Peter Callaghan covers the state Legislature for The News Tribune in Tacoma. Blog: thenewstribune.com/politics. Twitter: @CallaghanPeter. Reach him at firstname.lastname@example.org.
"Your eye doctor could kill you."
That was just one of the claims made by opponents of 1991's physician-assisted suicide initiative that were found to be both false and a violation of state law. But in 1998, seven years after the initiative had been defeated by voters, the Washington Supreme Court said it wasn't the business of government to regulate lies told in the midst of elections. "The state's claimed compelling interest to shield the public from falsehoods during a political campaign is patronizing and paternalistic," wrote then- (and perhaps future) Justice Richard Sanders.
A few of the justices left the door open to a less-sweeping regulation of campaign lies. But each time the Legislature tried to write narrower laws, the court found them lacking as well. "The notion that the government, rather than the people, may be the final arbiter of truth in political debate is fundamentally at odds with the First Amendment," wrote Justice James Johnson in 2007.
The latest attempt at regulating campaign lies has never been used against an alleged liar, so it has never been tested by the courts. Under that law, the state could punish those who knowingly lie about candidates in such a way that those candidates are slandered. To meet the test, the lie would have to "expose a living person to hatred, contempt, ridicule, or obloquy, or deprive him or her of the benefit of public confidence or social intercourse, or injure him or her in his or her business or occupation."
That's a pretty steep burden, and the courts have made it pretty difficult to prove slander against candidates who willingly enter the arena. And little in the law keeps a candidate from telling lies about himself or herself. Brag, spin, exaggerate, obfuscate all you want. Claim endorsements you don't have. Take credit you don't deserve. The only court that cares is the court of public opinion.
That's probably as it should be, because even if there was a constitutional way for an agency such as the Public Disclosure Commission to patrol campaign advertising, any action would come long after the election. And there are obvious concerns with the government deciding what is true and what is a lie when the same government — and the incumbent office holders of that government — is often the target of campaign rhetoric.
Leaving it to voters to act, or react, to the worst of the worst, however, requires they know about it. Johnson, who argued that the best regulator of lies is truth, suggested that the lied-about candidate can point out the offense to voters. And the rise in fact-finding organizations and truth squads in the news media are reactions to this burden on voters.
Voters found out
Those are the methods that identify candidates' marginal claims. That's how voters found out when Troy Kelley used a 2-year-old endorsement in his campaign for state auditor. Outgoing state Auditor Brian Sonntag and The News Tribune had endorsed him for state representative in 2010 but not for the current campaign, a distinction hard to detect in Kelley's ads.
It's how voters found out that both state attorney general candidate Reagan Dunn and state House candidate David Sawyer claimed to act as attorneys before either was admitted to the bar — Dunn while a law student and Sawyer while reading law under other attorneys.
It's how they found out that state Senate candidate Jack Connelly implied the endorsement of former Sen. Rosa Franklin by running a picture of the two of them in campaign material. Connelly took the photo down, but implied endorsements remain one of the most-used untruths in campaigns. It's how we find out that his rival for the position, Jeannie Darneille, appeared to take credit for the $30 million major renovation of Tacoma's Cheney Stadium when she had really won much-smaller amounts from the state for repairs of the old stadium.
The state won't move in when dubious claims are made, but voters might.