Political Hay

A Wolf That Comes as a Wolf

Beware the Democrats' Deceptive Practices and Voter Intimidation Prevention Act of 2011 (S. 1994).

By 10.8.12

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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.

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About the Author
Jack Park is an attorney with the Atlanta law firm Strickland Brockington Lewis LLP.