Saturday, September 12, 2015
Sunday, June 1, 2014
Crotty Voter Guide
For the June 3rd Primary Election
It's alive, it's alive!
The Crotty voter guide is back following a hiatus going back to the 2012 general election. A great deal has happened since then, including Bob Filner's election and subsequent self-immolation. The Filner Foibles resulted in the Special Mayoral Election, which, in turn, saddled us with Kevin "Don't bother me with policy" Faulconer.
However, don't blame Kevin too much. He had plenty of help from the city's labor unions, which, while spending a couple of million, forgot Elections 101 and failed to move to the middle following the primary and practically handed the keys to the Mayor's office to "the Falcon." Post election diatribe, uh … spin … was that the David Alvarez campaign for Mayor was not as much a campaign as it was a progressive movement. Silly me. I thought winning the Mayor's office and having a majority of Democrats on the City Council was the path to a more progressive San Diego.
However, let's not dwell on the past. We have citywide initiatives B & C that … well, essentially got their start when Kevin "I'll pander to anyone" Faulconer decided to make a mayoral race issue out of the years-long effort to update Barrio Logan's Community Plan.
Throwing the Barrio under the bus to score political points … San Diego's Republicans are back in form.
Seriously, though, let's get excited about this June's election.
Beyond Props B & C, we have Lori Zapf and Sara Boot slugging it out for District 2, Chris Cate and … whoever in District 6 and … and … Well, at least there's the County Board of Supervisors, where … uh, well …
Okay, I just re-read the ballot book. Let's talk about … voter turnout.
Republican polling wiz John Nienstedt confirmed what I've been saying for almost six months. We are headed for an election turnout of historic proportions … historically low proportions … despite the $20 million worth of political advertising statewide for races up and down the ballot. Bill Horn and Lori Zapf are the only local candidates who contributed somewhat to that $20 million. It seems everyone else got by without big bucks … I hope that's not a trend (a guy's gotta make a living).
Whether it's ballot fatigue, boredom or apathy, San Diego voters have yet to get it in gear and get to the polls. Two weeks from Election Day and only 6.2% of voters had returned their mail-in ballot. One week out saw an uptick of almost 10%. However, 16% turnout is well below traditional 40% or more among absentee voters. Applying traditional turnout predictors, the pathetically low absentee voter turnout will still be greater than turnout at the polls. This will result in an overall election turnout of approximately 26%, barely more than L.A.'s 2013 historically anemic 21% turnout.
San Diego's registered voters make up a little less than 50% of the city's total population, which means that a 26% turnout among registered voters will result in a citywide population turnout of 12.7%. Who our next four City Council members will be and whether the Barrio Logan Community Plan remains in place or is repealed will be decided by fewer than 13% of the city's population. That is not "representative democracy" and it's by choice.
Let's get to the ballot and discuss a few campaigns.
State Ballot Propositions
Proposition 41, the California Veterans Housing and Homeless Prevention Bond Act
If the initiative is approved by the state's voters, it will:
- Amend the Veterans’ Bond Act of 2008 to reduce the amount of authorized bonds from $900 million to $300 million.
- Enact the Veterans Housing and Homeless Prevention Bond Act of 2014 to authorize $600 million in bonds to provide multifamily housing, such as apartment complexes, to low-income veterans and supportive housing for homeless veterans.
- Authorize the legislature to amend the bond act by majority vote.
- Impose reporting requirements on the Department of Housing and Community Development and the Department of Veterans Affairs to evaluate any program established by the VHHPA.
- Authorize the Department of Housing and Community Development to provide specified assistance to veterans.
The measure would authorize the state to provide local governments, nonprofit organizations, and private developers with financial assistance, such as low-interest loans, so that they may construct, renovate and acquire affordable multifamily housing for low-income veterans and their families.
“Low-income” is here defined as “those who earn less than 80 percent of average family income, as adjusted by family size and county.” At least one-half of the funds would be used to build supportive housing for homeless veterans.
The allocation from the general tax revenues would average about $50 million annually for 15 years. The amount spent on these programs would be less than one-tenth of one percent of the state budget each year for 15 years.
But, remember, Toni Atkins said in a TV commercial that the $50 million a year for 15 years to be paid for by our tax dollars is not a tax, so don't worry about how it's paid for.
Since it's not a tax, vote "Yes." Heck, vote "Yes" anyway – it's the right thing to do.
California Proposition 42, the California Compliance of Local Agencies with Public Act (Senate Constitutional Amendment 3).
Remember May 2013, when Governor Jerry Brown and the state legislature said they would no longer reimburse local governments for the cost of obtaining public documents for the public? No? Then you must not be a member of the media or one of those government watchdog groups, because they went ballistic.
One newspaper wrote breathlessly that "In a resounding victory for open government advocates and the California media, Gov. Jerry Brown and the Legislature on Thursday backed away from plans to make the state's open-records law essentially optional for cities and other local agencies."
State lawmakers were hit with a torrent of criticism from newspapers around the state, as well as opposition from everyone from liberal open government advocates to Neanderthal conservatives, who feared the change approved by the Legislature would have severely limited the public's right to know what their government is up to.
After deciding to pull about $20 million from local agencies to respond to requests made under the California Public Records Act -- signed by Gov. Ronald Reagan in 1968 -- Brown and Senate leaders reversed course a day after the Assembly did the same.
The political firestorm proved too much to bear for state leaders, particularly in light of the relatively small amount of funding the state was looking to cut, which amounts to 0.02 percent of the state's general-fund budget at a time when the budget had a $1.1 billion surplus.
Well, it's time for local governments to pay their own costs of retrieving documents for the media and the public.
If Prop 42 is approved by the state's voters, it will require all local agencies to comply with the California Public Records Act (CPRA) and the Ralph M. Brown Act (Brown Act) and with any subsequent changes to the acts, thus guaranteeing a person's right to inspect public records and attend public meetings. Prop 42 will also make these laws core government responsibilities, thus ensuring taxpayers are not paying for items local governments have a duty to provide on their own.
The CPRA provides that public records are open to inspection at all times during the office hours of state or local agencies that retain those records and that every person has a right to inspect any public record. The act also requires agencies to establish written guidelines for public access to documents and to post these guidelines at their offices.
The Brown Act requires local legislative bodies to provide notice of the time and place for holding regular meetings and requires that all meetings of a legislative body be open and public. Under the act, all persons are permitted to attend any meeting of the local legislative body, unless a closed session is authorized.
The initiative would result in a fiscal savings for the state government, but would also result in comparable revenue reductions to local governments.
It seems reasonable (when was the last time you said that about anything done by the government?).
Each government agency pays the cost of finding and providing documents to the public. The state saves some money because it no longer is required to backfill local government costs associated with the CPRA or the Brown Act. Local governments must find the money from somewhere (probably from the budget for filling potholes and replacing infrastructure) to pay for the public's right to know without having to pay to learn.
Jerry Brown isn't running a campaign because Tea Partier Tim Donnelly and former TARP ($418 billion federal government bank bailout due to the subprime mortgage crisis and subsequent economic free fall) Director Neel Kashkari have neither the money nor the wherewithal to mount a serious challenge to the Governor formerly known as Moonbeam.
Voters have an overall positive impression of this incarnation of the Governor and no one the Republicans could have run against him would have had a chance.
The bad news is all of the down ballot races. There isn't a single statewide office that is at risk of flipping from Democrat to Republican. No, that's good news. The bad news is that there's nothing statewide to generate any interest and create some enthusiasm for going to the polls, especially those offices far down the ballot (i.e., City Council).
Perhaps the only interesting race for a Constitutional office is Controller. Former Speaker of the Assembly John Perez has the money, while Betty Yee has the qualifications. Guess how that will turn out.
Board of Equalization, District 4
Former Chula Vista Mayor and Assembly member Shirley Horton is one of five Republicans along with some Democratic "Government Auditor" vying for the 4th District Board of Equalization. The BOE was initially charged with responsibility for ensuring that county property tax assessment practices were equal and uniform throughout the state. Currently the tax programs administered by the BOE are concentrated in four general areas: sales and use taxes, property taxes, special taxes and the tax appellate program.
I guess that means the "Government Auditor" ought to get our vote!
All of the Congressional seats will go to the incumbents, including the 52nd District, where Carl DeMaio and the Republican National Congressional Committee are taking on first-termer Scott Peters, the Democratic Congressional Campaign Committee and Scott's fat wallet (if necessary).
I discuss this race as though it's November because both campaigns have been up on TV and trading General Election-like barbs for months already. I love that D'Carl implied that Scott's campaign was somehow linked to his office break-in. Paranoia will destroy ya … or, your credibility.
Usually, a challenger needs a reason other than wanting the seat to dislodge an incumbent. However, Carl is Carl, and I'm certain he'll manufacture something between now and November. You can never underestimate a man with his size ego and a burning desire to be back in the limelight.
Judicial elections are the least visible and possibly among the most important on the ballot. Unfortunately, primarily because they are countywide races, you don't hear much about them.
I'm slightly biased against those with political endorsements, especially from the City Attorney, the Sheriff or the District Attorney. Neither do I look favorably upon attorneys who work for the DA or DOJ. They are prosecutors with the mindset that everyone is guilty until proven otherwise. I like my judges open-minded.
Superior Court Judge; County of San Diego; Office 9
Ronald S. Prager
Crawford didn't bother paying the money to file a ballot statement. No wonder. The San Diego County Bar Association's Judicial Election Evaluation Committee rated Crawford as "Lacking Qualifications."
Prager by default.
Superior Court Judge; County of San Diego; Office 19
Michael J. Popkins is endorsed by both the Lincoln Club of San Diego and the San Diego County Democratic Party.
He must be doing something right. Vote for Popkins.
Superior Court Judge; County of San Diego; Office 20
Judge Lisa Schall received a private admonishment from the state Commission on Judicial Performance in 1995 related to her involvement in a juvenile dependency case. Then in 1999, she was admonished for “an abuse of the contempt power” after incorrectly ordering a woman into custody for five days. About a decade later, Schall was admonished again after she was arrested and found guilty of drunk driving.
Carla Keehn is not incumbent Lisa Schall.
Vote for Carla Keehn.
Superior Court Judge; County of San Diego; Office 25
Michele Hagan is a former Domestic Violence and Child Abuse Prosecutor, Assistant District Attorney and Judge Pro Tem. In 2012, she helped a San Diego domestic violence victim to pass a law to protect victims – no alimony to spouses convicted of violent sexual felonies (AB 1522).
Oh, she's also a Democrat. There are far too few Dems on the bench.
Vote for Michele Hagan
Superior Court Judge; County of San Diego; Office 44
Joseph Adelizzi is a civil litigator with a background outside of the “big government” norm for judges. He has an unusually parent-friendly attitude toward family law matters – favoring alternative dispute resolution and cost effective litigation management. He is keenly sensitive to how the litigation process is frequently harmful to litigants and their children, and understands how existing family court and industry practices exacerbate that harm.
The local Bar Association rated Judge Jacqueline Stern “qualified.” Sitting judges are very rarely rated below “well-qualified.”
You do the math.
Vote for Joseph Adelizzi
County Assessor/Recorder/County Clerk
To refresh your memory, incumbent Ernie Dronenburg filed suit to to halt same-sex marriages from taking place. The legal work was paid for by Prop 8 attorney and lead counsel for the Freedom of Conscience Defense Fund, Charles LiMandri, according to an October 28 “Behested Payment Report” Dronenburg filed with the county. The form reveals LiMandri donated $11,240 in legal work to Dronenburg and the county to pay for “services required for the drafting and filing of a legal brief with the State Supreme Court.” Dronenburg described the legal work as “filing legal brief raising questions and asking for guidance.”
The Fair Political Practices Commission sent a letter to Dronenburg, admonishing him for failing to report the in-kind donation from LiMandri.
Aside from that, the current backlog in the assessor’s office is a serious problem for San Diego County taxpayers.
Susan Guinn has been a consumer attorney for over 20 years. She is a two time past president of Western Trial Lawyers and served on the board of the Consumer Attorneys of California. Her firm obtained a $3.3 billion settlement from Big Tobacco to benefit county government. She is well versed in property valuations and has the skills necessary to serve as Assessor/Recorder/County Clerk.
Plus, she's not Ernie Dronenburg.
Vote Susan Guinn
(With thanks to Doug Porter at the San Diego Free Press, from whom I plagerized shamelessly.)
High profile events attended by Bonnie Dumanis that seemingly weren’t disclosed in financial reports as required by law. Now, District Attorney Bonnie Dumanis is the subject of two state ethics complaints alleging she failed to report meals and travel she accepted from interest groups — complaints filed by a supporter of a political challenger on the June 3 ballot.
The allegations raise a particular issue for Dumanis, who has led a high-profile prosecution in the past three years of more than a dozen officials in South County for accepting meals and other considerations and not reporting them on state forms.
What we’re looking at here are fifty or so free meals with a total value of $4583, according to the story. The on-line version of the UT also has a handy-dandy photo gallery of Dumanis at some of these events, including:
§ February, 2012 ($100)- The Neighborhood Market Association
§ May, 2012 ($125)- Lawyer’s Club of San Diego 40th Anniversary
§ September, 2012 (Registration + Dinner) Chamber of Commerce DC Lobbying Trip
§ January, 2013 ($50) – San Diego Association of Realtors
§ February, 2013 ($200) Downtown San Diego Partnership Event
§ March, 2013 ($200) National Conflict Resolution Center
§ October, 2013 ($135) San Diego La Raza Lawyers Association
The UT says they provided the DA’s office with a list of the events in question, “but the office declined to say whether the DA attended for free and what her policies are on accepting and reporting such gifts.”
Ex-City Council woman Donna Fry appeared at a downtown press conference yesterday with Dumanis challenger Bob Brewer to call for release of recently discovered documents relating to a (mostly) failed investigation of Chula Vista politicians.
After telling KPBS back in February that records pertaining to a phone call ex-Chula Vista Mayor Steve Padilla said he got from Dumanis did not exist, the DA’s office is now obviously stalling for time before releasing the documents.
But when KPBS sent a Public Records Act request to Patrick O’Toole – the prosecutor who handled the Chula Vista investigations – he gathered the records in just hours and gave them to officials in the District Attorney’s Office.
Dumanis’ office said it never asked O’Toole if he had the documents because typically that information is kept in a case file that has long since been closed.
But the information sought by KPBS was not about case pleadings and motions. It was related to Padilla’s assertion that Dumanis had asked him to appoint her aide to a vacant City Council seat in that 2005 call. Within weeks of Padilla’s refusal, Dumanis initiated an investigation of the entire Chula Vista council.
The District Attorney’s Office told KPBS that it needed more time because the request was not restricted to records O’Toole handed over. KPBS promptly amended its request to ask for only what O’Toole has delivered. The office still has not released the records.
The real deal with Dumanis isn’t really about these allegations. They’re minor and she’ll probably skate free from any consequences. But they are indicative of a much larger problem.
Politics, not the law, is what rules the roost in the County District Attorneys office these days. The rank and file of local law enforcement agencies have come out solidly against the incumbent. The rank and file of the downtown set have come out in favor of Bonnie Dumanis.
Here’s a comment posted recently by ex-prosecutor Dave Stutz:
Within 3 hours of making a call to Sycuan to ask about a $25,000 contribution to “Kolender for Sheriff”‘, which would be illegal, I was called into her office and told to stop the investigation. No one knew about my call expect Sycuan and myself. Either Kolender or Sycuan called her and she stopped an investigation without knowing what is was about nor did she ask. For the next year Dumanis was led by a leash by Kolender endorsing right wing candidates on a “law and order” ticket. She has been in their bag since day one.
Terri Wyatt, a 27-year DA's office veteran, began too late and doesn't have the resources to win this time around. If Dumanis ekes out 50% plus one in June, Wyatt is well positioned to run in four years.
Bob Brewer's time is now. He's matched Bonnie in fundraising, obtained major law enforcement organizations and has done well in framing Dumanis as too political to be an effective DA. In addition, Brewer is benefitting from Dumanis' own missteps. He's positioned himself as the anti-Dumanis and it's working.
It would be a major upset, but why not? Let's jump on the Brewer Bandwagon!
Fifth District County Supervisor
See http://voiceofsandiego.org/2014/05/21/jim-wood-the-populist-candidate-with-some-people-problems, then you decide for yourself.
Second District San Diego City Council
When Kevin Faulconer won the special election for San Diego's mayor this year, he left behind an open seat in District 2. Although Councilwoman Lorie Zapf represents District 6, redistricting moved her Bay Ho home to District 2. She's now running for election in District 2.
Lorie received her Master's Degree in Marketing Communications from the University of Denver. She and her husband started a business making an all-natural energy bar that was sold in grocery, health food and sporting goods stores across the United States and Canada. The Zapf's later moved to San Diego.
Lorie successfully ran for City Council in 2010 on a fairly typical Republican platform of "running government like a business" and improving public safety.
Lorie successfully ran for City Council in 2010 on a fairly typical Republican platform of "running government like a business" and improving public safety.
Sarah Boot is a former federal prosecutor, an occupation rarely associated with Democrats. She led investigations to dismantle cross-border drug trafficking organizations and has prosecuted drug dealers, bank robbers and criminals who sell young children for sex on the streets of San Diego, according to her website.
Before her job with the U.S. Attorney's Office, Sarah worked in a private practice representing local technology companies, internet companies and non-profits, as well as litigation involving contract and employment disputes, intellectual property and land use.
Boot is running on issues familiar to those in the 2nd District, including neighborhood services, neglected infrastructure, height limits on development and crime.
Zapf is trashing Boot with several hundred thousand dollars from all of the usual Republican suspects. If there is a message between the hit pieces, it's extolling the virtues of increased budget revenues, alleged pension savings, managed competition and other DeMaio-like issues.
Kevin Faulconer could get away with talking about right-wing issues because, gee wiz, he seemed like a nice guy. Zapf doesn't have that luxury.
The outcome of this race will be interesting. Boot is focusing on neighborhood issues, which plays well. Zapf is talking about what a great job she did on the Council.
It's Zapf's money and the thrashing Boot is taking in the mail that is worrisome for the Democrat, especially with a low voter turnout. Remember, Republican voters generally turn out in higher percentages than Democrats.
Given the circumstances, if Sarah has a good ground operation, she could make it. If not, Zapf and her money come out on top.
I don't see Jim Morrison or Mark Schwartz taking enough votes to force a runoff.
This race breaks along partisan political lines, so if you are a partisan, you know for whom you'll vote. If you're not partisan, what are you doing voting in a June primary election?
Sixth District San Diego City Council
Republican Chris Cate, a longtime lobbyist with the San Diego County Taxpayers Association and the organization's Vice President, stands for whatever the local business establishment wants him to, including loosening environmental regulations and repealing the linkage fee on commercial development for affordable housing.
Cate has raised more than $100,000 in 2013 from developers, Cox Communications, lobbyists with California Strategies and, most importantly, San Diego's Republican Party.
He'll get as much money as he needs from the Lincoln Club.
Democrat Carol Kim lags behind Cate in fundraising, with a large chunk of cash coming from the county's Democratic Party.
Former Republican School Board member Mitz Lee is running as an independent or No Party Preference (NPP) candidate. There are two other candidates in the race, De Quang Le and Keith Wong.
This race comes down to whether Cate can outpoll Kim on Tuesday or whether Lee and others can pull enough votes from Cate to prevent him from winning the election outright, so Kim can take him on in the fall.
San Diego Elections Charter Amendment, Measure A
Brought to you from the Registrar of Voters Sample Ballot
Measure A would alter the city charter to make its election process more compatible with state law. It would also give the city elections office more time to mail out ballots, count ballots and certify election results.
Measure A would improve the elections process in the city in two important ways:
- It would protect the voting rights of military voters and other overseas voters by allowing more time for ballots to be mailed out and for the counting and certification of submitted ballots
- It would make the elections process compatible with the process mandated by state law.
There is no known opposition to Proposition A.
San Diego Measures B & C
The Barrio Logan Community Plan Update was approved by the San Diego City Council in 2013. However, the maritime industry, business groups and then-Mayoral candidate Kevin Faulconer opposed the plan. They launched a petition drive, collected enough signatures and now voters will decide on June 3 if the plan moves forward or not.
The heart of the matter is a five-block-long commercial buffer zone that separates residential and industrial zones. The plan allows "community and neighborhood commercial uses'' in the buffer area, but no houses.
Supporters of Props B and C say the Barrio Logan plan is a change that's long overdue. They say the plan will ease health risks for Barrio Logan residents who live near shipbuilding facilities.
Opponents of the plan update say the council's actions would hurt the nearby shipbuilding industry. Ballot language backed by five retired Navy rear admirals calls the plan "a dangerous first step toward elimination of San Diego's shipyards."
All San Diego residents, whether they live in Barrio Logan or not, can cast votes on the issue. Mayor Kevin Faulconer (I will never get used to saying or writing those three words in that order) has since reversed his campaign position and is supporting the community plan.
If I were running the campaign for B & C, I would send mail to Del Mar Heights, Fairbanks Ranch Country Club, Kensington-Talmadge, La Jolla, Point Loma, Rancho Bernardo, Rancho Peñasquitos, Sabre Springs, Torrey Pines and other nice neighborhoods and ask whether they would like it if folks from the Barrio had input on their community plans.
In fact, I'll ask that the answer to the abovementioned question determine which way you vote.
Remember to vote Tuesday; it's one of the most important responsibilities of being a U.S. citizen.
That's it for June. Email me with any questions or comment below.
That's it for June. Email me with any questions or comment below.
Friday, March 28, 2014
March 26, 2014
By P.J. O'ROURKE and ILYA SHAPIRO
In Ohio, it's a crime to knowingly or recklessly lie about a political candidate or ballot initiative. When the Susan B. Anthony List, an anti-abortion nonprofit, attempted during the 2010 midterm elections to buy a billboard attacking then-Rep. Steven Driehaus, who represented the state's 1st congressional district, Driehaus’s lawyers invoked Ohio law. And the billboard, which would have read, “Shame on Steve Driehaus! Driehaus voted FOR taxpayer-funded abortion”—a reference to the Affordable Care Act—never went up. In fact, Driehaus voted for the landmark health-care bill only after President Obama guaranteed that tax dollars would not be used to fund abortion.
After the election (which Driehaus lost), the Susan B. Anthony List filed a federal lawsuit challenging the Ohio law on free speech grounds. Next month, after several appeals, Susan B. Anthony List v. Driehaus, No. 13-193 is due to be argued before the U.S. Supreme Court. If the court decides that the nonprofit has standing to sue in the first place, the case could have a big effect on what’s fair game during campaign season.
In the amicus brief submitted to the court and published below with their permission, political satirist P.J. O’Rourke and Ilya Shapiro of the Cato Institute make the case—earnestly, albeit facetiously—for the importance of protecting untruths, or “truthiness” in politics. What follows is perhaps the most entertaining—if not the greatest—legal brief in American history.
Supreme Court of the United States
Susan B. Anthony List, et al., Petitioners
Steven Driehaus, et al., Respondents
On a Writ of Certiorari
to the United States Court of Appeals
for the Sixth Circuit
to the United States Court of Appeals
for the Sixth Circuit
BRIEF OF AMICI CURIAE CATO INSTITUTE
AND P.J. O’ROURKE IN SUPPORT OF
AND P.J. O’ROURKE IN SUPPORT OF
Counsel of Record
1000 Mass. Ave. NW
Washington, DC 20001
Counsel of Record
1000 Mass. Ave. NW
Washington, DC 20001
Can a state government criminalize political statements that are less than 100% truthful?
TABLE OF CONTENTS
INTEREST OF AMICI CURIAE.....................................................................................1
INTRODUCTION AND SUMMARY OF THE ARGUMENT......................................2
I. TRUTHINESS, INSINUATIONS, AND ALLEGATIONS ARE A VITAL PART OF POLITICAL SPEECH....................................................................................6
II. TRUTHINESS, INSINUATIONS, AND ALLEGATIONS ARE PROTECTED BY THE FIRST AMENDMENT…………………………………………..........8
III. THE PUBLIC INTEREST IN POLITICAL HONESTY IS BEST SERVED BY PUNDITS AND SATIRISTS..............................................................................15
INTEREST OF AMICI CURIAE1
1. Pursuant to this Court’s Rule 37.3(a), letters of consent from all parties to the filing of this brief have been submitted to the Clerk. Pursuant to this Court’s Rule 37.6, amici state that this brief was not authored in whole or in part by counsel for any party, and that no person or entity other than amici made a monetary contribution its preparation or submission. Also, amici and their counsel, family members, and pets have all won the Congressional Medal of Honor.
Established in 1977, the Cato Institute is a non-partisan public policy research foundation dedicated to advancing the principles of individual liberty, free markets, and limited government. Cato’s Center for Constitutional Studies was established in 1989 to help restore the principles of constitutional government that are the foundation of liberty. Toward those ends, Cato holds conferences and publishes books, studies, and the annual Cato Supreme Court Review.
P.J. O’Rourke is America’s leading political satirist and an H.L. Mencken Research Fellow at the Cato Institute. Formerly the editor of the National Lampoon, he has written for such publications as Car and Driver, Playboy, Esquire, Vanity Fair, House & Garden, The New Republic, The New York Times Book Review, Parade, Harper’s, and Rolling Stone. He is now a contributing editor at The Atlantic and The Weekly Standard, a member of the editorial board of World Affairs, and a regular panelist on NPR’s Wait, Wait . . . Don’t Tell Me. O’Rourke’s books have been translated into a dozen languages and are worldwide bestsellers. Three have been New York Times bestsellers: Parliament of Whores, Give War a Chance, and All the Trouble in the World. He is also the author of Eat the Rich, Peace Kills, and Don’t Vote: It Just Encourages the Bastards.
This case concerns amici because the law at issue undermines the First Amendment’s protection of the serious business of making politics funny.
INTRODUCTION AND SUMMARY OF THE ARGUMENT
“I am not a crook.”
“Read my lips: no new taxes!”
“I did not have sexual relations with that woman.”
“If you like your healthcare plan, you can keep it.”
While George Washington may have been incapable of telling a lie,2 his successors have not had the same integrity. The campaign promise (and its subsequent violation), as well as disparaging statements about one’s opponent (whether true, mostly true, mostly not true, or entirely fantastic), are cornerstones of American democracy. Indeed, mocking and satire are as old as America, and if this Court doesn’t believe amici, it can ask Thomas Jefferson, “the son of a half-breed squaw, sired by a Virginia mulatto father.”3 Or perhaps it should ponder, as Grover Cleveland was forced to, “Ma, ma, where’s my pa?”4
4. Answer: “Gone to the White House, ha ha ha!” Elisabeth Donnelly, Ye Olde Sex Scandals: Grover Cleveland’s Love Child, The Awl.
In modern times, “truthiness”—a “truth” asserted “from the gut” or because it “feels right,” without regard to evidence or logic5—is also a key part of political discourse. It is difficult to imagine life without it, and our political discourse is weakened by Orwellian laws that try to prohibit it.
5. Wikipedia.com, Truthiness, (last visited Feb. 28, 2014) (describing the term’s coinage by Stephen Colbert during the pilot of his show in October 2005). See also Dictionary.com, Truthiness, (last visited Feb. 28, 2014).
After all, where would we be without the knowledge that Democrats are pinko-communist flag-burners who want to tax churches and use the money to fund abortions so they can use the fetal stem cells to create pot-smoking lesbian ATF agents who will steal all the guns and invite the UN to take over America? Voters have to decide whether we’d be better off electing Republicans, those hateful, assault-weapon-wielding maniacs who believe that George Washington and Jesus Christ incorporated the nation after a Gettysburg reenactment and that the only thing wrong with the death penalty is that it isn’t administered quickly enough to secular-humanist professors of Chicano studies.
Everybody knows that the economy is better off under [Republican/Democratic]6 presidents—who control it directly with big levers in the Oval Office—and that:
President Obama is a Muslim.
President Obama is a Communist.
President Obama was born in Kenya.
6. Circle as appropriate.
Nearly half of Americans pay no taxes.7
One percent of Americans control 99 percent of the world’s wealth.
Obamacare will create death panels.
Republicans oppose immigration reform because they’re racists.
7. 47 percent to be exact, though it may be higher by now.
The Supreme Court is a purely political body that is evangelically [liberal/conservative].8
8. Again, pick your truth.
All of the above statements could be considered “truthy,” yet all contribute to our political discourse.
Laws like Ohio’s here, which criminalize “false” speech, do not replace truthiness, satire, and snark with high-minded ideas and “just the facts.” Instead, they chill speech such that spin becomes silence. More importantly, Ohio’s ban of lies and damn lies9 is inconsistent with the First Amendment.
9. Amici are unsure how much torture statistics can withstand before they too run afoul of the law.
This Court has repeatedly held that political speech, including and especially speech about politicians, merits the highest level of protection. See, e.g., Burson v. Freeman, 504 U.S. 191, 196 (1992) (“the First Amendment has its fullest and most urgent application to speech uttered during a campaign for political office.”). Indeed, quite recently this Court held that the First Amendment protects outright lies with as much force as the truth. United States v. Alvarez, 132 S. Ct. 2537 (2012).
It is thus axiomatic—not merely truthy—that speech may only be restricted or regulated where doing so is necessary to further a compelling state interest. But the government has no compelling interest in eliminating truthiness from electioneering and, even if such an interest existed, such laws are unnecessary because any injury that candidates suffer from false statements is best redressed by pundits and satirists—and if necessary, civil defamation suits.
Nor is the government well-suited for evaluating when a statement crosses the line into falsehood.10
10. Two Pinocchios out of five is OK, but three is illegal?
Ohio’s law blatantly violates the First Amendment and directly conflicts with Alvarez. This Court should terminate it with extreme prejudice.
I. TRUTHINESS, INSINUATIONS, AND ALLEGATIONS ARE A VITAL PART OF POLITICAL SPEECH
In the hotly contested election of 1828, supporters of John Quincy Adams called Andrew Jackson a “slave-trading, gambling, brawling murderer.” Max McClelland, Ten Most Awesome Presidential Mudslinging Moves Ever, Mother Jones, (October 31, 2008).11 Jackson’s supporters responded by accusing Adams of having premarital sex with his wife and playing the role of a pimp in securing a prostitute for Czar Alexander I. Id.
During Thomas Jefferson’s presidency, James T. Callender, a pamphleteer and “scandalmonger,” alleged that Jefferson had fathered numerous children with his slave Sally Hemings.12 Callender’s allegations would feature prominently in the election of 1804, but it wasn’t until nearly two centuries later that the allegations were substantially confirmed.13
13. Monticello.org, Thomas Jefferson and Sally Hemings: A Brief Account.
More recently, we’ve had discussions of draft-dodging, Swift Boats, and lying about birthplaces14—not to mention the assorted infidelities that are a political staple. Any one of these allegations, if made during an Ohio election, could be enough to allow a complaint to be filed with the Ohio Election Commission (OEC) and thus turn commonplace political jibber-jabber into a protracted legal dispute.
14. While President Obama isn’t from Kenya, he is a Keynesian—so you can see where the confusion arises.
When political barbs become legal disputes, the public is denied an important part of political speech, namely, responses to those allegations. “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.” Whitney v. California, 274 U.S. 357, 377 (1927).
Inflammatory, insulting, and satirical speech is more likely to produce a response, thus making the back-and-forth of politics a self-correcting marketplace of ideas—except, of course, when candidates can tattle to the government, which then takes away their
This case began when Rep. Steven Driehaus responded to an advocacy group’s political attack15 by filing a complaint with the OEC. Cert. Pet. at 2. Resources that could have been spent responding to the petitioner’s truthiness were thus redirected to a bizarre legal fight. And this caused a ripple effect: The Coalition Opposed to Additional Spending and Taxes felt sufficiently chilled by Driehaus’s actions to refrain from engaging in the campaign at all. Id. at 4. Ohio’s law thus ultimately weakened the vibrancy of the state’s political discourse.
15. Driehaus voted for Obamacare, which the Susan B. Anthony List said was the equivalent of voting for taxpayer-funded abortion. Amici are unsure how true the allegation is given that the healthcare law seems to change daily, but it certainly isn’t as truthy as calling a mandate a tax.
Supporters of Ohio’s law believe that it will somehow stop the lies, insults, and truthiness, raising the level of discourse to that of an Oxford Union debate.16 Not only does this Pollyannaish hope stand in the face of all political history, it disregards the fact that, in politics, truths are felt as much as they are known. When a red-meat Republican hears “Obama is a socialist,” or a bleeding-heart Democrat hears, “Romney wants to throw old women out in the street,” he is feeling a truth more than thinking one. No government agency can change this fact, and any attempt to do so will stifle important political speech.
16. Amici’s counsel has been to an Oxford Union debate; the level of discourse is not always that high.
II. THIS COURT HAS ALREADY HELD THAT TRUTHINESS, INSINUATIONS, AND ALLEGATIONS ARE PROTECTED BY THE FIRST AMENDMENT
1. Many campaign statements cannot easily be categorized as simply “true” or “false.” According to Politifact.com, President Obama’s claim that “if you like your health-care plan you can keep it” was true five years before it was named the “Lie of the Year.”17 More importantly, even if such a categorization could be made, false (and truthy) speech is protected by the First Amendment, especially if it’s political.
17. Compare Politifact.com, Obama’s Plan Expands Existing System, Oct. 9, 2008, with Politifact.com, Lie of the Year: ‘If you like your health care plan, you can keep it,’ Dec. 12, 2013.
In United States v. Alvarez, this Court held that there is no “general exception to the First Amendment for false statements.” 132 S. Ct. at 2544. In that case, the speech was entirely false, and there was no reasonable way to interpret it as truthful. Yet if Alvarez confirmed that the First Amendment protects even blatant lies made in the process of campaigning for office, surely it protects spin, parody, and truthiness.
In declaring unconstitutional an equivalent ban on false campaign speech, the Washington Supreme Court held that the government’s claimed interest in prohibiting false statements of fact was invalid, in part because it “presupposes the State possesses an independent right to determine truth and falsity in political debate, a proposition fundamentally at odds with the principles embodied in the First Amendment. Moreover, it naively assumes that the government is capable of correctly and consistently negotiating the thin line between fact and opinion in political speech.” Rickert v. Pub. Disclosure Comm’n, 168 P.3d 826, 849-850 (Wa. 2007).
This Court has held that as “neither factual error nor defamatory content suffices to remove the constitutional shield from criticism of official conduct, the combination of the two elements is no less inadequate. This is the lesson to be drawn from the great controversy over the Sedition Act of 1798.” N.Y. Times v. Sullivan, 376 U.S. 254, 273 (1964). By the same logic, false and defamatory statements about politicians’ backgrounds—including their voting records—are also constitutionally protected. Statements that are merely false, and not inherently defamatory, must therefore also be protected.
Ohio’s law explicitly prohibits not merely defamatory falsehoods, but all of them—including the sort of self-promoting lies that this Court held to be constitutionally protected in Alvarez. And not only does it make no distinction between defamatory and non-defamatory statements, but the petitioners’ allegation could not have been inherently defamatory given that more than 78 percent of Americans favor legal abortion in at least some cases.18
18. Gallup.com, Abortion, (last visited Feb. 28, 2014) (latest poll, from May 2013: 26 percent favoring legal abortion always, 52 percent sometimes, 20 percent never).
2. This case began with a claim—”Steve Driehaus voted to fund abortions”—that certainly could have caused consternation if uttered at a bar or dinner party. Surreally, it ended up before the U.S. Supreme Court. Even worse, there is no question whether Driehaus voted for the bill at issue; the only dispute is whether that bill actually provides federal funding for abortions—which is a question of legal, economic, and even theological interpretation.
Statements of this kind—call them truthiness, spin, smear, or anything else—are as politically important as their factually pure counterparts. Democracy is based on the principle that the people elect representatives who reflect their beliefs and values, and whom they trust. Beliefs drive democracy—not some truth as adjudged by Platonic guardians—and there is no law that could make it otherwise. Those voters who believed that the Patient Protection and Affordable Care Act provides federal funding for abortion-on-demand (as many do) were told by the Susan B. Anthony List that one candidate had voted in favor of that law. The voters’ beliefs were more important and relevant than the technical truths about the underlying legislation.
The Ohio law extends far beyond disputes over interpretation or implication. Its broad language also criminalizes rhetorical hyperbole and political satire. If, instead of a billboard reading “Driehaus voted for federally funded abortion,” the petitioners had erected a billboard that said “Driehaus is a baby killer” the law would apply with equal effect. All the statute requires is: (1) that the statement be false; (2) that the speaker knew the statement was false, or spoke with reckless disregard for the truth; and (3) that the statement was made with the intent of impacting the outcome of the election. Ohio Rev. Code § 3517.21(B) It is thus apparently illegal in Ohio for an outraged member of the public to call a politician a Nazi or a Communist—or a Communist Nazi, for that matter. That is no exaggeration: the law criminalizes a misstatement made in “campaign materials,” which includes “public speeches.” Id.
And it is irrelevant that the law is limited to cases where the statements were made “knowingly” or with reckless disregard for the truth. It would not be a total defense to any charge under the law to simply state, “I honestly thought this was true.” Instead, some fact-finder (whether the OEC, a judge, or a jury) will have to determine (1) whether the statement was false, and (2) whether the defendant knew it was false, or spoke recklessly.
The law also stifles, chills, and criminalizes political satire. For example, it is a crime in Ohio for a late-night talk-show host to say: “Candidate Smith is a drug-addled maniac who escaped from a mental institution.” Even satirists and speakers that are clearly attempting primarily to entertain their audiences are subject to prosecution if they intend or expect their statements to impact how the audience perceives a candidate. A publication like The Onion—which regularly puts words in political figures’ mouths, or makes up outlandish stories about them—could be violating Ohio law by making people think at the same time it makes them laugh.
3. This law is a paradigmatic example of a content-specific speech restriction that the First Amendment protects against. Why should a false or exaggerated statement about a politician attract government sanction, when that same statement made about another public figure would not?
In Alvarez this Court expressed its concern that upholding the Stolen Valor Act “would endorse government authority to compile a list of subjects about which false statements are punishable.” 132 S. Ct. at 2547. Yet that is precisely what Ohio’s legislature has done. While one subsection serves as a catch-all prohibition on all “false” statements made about a candidate, Ohio Rev. Code § 3517.21(B)(10), the majority of the section is devoted to a specific list of subjects about which false statements are punishable, including: a candidate’s education (2), work history (3), criminal record (4-5), mental health (6), military service (7), and voting record (9).
But wait, there’s more! Refraining from stating (arguable) falsehoods is not enough to stay clear of violating the law. For example, the regulation of statements concerning a politician’s criminal record requires speakers to actively take steps to avoid even the possibility of misinterpretation. If an Ohio political candidate has been indicted a dozen times on corruption and racketeering charges, you cannot lawfully say “Candidate Smith has been repeatedly indicted for corruption” without also saying how those indictments were resolved. Ohio Rev. Code § 3517.21(B)(5). Even if this Court were to reverse itself and hold that false statements are outside the scope of First Amendment protection, there is no question that truthful statements about candidates’ criminal records are “at the core of our electoral process and of the First Amendment freedoms.” Williams v. Rhodes, 393 U.S. 23, 32 (1968).
There is no reason why speech about these topics should be subject to regulation by the state, or why they should only be regulated for the benefit of politicians as opposed to other public figures—like actors, religious leaders, and famous athletes—who are often lied about. See, e.g., Hustler Magazine v. Falwell, 485 U.S. 46 (1988) (the First Amendment protects magazine accusing religious leader of a sexual relationship with his mother); Beckham v. Bauer Publ’g Co., 2011 U.S. Dist. LEXIS 32269 (C.D. Cal. Mar. 17, 2011) (a newspaper asserting that famous soccer player had cheated on his wife with a prostitute was protected by both the First Amendment and anti-SLAPP statutes); N.Y. Times v. Sullivan, 376 U.S. 254 (1964) (protecting false statements about police officers’ conduct). Nor are Ohio politicians so particularly thin-skinned that they require protection that politicians in other states do not. See, e.g., Judge Dismisses Libel Suit Against Tenn. Senator, Associated Press, Apr. 26, 2013 (unreported case regarding allegations that a politician’s opponent had been arrested on drug charges).19 “Politics are politics, and it’s a big boys’ and big girls’ game. That’s just the way it is.” Id. (judge’s comments in dismissing the suit).
Those cases where the courts have allowed libel suits based on spurious statements about celebrities further demonstrate that the appropriate remedy when it comes to lies about public figures is, if anything, a civil suit. See, e.g., Burnett v. Nat’l Enquirer, 144 Cal. App. 3d 991 (Cal. Ct. App. 1983) (publisher can be held civilly liable for defamatory and false speech); Eastwood v. Nat’l Enquirer, 123 F.3d 1249 (9th Cir. 1997) (fabrication of public figure’s interview answers civilly actionable).
This Court has also limited the remedies states can provide to subjects of false speech. It would be incoherent if states were allowed to apply criminal sanctions—as Ohio attempts to do here—for conduct to which this Court has held the Constitution only permits the attachment of compensatory liability. See Gertz v. Robert Welch, 418 U.S. 323 (1974) (even when the subject of false statement is not a public official, liability for anything beyond actual damages can only be established by proof of actual malice).
While the mere fact that the courts have not recognized an exception to the First Amendment in the past does not mean that such an exception does not exist, this Court requires that those advocating for such an exception show “persuasive evidence that a novel restriction on content is part of a long (if heretofore unrecognized) tradition of proscription.” Brown v. Entm’t Merch. Ass’n, 131 S. Ct. 2729, 2734 (2011). In Alvarez, this Court held that the government had not proven a longstanding tradition of restricting false statements made by or about a political candidate. 132 S. Ct. at 2548. If the historical record provides evidence for any longstanding tradition in this regard, it is the venerable practice of politicians’ lying about themselves and each other with complete impunity.
III. THE PUBLIC INTEREST IN POLITICAL HONESTY IS BEST SERVED BY PUNBITS AND SATIRISTS
This country has a long and estimable history of pundits and satirists, including amici, exposing the exaggerations and prevarications of political rhetoric. Even in the absence of the First Amendment, no government agency could do a better job policing political honesty than the myriad personalities and entities who expose charlatans, mock liars, lambaste arrogance, and unmask truthiness for a living.
Just two terms ago, this Court agreed whole-heartedly with that sentiment:
The remedy for speech that is false is speech that is true. This is the ordinary course in a free society. The response to the unreasoned is the rational; to the uninformed, the enlightened; to the straight-out lie, the simple truth. See Whitney v. California, 274 U. S. 357, 377 (1927) (Brandeis, J., concurring) (“If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence”). The theory of our Constitution is “that the best test of truth is the power of the thought to get itself accepted in the competition of the market,” Abrams v. United States, 250 U. S. 616, 630 (1919) (Holmes, J., dissenting). The First Amendment itself ensures the right to respond to speech we do not like, and for good reason. Freedom of speech and thought flows not from the beneficence of the state but from the inalienable rights of the person. And suppression of speech by the government can make exposure of falsity more difficult, not less so. Society has the right and civic duty to engage in open, dynamic, rational discourse. These ends are not well served when the government seeks to orchestrate public discussion through content-based mandates.
Alvarez, 132 S. Ct. at 2550 (emphases added).
As Chief Judge Kozinski argued when Alvarez was before the Ninth Circuit, a prohibition on lying devalues the truth: “How can you develop a reputation as a straight shooter if lying is not an option? Even if untruthful speech were not valuable for its own sake, its protection is clearly required to give breathing room to truthful self-expression, which is unequivocally protected by the First Amendment.” United States v. Alvarez, 638 F.3d 666, 675 (9th Cir. 2011).
No one should be concerned that false political statements won’t be subjected to careful examination. As this Court said in Brown v. Harlage, “a candidate’s factual blunder is unlikely to escape the notice of, and correction by, the erring candidate’s political opponent. The preferred First Amendment remedy of ‘more speech, not enforced silence,’ thus has special force.” 456 U.S. 45, 61 (1982). Recent technological advancements mean that statements by or about candidates will not just attract the attention of his or her opponents—instantly—but that of investigative journalists and professional fact checkers.
Politicians who are caught lying about themselves or others regularly attract more attention from the press than the subject of the original lie. The typical outcome is that the lie or cover up becomes more important than the original accusation or offense. And that dynamic predates smartphones and their latest “apps.” The impeachment of President Clinton was not based on any sexual activities he might have engaged in with Monica Lewinsky, but over the attempt to cover it up. Similarly, President Nixon’s resignation was prompted by his obfuscations rather than his orchestration of a third-rate burglary. And if this Court isn’t yet convinced of this point, amici have but two words more on the subject: Anthony Weiner.
If Ohio’s concern is that there are abundant lies being told in campaigns that escape media notice—and cannot be proven in a civil defamation suit—wouldn’t that same lack of evidence hamstring prosecution under Ohio Rev. Code § 3517.21? Anyone who could fabricate enough evidence to mislead all of the fact-checkers and investigators who scrutinize his fables could surely evade a charge under this law.
Adding further penalties will not dissuade successful and talented liars. The only way that such a law could offer the public greater protection from untruthful speech—accepting for the sake of argument that such protection is lawful, desirable, and necessary—would be if it adopted lower standards of proof than those required by civil defamation suits or newspaper editors.
There is no lie that can be told about a politician that will not be more damaging to the liar once the truth is revealed. A crushing send-up on The Daily Show or The Colbert Report will do more to clean up political rhetoric than the Ohio Election Commission ever could.
Criminalizing political speech is no laughing matter, so this Court should reverse the court below.
Counsel of Record
1000 Mass. Ave., NW
Washington, D.C. 2000
Counsel of Record
1000 Mass. Ave., NW
Washington, D.C. 2000
P.J. O'Rourke is a political satirist and an H.L. Mencken research fellow at the Cato Institute.
Ilya Shapiro is a senior fellow in constitutional studies at the Cato Institute and editor-in-chief of the Cato Supreme Court Review.