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I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Wednesday, December 27, 2006

Incentivizing Honesty in Politics

By Anonymous Liberal

By Anonymous Liberal--In my post yesterday, I highlighted the stark difference between the rigid standards that apply to commercial advertising in this country and the ‘anything goes’ nature of political advertising. My primary point was that human nature doesn’t suddenly change when the conversation shifts from shopping to politics, and therefore it’s bizarre that everyone seems to assume that “voters” possess the sort of truth-detection skills that we all know “consumers” do not. Consumers and voters are, after all, the same people, and advertisements are advertisements, regardless of whether they’re selling laxatives or representatives.

Indeed, the robust protections provided to consumers may actually make the problem of false political advertising more acute. As a commenter over at Digby’s points out, many people have internalized the prohibition against false-advertising and simply assume that it applies to political ads as well. I can’t tell you how many times I’ve heard people say things like “that ad must be at least technically true or they wouldn’t be allowed to air it.”

We live in an era where the outcomes of elections often hinge on the effectiveness of political advertising. For reasons I discussed in my previous post, however, it is simply not feasible (or advisable) to regulate the truthfulness of political advertising in the same way we regulate the truthfulness of commercial advertising.

But that doesn’t mean we have to resign ourselves to a system that actually encourages deceptive political advertising.

In the realm of commercial speech, we incentivize honesty by punishing dishonesty. Those who mislead consumers face the prospect of stiff fines, high damage awards, injunctions, and even imprisonment depending on the circumstances. It’s a very stick-heavy approach, which is why it raises so many First Amendment concerns when applied to political speech. But good behavior can be encouraged through the use carrots as well as sticks. And therein lies the key to avoiding First Amendment objections: focus less on punishing dishonesty and more on rewarding honesty.

A change of emphasis is also needed. Because consumer protection laws are primarily aimed at businesses and those driven by a desire to make money, they understandably focus on combating dishonestly through the use of economic disincentives. The idea is to create a system where your economic interests are better served by being honest than being deceptive.

But politicians and political parties are driven by a different bottom line. In order to tailor this approach to the political realm, incentives and disincentives have to be political in nature. We need to try to create a system where a candidate’s political interests will be better served by honesty than deception.

The most effective tool for aligning incentives in this way is the media, both new and old. To the extent journalists and bloggers can generate political blowback when a politician lies, politicians will be discouraged from doing so. Unfortunately, our emasculated press corps tends to do the exact opposite. In order to avoid accusations of bias, journalists adhere to a painfully formulaic "dueling narrative" style of journalism which actually encourages dishonesty by giving lies equally billing to the truth. Blogs are a welcome counterweight in this regard and do have some ability to influence media narratives and expose lies and deception. I’m optimistic that as the medium of blogging continues to mature and evolve, blogs will play an increasingly important role in creating the sort of incentive structure necessary to encourage more honest politics.

That said, I believe it will take more than just the media (even the new media) to create the structural incentives necessary to significantly improve the situation. We really need to start thinking outside the box on this issue. We need to think of ways in which legislation and private initiatives can create the sort of incentives necessary to influence the basic political calculus.

What am I talking about? Well, for instance, you’re probably familiar with the provision of the McCain-Feingold bill that requires those sponsoring political ads to indicate who paid for them (“My name is Bob Smith and I approved this message.”) The idea behind the provision was that it would discourage truly sleazy and dishonest ads by making politicians embarrassed to be associated with them. I think the authors of the bill failed to appreciate just how little shame many politicians have, but I’m more concerned with the structure of the provision than the provision itself. The important thing is that the Supreme Court held that this disclosure requirement does not violate the First Amendment. That’s important, because it opens the door to a number of other creative ways of discouraging deceptive politics.

For instance, suppose a state were to pass a law creating some sort of body—perhaps consisting of retired judges—which was empowered to review the truthfulness of political ads. It could be called the “Election Commission” or something similar. To avoid First Amendment concerns, there would be no requirement that ads be submitted to the Commission for review, but there would be a requirement that all ads disclose prominently, ala McCain-Feingold, whether or not the ad has been submitted and approved by the Election Commission (i.e. “this ad has been reviewed for truthfulness by the Election Commission” or “this ad has not been submitted to the Election Commission”).

The Commission would be instructed by law to withhold its blessing of ads which are either false or materially misleading (the same standards that govern commercial advertising). Those seeking approval of ads would submit them, along with an affidavit attesting to and supporting its truthfulness. Preliminary approval could be granted very quickly, within hours. If anyone wished to question the approval, they could submit counter-evidence, which if found to be persuasive, would result in the withdrawal of the Commission’s approval.

While politicians and interest groups would be under no obligation to submit their ads for review, there would be a strong incentive to do so. Those who wish to be taken seriously and viewed as honest would readily submit their ads to the Commission. Those who choose not to submit their ads to the Commission would be free to run them anyway, but would likely pay some political price for doing so. The ads would be looked upon much more skeptically by the public and opposing politicians would likely try to score political points by pointing to the candidate’s unwillingness to seek Commission approval (“What is my opponent so afraid of?”).

Would this sort of legislation really work? It’s hard to know. I’m sure the insightful commenters at this site will point out any number of potential problems with such a plan, perhaps some of them fatal. But I hope this example at least illustrates the sort of proposals I have in mind. We need to think of ways to establish structural incentives that reward honesty and discourage deception. We need to work toward creating a system where politicians see it as being in their best political interest to avoid making false and misleading claims.

I realize that’s an enormously ambitious goal, but even a marginal improvement in the current incentive structure would go a long way toward improving the quality of political discourse in this country. And one of the greatest aspects of our federalist system is that we have 50 laboratories in which to experiment with these kinds of proposals; all it takes is a good idea and a state willing to try it. So I ask you to put aside your cynicism for a moment and really think long and hard about this issue. There have to be creative ways we can come up with to incentivize honesty in politics—even if just a little bit--without running afoul of the First Amendment. That’s my challenge to you (and to myself).

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