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On This Week With Christiane Amanpour today (http://abcnews.go.com/ThisWeek/week-transcript-madeleine-albright-sen-lindsey-graham-sen/story?id=12143913&page=4), at the end of the program Christiana reported on a British Member of Parliament who was removed from office by court order because he (or his campaign staff) had lied about his opponent during the campaign, the first time an election has been nullified in the UK in 99 years (see also:  http://www.telegraph.co.uk/news/newstopics/mps-expenses/8131286/It-is-right-to-protect-democracy-from-Phil-Woolass-lies.html).

The law under which Phil  Woolas had been removed from office after winning the election (by a mere 103 votes) was the Representation of the People Act, under which Woolas’ opponent sued. The argument in Great Britain, naturally enough, is between the importance of avoiding any chilling of political free speech (and transfer of power from the people to the courts), versus the importance of creating and maintaining a reliable, productive, informative debate between candidates competing for elected office. It is not a trivial debate, and it should not be decided with a knee-jerk commitment to any a priori assumption. Both sides represent legitimate and significant values to be considered.

One of the simultaneous strengths and weaknesses of the American legal and political system is the quasi-sacred status accorded to our foundational document, the United States Constitution. It is a strength because it creates a bulwark in defense of rule of law, making any capricious acts of power outside the bounds of our legal structure just that much more difficult to realize. It is a weakness because it binds us to a very insightful but inevitably imprecise, imperfect, and increasingly archaic 223 year old legal document. While there are legal means for amending it, the reality is that it is exceedingly difficult to amend, and that the heightened quasi-sacred status of the Bill of Rights renders those ten amendments completely untouchable as a practical reality.

Most Americans would argue, instantly and passionately, that that is unequivocally a very good thing. While there are very good and persuasive arguments to support that conclusion, it is undeniably also affected by lifetimes of nationalistic indoctrination, starting practically in infancy, with the public school diet of the Pledge of Allegiance, military and patriot ballads, and American History still generally taught with all of the stirring patriotic mythology and imagery ladled thickly throughout. How many Americans, for instance, know that the Boston Tea Party was a response to a lowering of taxes on British tea, offending only the tea smugglers’ interests? How many know that among the grievances that the colonists cited against the British was the British commitment to protecting the civil rights of the Indians living in the newly conquered Ohio Valley, and of the French colonists in newly conquered Canada? Reality is more nuanced than the mythologies with which we displace it.

So let’s bracket off our patriotic certainties, and instead examine the topic with dispassionate reason. Is the long-term public interest better served by defending an absolute hands-off policy regarding political campaign messaging, leaving it up to voters to punish discovered dishonesty as they see fit, or is it better served by prohibiting outright deception, enforced with penalties serious enough to give the prohibition teeth? If the latter, should such prohibitions include overturning the choice of the electorate? Should the electorate be included in such a decision?

First of all, we should recognize that limits on free speech already exist. In any context other than a political campaign, a person whose reputation is publicly impugned by an intentional falsehood can sue under libel and slander laws. The question isn’t whether extending that legal protection into the political sphere violates an inviolable absolute right to free speech, but rather whether it violates some core principle of that right that does not exist outside of the political sphere. It is certainly true that in Free Speech jurisprudence, political speech is recognized as being the most protected kind of speech, since the first amendment was particularly intended to protect political speech.

Second of all, we need to examine honestly the assumption that voters are capable of punishing lies at the polls. We all know that American political campaigns have devolved into largely negative campaigns which stretch the truth as much as they can get away with to paint the opponent in the worst possible light. The voters can only punish this behavior by voting for no one, which undermines rather than preserves the health of the democratic system.

Furthermore, the assumption that the electorate will reward and punish candidates for good and bad behavior defies both overwhelming empirical evidence and economic theory, since rewarding and punishing such behaviors depends on being fully informed, which is rarely if ever the case. To take a market example of the dilemma, few people are such “free market” purists that they argue in favor of rescinding health and safety laws protecting consumers from toxic and dangerous ingredients in goods offered for purchase. Few say, “after a few thousand kids die from dangerous parts in toys, people will stop buying them.” In fact, such an approach ensures that small, quick-hit start-ups will in never-ending succession sell dangerous or unhealthy items that yield higher profits than attention to health and safety would, and simply switch to a new one once the consumer learning curve catches up.

Similarly, not all, or even most, of the electorate ends up informed prior to the election of deceptions incorporated into political campaign ads, becoming informed requiring both that the deception is discovered and reported upon by the press, and that the electorate affirmatively seeks information about candidates beyond the information that is targeted at them in the course of their daily lives. Also, and more problematically, even informed voters are susceptible to sophisticated psychological manipulation, meaning that well-designed deceptions can affect elections even if everyone is informed of the deception, leaving inchoate impressions that affect voting behavior independently of the quality of information.

The latter question bleeds into the very sensitive question of “how much democracy is too much democracy?” Do we want a pure democracy, in which the entire polity votes on every single public policy decision; or some kind of a representative democracy, in which we select people to govern presumably with some degree of professional expertise and information-intensive analysis? If the latter (which is what we have), do we want to preserve some kind of unfettered free-for-all process of selecting those representatives, in which any exploitation of the psychological manipulability of the electorate is fair game, or do we want to refine the process to be one in which popular decisions are made on the basis of reliable information?

While I respect the sophistication of our existing social institutions, and believe that preserving the core of our system is certainly a good idea, I am of the opinion that there is almost always room for improvement on the margins. I have always said that there are two demands that must be met in any representative system of government: 1) That the agents (our representatives) be held accountable for acting in the interests of the principal (the people), and 2) that they be enabled to do so effectively. This principle can be extended somewhat to two broader requirements of our political system: 1) That the electorate be allowed to choose its representatives according to their perceived interests, and 2) that they be enabled to do so effectively.

Whether the British law is preferable to our anything-goes system, and whether a (another?) marginal shift in power from the electorate to the courts would (continue to?) tilt the scales in an unhealthy way, is something about which I am not going to state any conclusions. But I do advocate that we engage in the debate, in the ongoing consideration of how to refine our system, and in the cautious effort to do so. Despite our patriotic mythology, there is always room for improvement. There was in 1776. There was in 1787. There was in the 1860s and 1960s. And there is today. Let’s not let national pride blind us to the need to progress. Let’s not cite those who were most famous for arguing on behalf of the need to refine social institutions as authorities whose refinements prohibit us from every refining them again.

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  • The more pressing preliminary challenge that we face at this point is identifying the sources of political speech. The Denver Post published an article today about the money from outside groups with generic names and anonymous donors becoming the primary source of political speech both during and between campaigns (http://www.denverpost.com/ci_16608163), a phenomenon Adam Schrager and Rob Witwer had already chronicled in their book “The Blueprint.” The consequence of this diversion of money financing political speech to circumvent campaign finance laws is that holding anyone responsible for the content of the speech, whether legally or at the polls, is next to impossible. The first order of business is to cure that defect, and ensure that any heavily financed political speech is not done anonymously, so that we know who to hold responsible for its contents. I also recommend that we pass laws requiring corporations to get shareholder approval before using their property (the corporation) as a vehicle for speech that they may or may not condone. We need to ensure that all who speak are responsible for their speech, and that all who use others’ resources to speak receive those others’ permission to do so.

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