Supreme Court Hears Case on Government Asserting Power to Decide What the Political Truth Is, and There's Nothing At All Scary About That

Maybe one of the most important cases in a long time.

Rep. Steve Driehaus voted for Obamacare. The Susan B. Anthony List wanted to put up billboards that said, “Shame on Steve Driehaus! Driehaus voted FOR taxpayer-funded abortion," and ran a similar radio campaign.

The billboard was never put up, because Dreihaus had threatened to sue -- not the SBA List, but the company managing the billboard.

Dreihaus claimed the message was false, and Ohio forbids "false" claims about a politicians' voting record.

The Ohio Elections Commission found, in a preliminary vote, that the message was indeed "false," but ultimately a full prosecution never went forward, because Dreihaus was defeated for reelection and the point became moot.

Note that Dreihaus claims that this message was "false" because he claimed refuge in Obama's completely-fake claim that Obamacare would not mandate abortion coverage by employers who were conscious objectors to the practice.

We now know that Dreihaus' claim was in fact the false one -- Obama's alleged guarantee on this score was worth as much as his claim that if you like your doctor, you can keep your doctor.

And yet here was -- is -- a government organization purporting to declare the truth to be false and a falsehood to be true, chilling citizens' right to speak the truth.

A federal judge dismissed the case in such a way that made it impossible, essentially, to challenge Ohio's law in advance of an actual prosecution. Apparently they didn't consider that threats of prosecution have a chilling effect, and that the factual record in this case includes, in fact, a real case of a citizen censoring himself for fear of prosecuction.

Consider, for a moment, how dangerous this is. In this case, you have Dreihaus making a claim which is supported by the government -- a claim which is false. And you have citizens making a claim which is disfavored by the government -- their claim being true.

Dreihaus wished to rely on the president's promise that Obamacare would never be interpreted this way; SBA List looked at these same facts and came to a contrary conclusion -- that Dreihaus was, no matter what he or Obama claimed, actually voting for the proposition that the government should mandate that employers provide birth control coverage to employees (and some of those can be characterized as abortifacients) and even coverage for abortion, no matter what the employers' honestly-felt religious or philosophical beliefs on the matter.

Dreihaus had the whole of the government on his side, and surely, a majority of the government bureaucracy, which we are lately discovering to our chagrin has its own political agenda and is not shy about promoting that agenda in their day-jobs.

But government wishes the power to say what is true and what is false -- even on hotly disputed points, where people are arguing, basically, whether a promise will be observed in the future. Something that can't actually be determined in the present.

And, as events would have it, it turned out the SBA was right.

But the fact that the SBA was right shouldn't control the issue here. Rather, it should illustrate how dangerous it is to have agents of the government deciding what is True and what is False on behalf of citizens, with prosecutions and other legal consequences flowing from their decisions.

George Will discusses the case here.

Driehaus says insurance companies must collect a “separate payment” from enrollees and segregate this money from federal funds. The SBA List says money is fungible, so this accounting sleight-of-hand changes nothing.

Yes, and they're right.

...

The Ohio Elections Commission has pondered the truth or falsity of saying that a school board “turned control of the district over to the union,” and that a city councilor had “a habit of telling voters one thing, then doing another.” Fortunately, the Supreme Court, citing George Orwell’s 1984, has held that even false statements receive First Amendment protection: “Our constitutional tradition stands against the idea that we need Oceania’s Ministry of Truth.”

This case, which comes from Cincinnati, where the regional IRS office was especially active in suppressing the political speech of conservative groups, involves the intersection of two ominous developments. One is the inevitable, and inevitably abrasive, government intrusions into sensitive moral issues that come with government’s comprehensive and minute regulation of health care with taxes, mandates, and other coercions. The Supreme Court will soon rule on one such controversy, the ACA requirement that employer-provided health-care plans must cover the cost of abortifacients. The other development is government’s growing attempts to regulate political speech, as illustrated by the Obama administration’s unapologetic politicization of the IRS to target conservative groups.

These developments are not coincidental. Government’s increasing reach and pretensions necessarily become increasingly indiscriminate.

There's a politico-economic theory with a very anodyne name that greatly undersells the theory itself: Public choice theory.

The standard way of thinking about political outcomes before public choice theory was to imagine the government as a disinterested referee, a neutral judge, hearing this or that claim from this or that constituency.

Public Choice Theory posits instead that the government itself -- its bureaucrats, its politicians -- is in fact an interested party with its own economic and political agenda for the country, and makes decisions on that basis, just like anyone else.

This is certainly the correct theory of government behavior.

What the hell is the government doing claiming to have the power to use force and deprivation of liberty in deciding political disputes in which the government itself has an unacknowledged selfish interest ?

It's critical that this ugly law be voided as unconstitutional. Otherwise, the progressives have their foot in the door for deciding what is True on behalf of the country, with prosecutors and cops and wardens as their enforcement agents.

posted by Ace at 02:28 PM

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