The Paradox at the Heart of Modern Politics

(originally posted at Unclaimed Territory)

As a political junkie and a litigator who works primarily with large corporate clients, I’ve come to appreciate that there is a fundamental disconnect between the assumptions that underlie the prevailing approach to and coverage of political issues in this country and the assumptions that drive our policies in virtually every other context.

For example, within the context of commerce and the marketplace, we long ago realized that the average consumer is generally not in a position to tell whether or not she is being lied to or misled, whether by way of an advertisement or an overzealous sales pitch. That’s why, over the years, we have put in place a complex array of overlapping laws and regulations designed to protect consumers from being misled. If a company makes a claim which is even slightly misleading, it will quickly find itself up to its eyeballs in litigation, whether in the form of government enforcement actions, lawsuits by competitors, or consumer class actions (often all three). There are also any number of tort and quasi-contractual claims that aggrieved consumers can bring against the individuals and companies who deceived them.

As a result, companies take great care to ensure that their statements are truthful, and consumers can be reasonably confident that advertisers are not lying to them.

The same is not at all true in the realm of politics, where candidates and interest groups can pretty much say whatever they want and voters are generally left to fend for themselves. Lies and misleading claims are commonplace, if not the norm. The perverse result is that most Americans are far better informed (or at least far less misinformed) when they step into the mall than when they step into the voting booth.

To put it another way, our system attributes to people in their capacity as voters the very truth-detection skills that it assumes they do not have in their capacity as consumers.

What accounts for this disparity? Why is it that the basic assumptions about human nature that animate our approach to so many areas of the law are suddenly thrown out the window when it comes to politics?

As an initial matter, I should point out that it’s not as if no one has ever thought of trying to import our consumer protection policies into the realm of politics. Various states have experimented with such laws. But these attempts invariably run into two major problems.

First, the realities of the political calendar make the consumer protection approach difficult to implement. By the time an aggrieved party can successfully litigate a false-advertising claim, the election is usually over and the issue is either moot or very difficult to remedy.

Far more important, though, is the second obstacle: the Constitution. The First Amendment provides much more robust protections to political speech than it does to commercial speech (and for good reasons). As a result, consumer protection laws can go much farther in regulating what people can and cannot say. For instance, in the commercial context, false advertising laws can and do prohibit claims that are truthful-but-misleading; they also create liability regardless of whether the maker of the statement knew it to be false.

In the political context, however, a law that does anything more than prohibit the making of knowingly false claims--a very difficult burden to meet--is unlikely to pass constitutional muster. There’s plenty of room to be deceptive without resorting to demonstrable falsehoods, and even when caught red-handed in a lie, candidates and interest groups are likely to plead ignorance or mistake.

These difficulties have led most states to abandon legislative efforts to protect voters from false and misleading political claims. As a result, we end up with a system in which you have to be scrupulously honest when selling a toaster, but you can pretty much say anything you want when you’re selling the next president of the United States.

As a believer in the First Amendment, I understand why this is the case and why the same approach we use to protect consumers from deceptive and misleading claims would be highly problematic if applied to political speech. What I don’t understand is why everyone seems to throw their understanding of human nature out the window when the conversation shifts from commerce to politics.

For reasons that I don’t understand, our mainstream journalists and media figures always seem to operate under the assumption that the average person is capable of sorting through all the political information they’re bombarded with and reaching an informed decision. This despite the fact that half of our laws are premised on the exact opposite assumption, i.e., that people are easily misinformed by those with an incentive to do so.

I remember, for example, that in the lead up to the invasion of Iraq, the media made a habit of noting that most Americans supported the invasion. Rarely, however, did anyone mention the fact that nearly 70% of Americans believed that Saddam Hussein was responsible for 9/11 or the fact that the Bush administration had been going out of its way to foster that misperception.

As I’ve observed before, when it comes to covering politics, journalists today are much more like play-by-play announcers than referees. They no longer see it as their job to step in and call fouls, i.e., to call a lie a lie. This is a pity because--for the reasons explained above--it is in the arena of politics where we are most in need of referees; it is in the arena of politics where the normal referees (government officials, judges, private litigants) cannot operate effectively.

I'll have much more to say about this topic in the near future, including (hopefully) some suggestions of ways to incentivize honesty in political advertising without running afoul of the First Amendment. For now, though, I thought I'd start by simply highlighting this paradox. We live in a country of incredibly well-informed consumers and incredibly misinformed voters. We desperately need to find a way to improve the level of political discourse in this country.