Unreliable Biographers: Addressing the Lies of US Electoral Candidates
In the aftermath of his election to the US House of Representatives for New York’s third congressional district, it was uncovered that George Santos had fabricated almost the entirety of his professional and personal background. Among other things, he claimed he owned 13 properties, attended Baruch University, worked at both Goldman Sachs and Citibank, and stated that his mother had been a victim of the 9/11 terrorist attacks.[2] In reality, he owned no property,[3] admitted he “didn’t graduate from any institution of higher learning,”[4] did not work for any period at Goldman Sachs or Citibank, and his mother was in Brazil in 2001.[5] Santos himself confessed to being “a terrible liar,”[6] and though he denies it, these fabrications were likely invented to garner additional votes, making him seem more qualified for political office than he actually was.[7]
Many would feel that Santos’ purposeful lying to voters about his qualifications constitutes an illegal activity. However, in New York, and much of the wider US, such fabrications do not in and of themselves constitute a crime, as they are protected under free speech. This stance has consequently done little to deter countless American politicians from lying about their background and qualifications for the sake of garnering electoral success. The results of this fraudulent rhetoric would inevitably mean the election of unqualified politicians who, due to their lack of expertise, would not be able to make informed decisions. This culminates in the implementation of sub-optimal policy that would be harmful to the American public. In addition, the election of such politicians means that candidates can elicit votes from the public on entirely false grounds. Thus, the US should strongly consider adopting regulation that criminalizes the intentional fabrication of a political candidate’s background and qualifications. Such legislation already exists in several other Western democratic nations — such as France — and can feasibly be adopted in the US without comprising the First Amendment right of free speech.
New York does not criminalize political lying: a stance shared by a large and growing number of states in the US, following the United States vs. Alvarez (2012) Supreme Court decision.[8] While there do exist laws in New York that make it a criminal offense for a politician to lie, these mostly refer to fabrications around campaign financing reports — New York State Election Law § 14-126.[9] As a result, George Santos was not directly charged for blatantly fabricating his qualifications and background.[10] This absence of regulation when it comes to political lying outside of finances is not restricted to New York, but is indicative of most US states’ policies. Only 16 states have instituted laws against some form of political lying, and even this number is rapidly diminishing; Ohio, Massachusetts and Minnesota have all recently struck down laws criminalizing false campaign speeches.[11] This decline is in large part due to the conclusion of United States vs. Alvarez.[12] Mr. Alvarez, an elected member of a water-district board in California, had violated the 2005 Stolen Valor Act, by claiming that he served in the military for 20 years, when he, in fact, did not. The Supreme Court sided with Mr. Alvarez, stating that the Stolen Valor Act was unconstitutional, as Mr. Alvarez’s fabrications were protected under freedom of speech.[13] It was additionally determined that an interest in truthful discourse did not justify a censorship on speech “absent any evidence that the speech was used to gain a material advantage”[14] Thus, a conclusion was reached. To uphold the Stolen Valor Act, or to punish similar forms of political lying, the government must be given “broad censorial power unprecedented...in our constitutional tradition.”[15] Though Mr. Alvarez told these lies after he was elected, and the Supreme Court has remained quiet regarding political lying on the campaign trail, the 2012 ruling was subsequently cited by appellate courts in Massachusetts, Ohio and Minnesota when they removed their laws against political lying in campaign speeches.[16]
Dominant US legal thought contends it is the responsibility of the individual to determine whether a political candidate or politician is lying, yet this approach is insufficient. The logic follows that inquiries around whether a politician is lying are “political question[s]… subject to people making decisions though the election.”[17] In other words, lawmakers feel it is up to the individual voter to determine for themselves what is and is not a fabrication, and to vote accordingly. It is not the responsibility of the government to determine it for them. The state of Massachusetts attempted to define a more specific solution, arguing that counter-speeches by political candidates was the best method to address political fabrication rather than criminal prosecution.[18] Regardless, neither of these approaches have achieved much success, as seen by the multitude of politicians — other than Santos — who have fabricated aspects of their background and qualification when running for political office. For instance, Madison Cawthorn had lied during his 2020 run for the North Carolina 11th congressional district. It was uncovered that he did not attend a Naval Academy due to a car accident that left him partially paralyzed; in reality, he had been rejected from the Academy prior to the accident.[19] In another instance, it was uncovered that Senator Marco Rubio had lied in his 2010 Senatorial campaign, when he claimed that his parents fled Cuba as a result of the Castro regime. In reality, they immigrated to the US in 1956, 3 years before the Castro takeover.[20] Finally, during his 2010 and 2016 senatorial campaigns, Mark Kirk made several false statements about his military service, including that he served in the 1991 Gulf War and had once commanded the Pentagon War Room.[21] Mr. Kirk later admitted that he fabricated these claims in an interview with the Chicago Tribune.[22] If such political lying continues, it will likely result in the election of underqualified candidates who are comfortable with lying to their constituents in order to attain political office. More troublingly, it would allow for politicians to garner votes on a false basis.
In order to address the issues brought on by political lying, the US should consider instituting legislation that criminalizes the intentional fabrication of a political candidate’s background, for the sake of influencing voters. However, the implementation of such a law in the US faces two major hurdles. The first is that some will argue that such a law would constitute censorship of political discourse by the government. This would, in turn, violate the First Amendment right of freedom of speech. However, the Supreme Court historically acknowledges that freedom of speech does not apply to fraud: the deliberate misrepresentation of fact for the purpose of depriving others of a valuable possession.[23] I would argue that a politician deliberately lying about their background and qualification for the sake of garnering votes self-evidently constitutes fraud. Thus, its censorship would not violate the First Amendment. In addition, similar policies coexist with freedom of speech in other Western democratic nations. For instance, Article L97 of the French Electoral Code makes it a criminal offense for a politician to lie about their qualification in order to elicit votes.[24]
The second hurdle to the proposed legislation is that many will be hesitant at its implementation, as it may be abused for political expediency. For instance, an attorney general of one party may utilize the law in order to undermine and disrupt the campaign of a politician from an opposing party, while refraining from doing so when a member of his own party breaks the law. This is a feasible possibility due to the broadness of the law — which means it can be deployed often — and the fact that it deals with subjective criteria which are difficult to discern, such as intention and motive. Abusing the law for political advantage is indeed a real concern, and I would therefore recommend that the law only deal with objective fabrications, created partially or wholly for the intention of making a politician more electable, and which cannot be reasonably classified as being unintentional. An example of this would be Santos' claim that he went to Baruch University, a clear lie, which he knowingly expressed as a lie, and which was said — at least partially — in order to make him appear more qualified and electable. It is likely the case that with the high bar of evidence required for prosecution — as well as the need to demonstrate the intention of the accused — the proposed legislation will rarely be utilized. Nonetheless, I maintain it still has value by creating a ceiling when it comes to political lying, preventing candidates from making the most egregious fabrications which ultimately undermine the election process and leads to the election of unqualified candidates.
Critics of the legislation will argue that it is not the place of the government to regulate political lying, and it is the responsibility of political parties to deter and punish candidates who fabricate their qualifications. This initially seems a reliable method, since these parties have the resources to undertake background checks, and it is in their interest to reprimand candidates who could compromise the reputation of the party. However, in reality, using political parties to regulate political lying is an unreliable method. George Santos ran for the Republican Party twice in both 2020 and 2022, yet it was only after his victory in 2022 that the Republican Party became fully aware of the extent of his fabrications.[25] Even after Republicans became aware of this, much of the party remains hesitant at removing Santos, as it would jeopardize the party’s slim majority in the House.[26] From this, it is clear that political parties are not a reliable means by which to deter candidates from lying about their qualifications.
Others will contend that it is the responsibility of the individual to critically determine for themselves whether a candidate is lying, and the responsibility of the media to inform the public. Yet as seen with the case of Santos, the media can fail to pay attention to a candidate’s background until after they are elected. In addition, it seems like an extremely unreasonable request that the public ought to uncover whether a political candidate is lying about their background. How were the residents of New York’s Third District supposed to know that Santos was lying when he said he had worked at Goldman Sachs?
Overall, the US government should seriously consider adopting legislation that criminalizes the intentional fabrication of one’s background and qualification by politicians and political candidates. This is due to the fact that the practice is currently widespread in the US, and current methods of preventing it are evidently not effective. While critics may argue that this constitutes a violation of the First Amendment, I would counter that these intentional fabrications are a facet of fraud, which would mean they are not protected under free speech. Further evidence that the law does not undermine free speech can be found in the fact that similar legislation exists in other Western democratic nations, where citizens have a right to free speech. In addition, the possible abuse of this proposed legislation for political gain is undermined by the high barrier of evidence required to prosecute.
References
[1] United States v. Alvarez, 567 U.S. 709 (2012).
[2] Linda Givetash, ‘GOP congressional candidate mugged in New York City, police say’ The Independent, 12 March 2022, https://www.independent.co.uk/news/world/americas/us-politics/george-santos-mugged-nypd-report-b2254098.html.
[3] D. Hunter Schwarz, ‘With campaign lies exposed, Santos could face legal consequences’ Yahoo News UK, 4 November 2022, https://uk.news.yahoo.com/with-campaign-lies-exposed-santos-could-face-legal-consequences-204951195.html.
[4] Jon Levine and Ebony Bowden, ‘Rep-elect George Santos admits fabricating key details of his bio’ New York Post, 26 December 2022, https://nypost.com/2022/12/26/rep-elect-george-santos-admits-fabricating-key-details-of-his-bio/.
[5] Matt Stieb, ‘The Everything Guide to George Santos’s Lies’ New York Magazine, 12 March 2023, https://nymag.com/intelligencer/2023/03/the-everything-guide-to-george-santoss-lies.html.
[6] Morgan, Piers (20th of February 2023). Interview with George Santos [video]. YouTube. https://www.youtube.com/watch?v=I7p-6HHUgl4.
[7] Ibid.
[8] United States v. Alvarez, 567 U.S. 709 (2012).
[9] ‘New York State Election Law - ELN § 14-126. False statements’ New York State Senate, accessed on 12 March 2023, https://www.nysenate.gov/legislation/laws/ELN/14-126.
[10] The Economist, ‘Could congressman George Santos be prosecuted for lying to voters?’ The Economist Explains, 20 January 2023, https://www.economist.com/the-economist-explains/2023/01/20/could-congressman-george-santos-be-prosecuted-for-lying-to-voters.
[11] Ibid.
[12] United States v. Alvarez, 567 U.S. 709 (2012).
[13] "United States v. Alverez’ Oyez, accessed on 12 March 2023, https://www.oyez.org/cases/2011/11-210.
[14] The Economist, ‘Could congressman George Santos be prosecuted for lying to voters?’ The Economist Explains, 20 January 2023, https://www.economist.com/the-economist-explains/2023/01/20/could-congressman-george-santos-be-prosecuted-for-lying-to-voters.
[16] The Economist, ‘Could congressman George Santos be prosecuted for lying to voters?’ The Economist Explains, 20 January 2023, https://www.economist.com/the-economist-explains/2023/01/20/could-congressman-george-santos-be-prosecuted-for-lying-to-voters.
[17] Sophia Chang, ‘George Santos Lied To Voters. So What Are The Potential Consequences?’ Gothamist, 10 March 2023, https://gothamist.com/news/george-santos-lied-to-voters-so-what-are-the-potential-consequences.
[18] The Economist, ‘Could congressman George Santos be prosecuted for lying to voters?’ The Economist Explains, 20 January 2023, https://www.economist.com/the-economist-explains/2023/01/20/could-congressman-george-santos-be-prosecuted-for-lying-to-voters.
[19] Clarissa Donnelly-DeRoven, ‘Madison Cawthorn's claim about Naval Academy creates 'false impression’’ Citizen Times, 12 August 2020, https://eu.citizen-times.com/story/news/local/2020/08/12/madison-cawthorns-claim-naval-academy-creates-false-impression/3350634001/.
[20] Luke Broadwater, ‘Why Politicians Lie on Their Résumés, and How George Santos Got Caught,’ The New York Times, 28 December 2022, https://www.nytimes.com/2022/12/28/us/politics/george-santos-resume-lies-politicians.html.
[21] Ibid.
[22] John Chase and Rick Pearson, ‘Kirk admits to more misstatements about military record’ Chicago Tribune, 3 June 2010, https://www.chicagotribune.com/nation-world/ct-xpm-2010-06-03-ct-met-mark-kirk-military-record-060420100603-story.html.
[23] Encyclopedia Britannica, "First Amendment: Permissible Restrictions on Expression," Encyclopedia Britannica, last modified January 26, 2022, https://www.britannica.com/topic/First-Amendment/Permissible-restrictions-on-expression.
[24] French Electoral Code, Article L97, https://www.legifrance.gouv.fr/codes/article_lc/LEGIARTI000006353232.
[25] David Goodman and Jesse McKinley, ‘Lies on Résumés Are a Known Hazard for Politicians. But Will Voters Care?’ The New York Times, January 13, 2023, https://www.nytimes.com/2023/01/13/nyregion/george-santos-republicans-lies.html.
[26] City & State New York. ‘Lying isn't a crime, so will George Santos face any consequences?’ December 28, 2022. Accessed March 15, 2023. https://www.cityandstateny.com/politics/2022/12/lying-isnt-crime-so-will-george-santos-face-any-consequences/381343/.