The Supreme Court will hear arguments on Tuesday in a case challenging an Ohio law that criminalizes lies in campaign ads — but don't misunderstand this as another step on the court's path toward unlocking campaign spending completely. First, that's not the case at hand. And, second, the question of truth and falsehood in campaign ads is surprisingly complex, and the law at issue is not the bulwark against lies that it might seem.
The case, Susan B. Anthony List v. Driehaus, focuses on a 2010 House race in Ohio. Democrat Steve Driehaus was running for reelection, and the anti-abortion group Susan B. Anthony List drafted a billboard charging Driehaus with supporting taxpayer-funded abortion because he supported Obamacare. The Affordable Care Act doesn't allow federal money to be used for abortion, so Driehaus filed a complaint with the Ohio Elections Commission. It ended up not making a difference; the billboards never went up and Driehaus lost anyway. But the case, after fighting its way through the lower courts, lived on.
What the court is deciding is very narrow, as SCOTUSBlog articulates: "how and when may a court case go forward against a law that aims at limiting expression protected by the First Amendment." In other words, the court will rule whether or not SBA List can challenge the law. If it can, lower courts will consider the claims at stake.
At first blush, given what we know about the court of Chief Justice John Roberts, this seems like an easy one to call. The Roberts Court will open the Ohio law to challenges because it constrains the First Amendment, and people and businesses newly-unleashed to buy campaign ads will eventually be able to post what they want without fear of recrimination. It's of a piece with the existing perception of the court, one which even former Justice John Paul Stevens wrote a book to oppose. (He proposes six new constitutional amendments, including one reeling in campaign spending.) But, in the big picture, this case is by no means that simple.
It seems very likely that SBA List believes that Obamacare allows the federal government to spend money on abortions. The Obama White House and other analysis disagrees, but the debate over whether or not that is the case was taken up in the House as recently as January. And if SBA List believes it to be true, is it a lie? Is it a falsehood worthy of monetary sanctions?
This is neither a trivial nor an academic exercise. SBA List's point, in part, is that the government should not be in the business of evaluating what is true and what is false in politics. There's a lot of validity to that point. Imagine if a secretary of state appointed people to the Elections Commission who decided an obvious gray area was instead black-and-white. In practice, commissions and candidates recognize the nuance in political claims, but that's largely a function of custom.
When I worked in politics in the Silicon Valley, there was an informal ethics board that reviewed campaign communication and weighed in on behalf of candidates, censuring campaigns as needed. It quickly became a political tool, with campaigns seeking a newspaper headline stating that their opponents had been criticized for unethical campaigning. The campaign on which I worked filed a complaint against our opponent which was upheld. The opponent filed one in response; it was upheld, too. However sincere, the process itself became a political tool. What Driehaus wanted was to block billboards with untrue information. Other candidates certainly file complaints simply to be able to say complaints were filed.
However you feel about the Supreme Court's embrace of campaign spending, it's hard to see how imposing sanctions against falsehoods — flagrant or not — improves the electoral process. That's not what the court is considering at this point, but the case could return if allowed to proceed through the lower courts. And if it does, the Roberts Court could understandably reject the idea.