Much as we might complain about politicians lying, it’s not the job of the government to fix the problem. That’s the implication of last week’s decision by a federal appellate court in a case involving a state law purporting to punish false attacks on candidates for public office. If the court is right - and I think it is - then only voters can exact a penalty for lying.
The dispute arose after a local prosecutor announced that a grand jury would be looking into an advertisement from North Carolina’s 2020 race for attorney general. The ad in question, run by the incumbent, was alleged to violate a 90-year-old state law criminalizing “derogatory reports” about political candidates. The plaintiffs sought an injunction against the prosecutor’s plan. Last week the U.S. Court of Appeals for the 4th Circuit ruled that the injunction should have been granted, because the law was almost certainly unconstitutional.
The court’s thoughtful and comprehensive opinion is worth reading in full, for reasons I won’t go into here. Suffice to say that in recent decades, the usual fate of statutes purporting to punish lies about political candidates is that they violate the First Amendment.
Political lies are a constant irritant in a democracy, but the courts are correct: The government shouldn’t be involved in regulating the rough-and-tumble of political speech - whether false, true or in between. Public officials who would suppress speech in the name of democracy, even when acting with the best of intentions, are in this sense the mirror image of those who would suppress votes.
Which is not to say that it’s OK for candidates to lie. Lies are corrosive of democracy. Yet the incentives all run the wrong way. Some scholars argue that candidates are driven by the expectation that their opponents will lie. Another possibility is that given a relatively uninformed electorate, for the rational candidate lying is equilibrium behavior. But the truly depressing news is this: It’s also possible that liars make better candidates.
A sobering 2020 study described an experiment in which several hundred mayors in Spain played a game in which lying would grant them an advantage. As one would expect, some mayors lied and others (the “lie averse”) told the truth. Afterward, the researchers tracked the mayors’ reelection campaigns, comparing the performance of those who lied in the game to who didn’t. The study confirmed what most voters know and fear: Those who lied in the game enjoyed better election outcomes than the lie-averse.
The 4th Circuit was right to note that the U.S. Constitution leaves to the electoral process the task of reining in these tendencies. But this in turn creates two problems: First, we the people aren’t good at spotting lies, in politics or elsewhere. Second, even if we were better at sorting the honest candidates from the liars, it’s not clear we really want to.
Although most us probably think we’re pretty good at spotting lies, most of us would be wrong. A 2006 meta-analysis of existing research found that when asked whether another person is lying, test subjects score just slightly better than random chance. (Ironically, scores improved when the speaker’s face could not be seen.) These results hold true across a broad range of activities. Here’s a particularly poignant example: Most parents do a poor job of judging whether their children are lying.
If parents can’t tell whether their kids are telling them fibs, it’s hard to imagine that many voters can successfully weigh the veracity of political candidates. Here studies differ. One notable finding: Although voters who pay close attention do slightly better than random chance in determining whether a candidate for office is lying, research suggests the existence of a “truth bias” — meaning that observers are more likely to classify a politician’s lie as truthful than the politician’s truth as a lie. (The same research tells us that observers are more likely to catch lies by male than female candidates’ lies.)
All of which leads me to wonder: If it were possible to catch the liars, would we really want to? I’m skeptical. We live in a time when politics has grown so nationalized that even in local elections, voters often think more about Washington than about their communities. It’s hard to find room in that heady and polarized mix for much concern about character. Small wonder that Americans think tolerance for lying in politics has gone up.
I’ve long argued that, when faced with candidates who lie and dissemble but are nevertheless with us on the issues, we should vote against them. Not stay home. Vote the other way. If we want a politics of integrity, even the most committed partisans should want the liars on their own side to be defeated. Losing elections is the only punishment politicians understand.
But we don’t do that. I’m often told that it’s not reasonable even to ask, because the issues are too important. Maybe so. But if what really matters is not a candidate’s character but a candidate’s reliable vote for “our” side, the incentive for politicians to tell the truth is arbitrarily close to zero.
Stephen L. Carter is a Bloomberg Opinion columnist and professor of law at Yale University. This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
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