregard of whether that information was false” and
statements “knowing that the information [disseminated] would be
deceiving or misleading to a reasonable person” with violating the
Canons of Judicial Ethics. Once charged, an incumbent judge would
be disqualified from serving on the court until the charges were
resolved.
The prospect of disqualifying an opposing candidate encouraged
interested persons to fly-speck every speech and advertisement of
that candidate looking for opportunities to complain that something
stated was false or misleading. Even if the statement turned out to
be true, the complaints could require a campaign to expend energy
responding to an official inquiry instead of campaigning for votes.
If Congress creates a private right of action, we should not be
surprised to see the same behavior from the newly empowered
litigants.
Not just robocallers are in the Democrats’ sights. One speaker
at the hearing, responding to a softball question from Senator
Chris Coons (D-Del.), spoke of a “wave of voter suppression
tactics” and pointed to the efforts of True the Vote. One wonders
if the speaker objects to True The Vote’s effort to expose voters
who were registered to vote in more than one state. Probably not,
she probably wants a tool to discourage True The Vote from
challenging any voter’s qualifications.
If the potential for mischief isn’t clear, just recall the Obama
campaign event on August 22, well within the 90-day blackout
period, at which Michelle Obama pushed the registration of new
voters, saying, “[T]hat one neighbor that you get to the polls on
November 2 … could be the one that makes the
difference.” Unless that neighbor is an early voter, Michelle Obama
communicated false information about the time of an election,
something that S. 1994 prohibits. She probably did so
unintentionally and without desiring to deceive voters, but someone
with a private right of action could still drag her into court and
seek a correction or other relief.
And, what about the Federal Voting Assistance Program, which,
for a short time, published the wrong deadline for returning
military absentee ballots in Wisconsin on its website? A ballot
returned by November 16, as the website said until it was
corrected, would be too late; the actual deadline is 4:00 pm on
November 9. Those who looked at the website at the wrong time and
not again might have their ballot rejected if they rely on the
erroneous advice.
Federal prosecutors should use the tools they have to punish
deceptive practices. We don’t need S. 1994 for that purpose. And,
we don’t need to give new weapons to the politically motivated.
