Rick Hasen recently published an interesting article on the legal remedies for malicious lying in politics. Richard L. Hasen, A Constitutional Right to Lie in Campaigns and Elections, 74 Mont. L. Rev. 53 (Winter 2013) . He fears that “false and misleading speech may be increasing” in a “highly charged partisan atmosphere, in which each side cannot agree upon the basic facts,” and that the media, including the burgeoning fact-checking corps, “are not able to meaningfully curb candidates’ lies and distortions.” Id. at 54. 55. Legal responses seem largely beyond reach, particularly after the Supreme Court’s decision in Alvarez v. United States, 132 S. Ct. 2537 (2012), which Hasen reads to indicate that “broad laws targeting false speech stand little chance of being upheld, regardless of topic.” Id. at 69.
Among several issues of note, one stands out as illustrating the complications besetting the current federal campaign finance structure. If there is more lying in politics, we might expect this to correlate with an increase in the number and activities of Super PACs. The link that comes most immediately to mind is the connection many draw between Super PAC advertising and hyperbolic campaign advertising. This may not be the only connection or even the key one. Federal candidates contending with proliferating false speech may also need Super PACs for their defense, for want under the regulatory regime of an alternative source of funds to deflect or manage maliciously false charges.