We Reserve the Right to Lie About Our Politicians

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.

—Elizabeth Ralph

No.13-193

In The

Supreme Court of the United States

Susan B. Anthony List, et al., Petitioners

v.

Steven Driehaus, et al., Respondents

On a Writ of Certiorari
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
PETITIONERS

Ilya Shapiro
Counsel of Record
Cato Institute
1000 Mass. Ave. NW
Washington, DC 20001
(202) 842-2000
ishapiro@cato.org

***

QUESTION PRESENTED

Can a state government criminalize political statements that are less than 100% truthful?

***

TABLE OF CONTENTS

QUESTION PRESENTED...............................................................................................i

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

CONCLUSION..............................................................................................................18

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.”

“Mission accomplished.”

“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

2. Apocryphal.

3. Monticello.org, Son of a Halfbreed Indian Squaw (Quotation), (last visited Feb. 28, 2014).

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.

***

ARGUMENT

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.

11. Available here. 

 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

12. Monticello.org, James Callender.

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 toys speech.

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).

19. Available here.

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.

CONCLUSION

Criminalizing political speech is no laughing matter, so this Court should reverse the court below.

Respectfully submitted,

Ilya Shapiro
     Counsel of Record
Cato Institute
1000 Mass. Ave., NW
Washington, D.C. 2000
(202) 842-0200
ishapiro@cato.org

 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.

Thanks For Being So Cool About Everything

Commentary • Opinion • ISSUE 50•11 • Mar 20, 2014

By Vladimir Putin

As you know, the last few weeks have been kind of crazy around here. Last month, protests in Ukraine ousted the country’s Kremlin-allied president and ignited a wave of Ukrainian nationalism that threatened to destabilize Russia’s economic and military interests in the region. Of course, I couldn’t simply stand by and let that happen, so I intervened and ordered a forceful takeover of the strategically important peninsula of Crimea—a territory with historical ties to Russia that our nation had long desired. It’s certainly no easy task to forcefully annex an entire province against another country’s will, so I just wanted to thank you—the government of the United States, the nations of western Europe, and really the entire world population as a whole—for being super cool about all of this.

Seriously, you guys have been amazing. All of you. I really appreciate it.

To be honest, I was really dreading a whole big fight over this thing. When you first condemned the seizure of Crimea as patently illegal and in breach of the Ukrainian constitution—which it absolutely was, by the way—I feared for the worst. But then everybody stopped short of doing anything to actually prevent what was essentially a state-sponsored landgrab, and I just thought, “Wow, these guys are a pretty laid-back and easygoing bunch!” It really was a huge load off when you let everything slide like that.

Believe me, I know it must have been hard to stand idly by and do nothing as a foreign military invaded one of your allies, or just sit back and watch while we set up a complete farce of a referendum—a referendum supervised by heavily armed members of the Russian military, mind you—and used it as grounds for backdoor annexation. It also couldn’t have been easy to keep your cool when we sent commandos to raid the Ukrainian naval headquarters in Crimea. But you didn’t really make much of a fuss over any of it, and I couldn’t be more grateful for that. It made my job way, way easier.

I totally owe you one, no question about that.

Now, of course I get that you in the international community had to issue some sort of response. After all, you had to at least look like you were trying to fight for the people of Ukraine as we rolled armed vehicles into their country, made it clear that any dissent would be punished, and essentially rendered an entire people totally and utterly powerless in the face of a bigger, stronger country’s national interests. I totally get that. But I’m just relieved that you decided on a response as harmless as humanly possible, with no real and tangible repercussions on myself or my government. You really have no idea how much stress that lifted off my shoulders. It was a real lifesaver.

I also understand that moving forward, you’ll feel pressure to call a lot of high-profile NATO meetings, make statements to the UN, suspend this summer’s G8 summit, that sort of thing. I also get that all that kind of stuff is just a formal procedure you have to follow, because really, at this point you’ve laid your cards on the table. So I just want to thank you ahead of time—honestly, from the bottom of my heart—for ensuring that I can just concentrate on doing whatever I want in any formerly Soviet region that is of geopolitical, military, or economic value to Russia without having to worry one iota about suffering any consequences. Thanks for making that 100-percent clear to me.

There is one thing I want to say though, and I feel a little silly admitting this, but there was actually a moment earlier when I did feel a little dread. For one unnerving second there, I thought you imposed sanctions on Russia’s broad national economy, but then I saw the sanctions were just directed at a few of my advisers and some bank I don’t care about. Boy, talk about a major relief!

Really, this whole thing has gone so smoothly that my only real regret is that I just wish I had known earlier that you guys were this mellow about hostile military takeovers. It makes me wonder what took me so long to get around to this.

But you know, I really shouldn’t have been surprised, given how cool you were with my longstanding record of handling opposition political groups or independent-minded journalists, all those gay rights protests that cropped up last year, or even that whole ordeal in 2008 when we tried to take over separatist regions of Georgia by force. Just knowing I’m free to do things my own way—that I can fully ignore any domestic or international laws and any basic principles of human rights—just takes away a ton of the stress involved in making these big decisions.

And, by the way, if you ever need me to play along and act like these little Crimea sanctions and rhetorical warnings are in the least bit threatening, or feign anger by instituting entry bans on U.S. lawmakers and officials, or issue a few sternly worded responses to the international community’s condemnations, I’m completely down with that. I get the back-and-forth charade we’re playing here—the one that says you’re actually considering some real action against me. Seriously, going along with that kind of ruse is the least I can do, given all you’ve done for me.

I just hope you’ll all continue being so nice and accommodating moving forward—especially with what I’ve got planned for the rest of Ukraine over the next few months.

Why Florida’s 13th District Special Election Is Still a Tossup

Roll Call

By Nathan L. Gonzales

 

After almost five months and more than $9 million in campaign spending, neither Democrat Alex Sink nor Republican David Jolly has a clear upper hand in the final hours before Tuesday’s special election in Florida’s 13th District.

Even though polling continues to show a neck-and-neck race, many Democrats are privately and cautiously confident that Sink will prevail, based on her performance with absentee ballots (compared to Democrats who have won the district in the past) and polling of the outstanding voters.

But, there is enough uncertainty to keep the Rothenberg Political Report/Roll Call rating of the race as a Tossup.

Over the last month, the polling in the race has been remarkably consistent, as it has had Sink and Jolly within the margin of error. And the polls have shown the undecided vote between 7 and 9 points. That is significant when the candidates are within a point or two of each other.

Polling has also shown libertarian candidate Lucas Overby receiving 6 percent to 7 percent of the vote. That is likely overstating his support in the district (he seems more likely to receive between three and four percent, according to operatives tracking the race), but it is unclear whether he is drawing disproportionately from Jolly or Sink in those polls.

There is one certainty in the race: the winning party will overplay the results, the losing party underplay it, and the lessons from the election will likely be somewhere in the middle.

Special elections can be bellwethers — except when they’re not. In 2008, Democrats won a trio of competitive special elections before gaining 21 more seats that November and adding to the party’s House majority. In May 2010, Democrats won a supposedly bellwether special election in Pennsylvania’s 12th District six months before losing 63 seats in the House.

If Democrats win, they will be emboldened to implement their defense against Republican attacks on the Affordable Care Act (fix, not repeal) into competitive races nationwide. If Republicans win, the long march against Obamacare will continue. For a closer look at the messaging battle, see Paul Kane’s piece from Pinellas County in The Washington Post.

Looking at the results from a different angle, whichever party loses on Tuesday will immediately blame their nominee. The backbiting against Jolly has already begun, courtesy of a recent Politico piece. But it’s not surprising, considering many GOP operatives didn’t want Jolly in the first place. They wanted state Rep. Kathleen Peters, who lost the primary.

Even though Republicans are defending the 13th District after GOP Rep. C.W. Bill Young’s death, it will be more difficult for Democrats to explain away a loss. As my colleague Stuart Rothenberg wrote in early January (“The Race Democrats Can’t Afford to Lose”), Democrats and Sink enjoyed most of the traditional measures of success in a race including higher name identification, better reputation and more money. A loss won’t stop Democrats from blaming Sink (as they did in the 2010 gubernatorial election) but it’s more difficult to swallow considering the party courted her and cleared the field for her.

Polls close at 7 p.m. EST. Remember that what actually happens in the race isn’t as important was what lessons party operatives learn about the race, because those lessons will help guide the parties’ strategies this cycle.

Small Businesses Support Increasing the Minimum Wage to $10.10

Greenberg Quinlan Rosner Research Opinion Poll for Small Business Majority 

March 6, 2014

Executive Summary

Small business owners are still recovering from the Great Recession and doing everything they can to fortify their businesses, and with them, the economy.  In communities across the country, it is the jobs small businesses provide and the consumers they serve that keep our recovery moving.  In order to grow and thrive, entrepreneurs need smart policies that help bolster their bottom lines and fuel the consumer demand that underpins economic success.  They believe increasing the federal minimum wage will help do this. 

According to a national scientific opinion poll conducted for Small Business Majority, small business owners agree policymakers should raise the federal minimum wage so low-paid workers and consumers have more money in their pockets.  In fact, 57% of small businesses support raising the minimum wage— up from the $7.25 an hour rate that took full effect in 2009— in three steps over two and a half years to $10.10 an hour and adjusting it annually to keep pace with the cost of living.  What’s more, 61% of small business owners in the retail/restaurant industries support the increase.  Small employers believe this would help boost customer demand at small businesses and grow the economy. 

A sweeping 82% already pay all of their employees more than the federal minimum wage, with only 18% paying one or more of their workers minimum wage. 

More than half of small business owners (52%) agree that increasing the minimum wage would not only help the economy, it would make low-income consumers more likely to spend money, driving up demand for small businesses’ goods and services.  In addition, 54% of respondents believe that increasing the minimum wage would help decrease pressure on taxpayer-financed government assistance that’s needed to make up for low wages, as it would help people afford basic necessities that might otherwise be out of their financial reach.

These small employers also believe it’s simply the right thing to do.  They don’t think it’s right that people working full time earn just $15,080 a year at the minimum wage, which is significantly lower than in the 1960s, adjusting for inflation.  Additionally, more than one-third (35%) say raising the minimum wage would help make their businesses more competitive because business competitors won’t be able to undercut them on labor costs. 

Increasing our federal minimum wage finds broad support among small business owners across a range of industries and political persuasions, showing small businesses do not view the issue through an ideological lens.  The respondents were predominately Republican–with 47% of small business owners identifying as Republican, 35% as Democrat and 18% as independent.  

Main Findings

The majority of small business owners support increasing the federal minimum wage to $10.10 per hour and adjusting it yearly to reflect the cost of living: 57% of small business owners support increasing the federal minimum wage of $7.25 in three stages over two and a half years to $10.10, and believe that it should be adjusted annually to keep pace with the cost of living.

The majority of small business owners in the retail/restaurant industries support increasing the minimum wage: 61% of small business owners in the retail/restaurant industries support increasing the federal minimum wage of $7.25 in three stages over two and a half years to $10.10, and believe that it should be adjusted annually to keep pace with the cost of living.

The vast majority of respondents pay all of their employees more than minimum wage: A sweeping 82% of small business owners surveyed do not pay any of their employees the federal minimum wage of $7.25.  Only 18% pay their employees the federal minimum wage of $7.25 an hour

More than half of entrepreneurs believe increasing the minimum wage will boost consumer demand for small businesses, helping them grow and hire: 52% of small business owners agree increasing the minimum wage would be good for small businesses, and that people will have a higher percentage of their income to spend on goods and services because low-wage earners tend to spend money at local businesses—which will be able to grow and hire new workers. More than a third (35%) say raising the minimum wage would help make their business more competitive because competitors won’t be able to undercut them on labor costs.

Small businesses agree raising minimum wage would decrease the pressure on taxpayer-financed government assistance to make up for low wages: 54% agree that increasing the minimum wage would allow people to afford basic necessities and decrease the pressure on taxpayer-financed government assistance to make up for the low wages paid by some employers, and say it’s not right that people working full time earn just $15,080 a year at the minimum wage— significantly lower than it was in the 1960s, adjusting for inflation.

Respondents lean Republican: 47% identified as Republican, 35% as Democrat and 18% as independent or other.

Small Businesses Support Increasing Minimum Wage to $10.10 an Hour

Scientific opinion polling reveals small business owners of all industries and political affiliations believe we should make significant adjustments to our federal minimum wage. A 57% majority support increasing the current federal minimum wage of $7.25 per hour in three steps over two and a half years to $10.10 per hour, and they also believe it should be adjusted annually to keep pace with inflation.

The majority of small business owners support raising the minimum wage to $10.10 per hour and adjusting it annually to keep pace with the cost of living.

Small business owners in the retail/restaurant industries also support increasing the minimum wage. Sixty-one percent of employers in the retail/restaurant industries support increasing the federal minimum wage of $7.25 in three stages over two and a half years to $10.10, and believe that it should be adjusted annually to keep pace with the cost of living. While some have argued that increasing the federal minimum wage would put an undue burden on small businesses because they can’t afford to pay their employees more, the vast majority of them already pay more than minimum wage. A staggering 82% of those polled pay all of their workers more than the minimum wage, while just 18% pay their employees the federal minimum wage of $7.25 an hour.

Most small business owners already pay their workers more than the minimum wage.

Entrepreneurs Believe Raising the Minimum Wage Will Benefit Small Businesses, Economy Polling revealed that small business owners’ support for increasing minimum wage may stem from several different things they believe about consumers’ role in our economy.  First off, small business owners recognize that increasing minimum wage can help boost consumer demand, which would be good for their companies and the economy.  More than half of small business owners (52%) agree with this statement:

“Increasing the minimum wage would be good for small businesses.  It means people will have a higher percentage of their income to spend on goods and services and it is proven that low-wage earners tend to spend money at local businesses who will be able to grow and hire new workers.”

What’s more, more than one-third (35%) say raising the minimum wage would help make their business more competitive because business competitors won’t be able to undercut them on labor costs.

Small business owners believe increasing the minimum wage is good for businesses and the economy.

Small business owners agree raising the minimum wage would help their business become more competitive.

Small businesses agree increasing the minimum wage would also benefit the economy by decreasing the pressure on taxpayer-financed government assistance to make up for low wages.  A 54% majority agrees that increasing the minimum wage would allow people to afford basic necessities and decrease the pressure on taxpayer-financed government assistance to make up for the low wages paid by some employers.  What’s more, they believe it’s not right that people working full time earn just $15,080 a year at the minimum wage, which is significantly lower than it was in the 1960s, adjusting for inflation.

Small business owners believe it’s not right for people working full time earn just $15,080 per year, and that increasing the minimum wage would decrease pressure on taxpayer-financed government assistance

Conclusion

Entrepreneurs understand the economic benefits raising the minimum wage can deliver, and they believe it will be good for business and the economy.  The vast majority of small business owners already pay all of their employees more than minimum wage, indicating that small businesses recognize the benefits of investing in higher wages for a more productive and stable workforce. On top of the fact that small businesses agree we need to raise the minimum wage to $10.10 per hour and move forward with yearly adjustments based on inflation, they also believe that doing so will positively impact small firms by providing consumers with more purchasing power.  More demand for small businesses’ goods and services is the driving force behind their growth, and if we can provide small firms with increased demand, they will be more likely to expand and create new jobs.

The Inflation Obsession

The New York Times

March 2, 2014

Paul Krugman

Recently the Federal Reserve released transcripts of its monetary policy meetings during the fateful year of 2008. And, boy, are they discouraging reading.

Partly that’s because Fed officials come across as essentially clueless about the gathering economic storm. But we knew that already. What’s really striking is the extent to which they were obsessed with the wrong thing. The economy was plunging, yet all many people at the Fed wanted to talk about was inflation.

Matthew O’Brien at The Atlantic has done the math. In August 2008 there were 322 mentions of inflation, versus only 28 of unemployment and 19 of systemic risks or crises. In the meeting on Sept. 16, 2008 — the day after Lehman fell! — there were 129 mentions of inflation versus 26 mentions of unemployment and only four of systemic risks or crises.

Historians of the Great Depression have long marveled at the folly of policy discussion at the time. For example, the Bank of England, faced with a devastating deflationary spiral, kept obsessing over the imagined threat of inflation. As the economist Ralph Hawtrey famously observed, “That was to cry ‘Fire, fire!’ in Noah’s flood.” But it turns out that modern monetary officials facing financial crisis were just as obsessed with the wrong thing as their predecessors three generations before.

And it wasn’t just a bad call in 2008. Much supposedly informed opinion has remained fixated on the supposed threat of rising prices despite being wrong again and again. If you spent the last five years watching CNBC, or reading the Wall Street Journal opinion pages, or for that matter listening to prominent conservative economists, you lived in a constant state of alarm over runaway inflation, which was coming any day now. It never did.

What accounts for inflation obsession? One answer is that obsessives failed to distinguish between underlying inflation and short-term fluctuations in the headline number, which are mainly driven by volatile energy and food prices. Gasoline prices, in particular, strongly influence inflation in any given year, and dire warnings are heard whenever prices rise at the pump; yet such blips say nothing at all about future inflation.

They also failed to understand that printing money in a depressed economy isn’t inflationary. I could have told them that, and in fact I did. But maybe there was some excuse for not grasping this point in 2008 or early 2009.

The point, however, is that inflation obsession has persisted, year after year, even as events have refuted its supposed justifications. And this tells us that something more than bad analysis is at work. At a fundamental level, it’s political.

This is fairly obvious if you look at who the inflation obsessives are. While a few conservatives believe that the Fed should be doing more, not less, they have little if any real influence. The overall picture is that most conservatives are inflation obsessives, and nearly all inflation obsessives are conservative.

Why is this the case? In part it reflects the belief that the government should never seek to mitigate economic pain, because the private sector always knows best. Back in the 1930s, Austrian economists like Friedrich Hayek and Joseph Schumpeter inveighed against any effort to fight the depression with easy money; to do so, warned Schumpeter, would be to leave “the work of depressions undone.” Modern conservatives are generally less open about the harshness of their view, but it’s pretty much the same.

The flip side of this anti-government attitude is the conviction that any attempt to boost the economy, whether fiscal or monetary, must produce disastrous results — Zimbabwe, here we come! And this conviction is so strong that it persists no matter how wrong it has been, year after year.

Finally, all this ties in with a predilection for acting tough and inflicting punishment whatever the economic conditions. The British journalist William Keegan once described this as “sado-monetarism,” and it’s very much alive today.

Does any of this matter? It’s true that the Fed hasn’t surrendered to the sado-monetarists. Notably, it didn’t panic in 2011, when another blip in gasoline prices briefly raised the headline rate of inflation, and Republicans began inveighing against the “debasement” of the dollar.

But I’d argue that the clamor from inflation obsessives has intimidated the Fed, which might otherwise have done more. And it has also been part of a general climate of opposition to anything that might address our continuing jobs crisis.

As I suggested, we used to marvel at the wrongheadedness of policy makers during the Great Depression. But when the Great Recession struck, and we were given a chance to do better, we ended up repeating all the same mistakes.