Ethics commission director questions constitutionality of LePage’s campaign speech lie detector proposal

Posted March 26, 2014, at 5:23 p.m.

AUGUSTA, Maine — Gov. Paul LePage’s proposal to use the Maine Ethics Commission as a campaign speech fact-checker encountered resistance on constitutional grounds Wednesday when it was introduced to the Legislature.

LD 1834 was proposed by LePage and sponsored by Sen. Doug Thomas, R-Ripley, earlier this month. It would require the Ethics Commission, which has a primary responsibility to oversee campaign finance laws, to respond to complaints made in gubernatorial, House or Senate campaigns by declaring whether the statements are false.

Thomas said he initially viewed the bill as a “waste of time” but then decided that having an outlet to debunk or confirm campaign statements could help the election process in Maine.

“There should be a mechanism to at least shame those who are behind some of the more outrageous statements, and that’s really all that is being asked for in this bill,” said Thomas. “I know some of you are thinking ‘we don’t have the time or the money to look into every untrue statement made in political campaigns.’ That’s true, but if there’s a consequence for making a false statement, there will be fewer of them made. That is not a bad thing.”

Oami Amarasingham, public policy counsel for the American Civil Liberties Union of Maine, argued that the bill violates the First Amendment of the U.S. Constitution.

“For nearly a century, efforts to punish speakers for the supposed falsehood of their speech have been beaten back by courts in every jurisdiction, including the U.S. Supreme Court and the Maine Supreme Judicial Court,” said Amarasingham.

Jonathan Wayne, director of the ethics commission, agreed that there are constitutional problems with the proposal. He described a situation seven years ago when the commission found that a candidate had violated election laws by claiming political endorsements he had not received. The Maine Supreme Judicial Court later found the statute the commission had used in making that decision to be unconstitutional.

“It was the type of experience that we would like to avoid in the future,” said Wayne.

Hank Fenton, deputy legal counsel for LePage, said the governor submitted the bill to “improve the discourse of our political campaigns.”

“Our election cycles are increasingly full of false statements,” said Fenton. “Currently, very little can be done to counteract those false statements. … The ability of the commission to [rule on whether statements are false] would serve as a small but important check on people who seek to influence the political process.”

Fenton said he didn’t think the bill is unconstitutional because it doesn’t propose penalties for making false statements.

Wayne also noted that campaign season is the commission’s busiest time — particularly in the month before an election, when the commission is required by law to respond to any complaints that are filed.

“It is difficult to know how many complaints we would receive if LD 1834 were enacted. … Being realistic, the investigations required by LD 1834 could reduce the time available for the commission staff to perform our existing duties in the weeks leading up to the election,” said Wayne.

The Legislature’s Veterans and Legal Affairs Committee will make a recommendation to the full Legislature on the bill in the coming days.

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