Think of it as Steve Driehaus’s finest public service.
You remember Steve: He’s the Democrat who represented Ohio’s 1st Congressional District — until he voted for ObamaCare, that is.
During his 2010 bid for re-election, the Susan B. Anthony List accused Driehaus of voting for taxpayer-funded abortion because of his ObamaCare vote. Driehaus responded by filing a criminal complaint under an Ohio law that criminalizes “false statements” against a candidate. Then, after Ohio’s voters gave him the old heave-ho, Driehaus sued the Susan B. Anthony List on the grounds it had deprived him of his “livelihood” as a congressman.
The whole mess is headed for the Supreme Court, which will hear arguments April 22.
Now, a politician who sues on the grounds his election defeat caused him “injury in connection with his trade or occupation” is likely to be written off as a crank. And there’s no doubting the sorehead factor here.
Still, if the Good Book is right that ye shall know them by their fruits, perhaps we ought to be thanking this man. However inadvertently, Steve Driehaus has inspired some incredible achievements.
The first is to bring together people who are seldom in the same room, much less on the same side of a Supreme Court argument. When was the last time you saw the American Civil Liberties Union siding with Citizens United (yes, that Citizens United)? And these are just two of the 21 highly diverse organizations that have filed amicus briefs supporting the Susan B. Anthony List’s bid to get Ohio’s law struck down as an outrageous restriction on free speech.
But wait: It gets better.
Because among these amicus briefs is one written for the libertarian Cato Institute by P.J. O’Rourke, author and one-time editor of National Lampoon. It’s almost worth having this bad law just to get this brief, a masterpiece that underscores the serious contribution satire brings to politics.
Cato starts out strong. In the introduction, it includes “Read my lips: no new taxes!” and “I did not have sexual relations with that woman” as evidence that political claims and the mockery they invite (“whether true, mostly true, mostly not true, or entirely fantastic”) are “cornerstones of American democracy.”
At issue, says Cato, is “truthiness” — “truths” asserted “from the gut,” often “without regard to evidence or logic.” These include claims that “President Obama was born in Kenya” or 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.”
Laws like Ohio’s, it points out, “do not replace truthiness, satire, and snark with high-minded ideas and ‘just the facts.’ ” Instead, they chill debate and “turn commonplace jibber-jabber into a protracted legal dispute.”
It goes on to question whether anyone, let alone the Ohio Elections Commission, can determine truth: “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.’ ”
In like manner, it dispatches the contention at the heart of the Driehaus argument in a footnote referencing the Supreme Court’s own decision upholding the individual mandate: “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 health-care law seems to change daily, but it certainly isn’t as truthy as calling a mandate a tax.”
Cato’s argues we don’t need unelected government commissions to call out falsehoods. There are plenty of players willing to do that on their own. “And if this court isn’t yet convinced of this point,” reads the brief, “amici have but two words more on the subject: Anthony Weiner.”
All in all, it’s a call for a robust give and take in our political debate. Read the full argument yourself, at the Cato Institute or Susan B. Anthony List sites.
And don’t be so hard on Steve Driehaus. In the end, it is precisely because he was such a sore loser that we now see so many welcome developments: libertarians, liberal civil libertarians and conservatives united in common cause, the prospect of a big victory for the First Amendment in our highest court — and a highly entertaining reminder that, as P.J. O’Rourke and the Cato Institute conclude, “criminalizing political speech is no laughing matter.”
