Suppose you are a politician running for office and you want to call your opponent’s votes against education or guns. If you’re in Montana, a bipartisan group of lawmakers has a new demand: prove it.
Big Sky Country lawmakers want candidates or political groups attacking a voting record to substantiate the charge in detail. Under legislation that has been tabled several times in recent years, announcements should include the title and number of a bill or resolution referred to and the year in which the vote was taken. took place.
But the bitter fight to impose a new law in Montana shows just how difficult it is for states to restrict political discourse.
Since 2011, Montana courts have struck down three similar attempts to demand truth in political advertising, saying the laws were “unconstitutionally vague” and therefore violated the free speech rights of Montana residents.
“Unfortunately, the language used was too broad and was not binding,” said Democratic state representative Kimberly Dudik, who wrote an unsuccessful patch this year. “It’s not something that gets done a lot. We are really innovating here.
True, some two dozen states have for years banned lying in a political campaign about certain claims, such as opening polls or whether a candidate has won support.
But now, in a country whose president turned out to have pronounced thousands of lies over the past year, and as opinion polls show an electorate continually skeptical of public servants and the media, many experts say voters deserve to know they are getting the truth from political advertising.
These repressions are not easy, however. The First Amendment to the United States Constitution protects freedom of speech in most forms, and various courts have ruled that state laws restricting political speech infringe these rights. The Supreme Court of the United States has ruled in the historic 2010 United citizens cases where companies also had the right to free speech and campaign donations, making some state efforts even more obscure.
“Asking for the truth makes a lot of sense, but applying what is true is a disputed thing these days,” said Michael Franz, professor of government and legal studies at Bowdoin College in Brunswick, Maine. “It’s important that states take these things into account, but this is where things get tricky.
Consider Montana, one of the least populated states in the country. For years the state has attempted to limit the influence of money in politics, and this year the United States Supreme Court left in place a new Montana law limiting campaign donations.
This year too, two weeks later Dudik’s invoice failed in the House, Democratic State Senator Jen Gross drafted her own bill using similar language. Then, after seeing her bill tabled in committee, she used a procedural maneuver to force a vote in the GOP-led Senate. The bill was passed.
But she couldn’t get a vote in the House when Republican President Greg Hertz said the bill violated House rules because it had “the same purpose” as a recently failed bill. .
Republican State Representative Forrest Mandeville said the legislature should stop “banging its head against the wall” on an issue that is “patently unconstitutional”.
“Every two years the legislator makes some adjustments to it, and every two years the court rejects it,” he said. “I don’t think there is any point in passing an unconstitutional bill so that a few members can feel good about themselves.”
While the Federal Trade Commission requires some truth in commercial advertising, there is no federal regulation for truth in political advertising. And states have had mixed results in their efforts.
As of 2014, 27 states prohibited certain types of misrepresentation, according to the most recent count by the National Conference of State Legislative Assemblies, which follows state laws. Some states prohibit applicants from lying about endorsements, veteran status, or office.
Since then, courts have struck down laws in four of the states: Kentucky, Massachusetts, Minnesota and Ohio.
In 2016, for example, the 6th U.S. Court of Appeals ruled unconstitutional an Ohio law that prohibited campaigns and candidates from disseminating false statements. “Even false speech has some constitutional protection,” said Chief Justice R. Guy Cole Jr. written in his decision.
But David Schultz, a political science professor at Hamline University and a professor at the University of Minnesota Law School, said he believes the First Amendment does not protect lying in politics and that there are constitutional limits on freedom of expression.
Why, he asked, can’t states put in place control over candidates and political action committees that “essentially lie or significantly distort” voting records?
“The structural integrity of democracy is that people speak the truth and play fairly,” Schultz said. “If we don’t have that in place, the system breaks down.”
A substantial percentage of applicants and outside groups are already noting the claims they make in advertisements against applicants with specific bills, quotes or media sources, said Franz de Bowdoin, who is also co-director of Wesleyan Media. Project, that tracks political ads.
“The presumption is that they make the claims more powerful if there is supporting evidence in the advertisements,” Franz said. “But there is a big caveat that claims made with supporting evidence may still not be true.”
Several states have attempted in the past two years to tighten the rules for online political advertising.
California, Maryland, New York, and Washington state have developed new digital political advertising transparency laws following Russian social media interference in the 2016 presidential election.
But again, the courts have rejected these efforts. In January, a federal judge has ruled that the Maryland law that regulates political advertising on social platforms violates the First Amendment.
States have had some success: in December, Facebook announced it would stop posting political ads in Washington after the state sued the social media company and Google in June, accusing them of breaking campaign finance rules for record keeping. At the start of last year, Google also paused political ads in Washington in response to the lawsuit.
David Keating, president of the Institute for Free Speech, a Virginia-based organization that opposes limits on campaign finance, said the latest Montana legislative attempt is just “another example of legislatures trying to requisition the speech of other people for their purposes ”.
“I find it reprehensible – period – that they seek to regulate the content of speech,” he said. “The courts have made it clear that the government is not the police of the word.”
The current system of political advertising, whereby campaigns and groups conform to the standards of different broadcasters, is working well, he said.
Instead of regulating speech, the best way to counter negative advertisements about a candidate is to advertise that candidate, providing enough information for voters to seek the truth, he said.
If a law were to be passed in Montana, said state commissioner for political practices Jeff Mangan, responsible for campaign finance enforcement, he “fully expects” the law to be challenged as soon as possible. departure. He is not optimistic that the courts would support the proposed restrictions.
“I don’t see the courts changing their mind anytime soon,” Mangan said.
Even so, that won’t stop Dudik, the Montana Democrat now running for state attorney general, from once again trying to regulate political ads in her state.
This week, she introduced a new bill. Instead of requiring specific information about actual attack announcements, she said, the legislation would require candidates and groups to file evidence in support of attack announcements with the practices commission. policies, which would then make the information available online to residents.
“We demand truth in advertising in everything else,” Dudik said. “I don’t know why we shouldn’t have it in our countryside.”