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Why Illegal False Political Statements Are Rarely Punished

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by Publius
Posted November 01, 2012, 4:10 PM

According to the Cleveland Plain-Dealer:

In Ohio, it's a crime to make false statements about your opponent in an election campaign.

Still, the 2012 political season has been filled with lies, according to fact-checking organizations, including The Plain Dealer's PolitiFact Ohio. But those telling the tall tales probably will face few consequences.

From the race for the White House on down to local legislative races across America, speaking in half-truths and twisting your opponent's record seems to be the norm rather than the exception, government ethics experts agree.

"It happens all the time, but certainly during the campaign season it is much more evident," said Judy Nadler, senior fellow in government ethics at the Markkula Center for Applied Ethics at Santa Clara University in California. "The problem is that this leads to an eroding of people's confidence in government. People throw up their hands and say, 'I don't believe any of them,' and it decreases voter registration and turnout."

Said Robert Smith, a political science professor at Kennesaw State University and leading researcher on ethics laws and commissions: "It has become more prevalent and more characteristic of political campaigns to play footloose and fancy-free with the facts."

Ohio is one of 20 states with laws against making false or misleading statements in political campaigns. A violation is a misdemeanor with a penalty of up to six months in jail and a $5,000 fine.

But a prosecutor can't file charges without a complaint being filed with the Ohio Elections Commission, a seven-member bipartisan board that rules on election complaints. And in the last decade, the commission has not referred a single case involving a false statement to a county prosecutor.

Philip Richter, executive director of the commission, could recall only four such referrals dating back to when he joined the commission in the mid-1990s.

"We don't just want to do it willy-nilly," Richter said. "Prosecutors have a very difficult job and should be prosecuting criminals, not chasing after false statements in campaign materials in our opinion, unless it's particularly egregious."

But why have a law on the books if it's not going to be enforced?

"We are enforcing it, it's just at an administrative level," Richter said. "We are supposed to make that kind of a finding and we do."

While most observers see lying in campaigns on the upswing, Richter said that complaints about alleged campaign falsehoods are actually down this year compared to previous years with just 38, compared to as many as 98 in 2010.

Records supplied by Richter show the commission has heard 176 complaints involving allegations of false and misleading statements in the past three years and found violations in 14 cases -- which is 8 percent of the time.

But the punishments barely redden a wrist. In 13 of the 14 cases, the commission just let the violation stand as the only penalty in the matter. The only fine levied in the past three years came in a 2010 case against a township trustee candidate whose complaint the board considered to be "frivolous" and rang up a $5,775 fine.

In all of 2012, the commission issued only two findings of violations involving false and misleading statements -- both involving candidates who implied they already held the office that they were running for this election.

Judicial candidates, however, face another layer of scrutiny. Charges can be filed with the Ohio Supreme Court's disciplinary arm, known as the Board of Commissioners on Grievances and Discipline. Penalties can be serious, with heavy fines and the power to yank a candidate's law license.

 

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