By: Yang Cao

The United States, as the world leader (for democratic countries at least), may excel in many fields, but in terms of voter turnout it trails far behind other industrialized countries. The voter turnout measured in terms of voting age population was only 55.7% in 2016, while the highest countries report that more than 80% of the voting age population actually votes. Studies show that demographics like education, income and age can help predict voter turnout; but, these factors cannot be the cause of such huge discrepancies in voter turnout between U.S. and countries that have highest voter turnout, as the U.S. should have similar demographics to those countries. On the other hand, some studies have concluded that, while the U.S. and countries like Sweden might have similar demographic, the U.S. has far more negative campaigns than Sweden and other European countries, and that rising negative campaign in the past decades is solely an American phenomenon. Given these facts, it is only natural to ask why politicians have to use negative campaigns instead of positive campaigns, which does not hammer voter turnout. Researchers have also proven that negative campaigns are more effective than positive ones, which means kind persuasion will not stop politicians from doing so. Meanwhile, outlawing negative campaigns is also unrealistic because of it would be content based and subject to strict scrutiny.

Though banning negative campaign altogether appears unfeasible, a harmful and significant component of it may be a good target. Very often, negative campaigns contain lies about the campaign opponents. Lies harm the democratic process because democracy works best when voters are informed of the truth; uninformed voters lead to bad leaders, which thwart the purpose of elections. Naturally, one would think to outlaw slanderous statement in political campaign. A famous case, New York Times Co. v. Sullivan, outlined the Supreme Court’s stance on this matter. The burden is on the plaintiff to prove that the statement was made with actual malice. Actual malice is defined as the knowledge that the defamatory statement was false or made with reckless disregard of whether it was false or not. This standard has a very high burden of proof since it is often difficult for a plaintiff to prove that the defendant made false statements with actual malice because the defendant is an adversary to the plaintiff before the lawsuit and plaintiff could have known the internal process that the defendant employed in delivering the statement. Moreover, even if a plaintiff finds evidence eventually, it is very likely to be too late for the election since it is time sensitive. If there are multiple parties stating defamatory statements against the plaintiff, it would be even more difficult for the plaintiff to protect itself through litigation. Suffice to say, the Supreme Court’s resolution does not help with the problem with campaign lies.

As a result, some States decided to enact their own laws. Washington, for example, enacted laws against false political advertising which could very well deter lies in political campaigns. Unfortunately, it was subsequently declared unconstitutional. In State ex rel. Public Disclosure Comm’n v. 119 Vote No! Comm, the Supreme Court of Washington decided the case mostly based on three seemingly reasonable beliefs. First, the court stated that the statute infringes on protective speech even though the statute only seeks to get rid of slanderous speech. The court states that “even false statement can make valuable contributions to debate by bringing about ‘the clearer perception and livelier impression of truth, produced by its collision with error.’” The court further explained that the false statements would be noticed and corrected by campaign’s opponent, so they are less of a problem and have constitutional value. To hold the statute to not be narrowly tailored, the court reasoned that the statute “assumes the people of this state are too ignorant, or disinterested to investigate, learn and for themselves the truth or falsity in political debate.”

Unfortunately, these beliefs are grossly detached from the reality we occupy. Although not all people are ignorant, a significant portion of the population may be. For example, I, as a foreigner and with my limited stay in U.S., have more than once met people who seriously believe that Obama was not born in U.S. Ignorance is largely due to disinterest in politics and the statistic proves that. If almost half of the people do not care to vote at all, what percentage of people who actually voted would be willing to do serious research on candidates. Macroeconomic indicate that many would not research much because voting works like a second-class public good. It is second-class because, even if in a closely contested election (contrary to non-competitive ones) where each vote matters, one’s candidate may not be elected. Moreover, even if the candidate did get elected, he might not eventually deliver his promises. Therefore, whatever benefits a voter may derive from voting needs to multiply with a coefficient smaller than one. The voting is analogous to a public good because any individuals’ power is extremely small to elect someone (before them knowing the result) that the opportunity cost of being informed and vote (investigation, work time sacrificed, etc.) outweighs the benefit. Consequently, being a second-class public good means that many people will not be informed voters which means Washington State’s assumption in its statue is not far from accuracy. This means the statute can be narrowly tailored.

To the court’s second statement, false statements will be noticed by the opponent parties, but it might not be corrected. For example, if the false statement seems rational on its face, and both parties advertise on the validity/invalidity of the statement, which party should a low-effort voter believe? Would a reasonable voter even be able to know the truth, or does he have to guess? Eventually, it becomes a war of advertisements which the side with more money is more likely to win. This is especially relevant considering that United States spending on political advertisements hit a record high in the 2018 for midterm election, totaling more than four billion dollars. In just four years, the spending on political digital advertising, local cable TV and local broadcast TV have increased 260%, 75%, and 29% respectively. With such huge volume and growth on political adverting, the room for false messages is huge. However, the current system not only muddles the truth, it also strongly disfavors independent candidates who do not have cash to burn. To summarize, this system does not favor truth but greenback; and the malicious false statements are harmful to fair and effective elections.

Finally, the State is right that “there is no constitutional value in false statements of fact” and “neither intentional lie nor careless error materially advances society’s interest in ‘uninhibited, robust, and wide-open debate on public issues” because voters will not have a stronger impression of truth if they do not know the truth at all. The court’s belief on the false statement’s constitutional value predicate on the premise that the debate will lead to truth but, as advanced in previous arguments, many voters might not clearly know the truth. These significant risks involved outweighs any fantasy the justice might have about political debate. Moreover, debate costs money. If debate on false statement are eliminated, this country can save some money on political campaign which can be better used elsewhere.

In conclusion, even if Washington’s statue is content-based and subject to strict scrutiny, it could very well be constitutional though one could argue it is not necessary to serve the compelling interest by being too broad because it includes indirect false claims that implies endorsement.

An alternative to Washington State’s statute could be a law that mandates negative campaigns to indicate the source of their key facts. Just like political advertisements indicating the source of advertisement, indicating the source of key facts will be content-neutral, putting it under intermediate scrutiny. Indicating the source of key fact will serve the interest of eliminating false statements in an election; it would not prevent anyone from stating anything but only require knowing their sources of facts; it would be narrowly tailored since it only targets false statements in negative campaigns. If the state passes this law, voters would know the credibility of the information better and whoever make negative statements against their opponents would be more accountable to their words.

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