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Government Ethics
Government Ethics
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"My research found that lies by government officials can violate the Constitution in several different ways, especially when those lies deprive people of their rights," writes Helen Norton.

Can the Constitution stop the government from lying to the public?

Norton is the Rothgerber chair in Constitutional Law at the University of Colorado Boulder.

When regular people lie, sometimes their lies are detected, sometimes they're not. Legally speaking, sometimes they're protected by the First Amendment – and sometimes not, like when they commit fraud or perjury.

But what about when government officials lie?

I take up this question in my recent book, "The Government's Speech and the Constitution." It's not that surprising that public servants lie – they are human, after all. But when an agency or official backed by the power and resources of the government tells a lie, it sometimes causes harm that only the government can inflict.

My research found that lies by government officials can violate the Constitution in several different ways, especially when those lies deprive people of their rights.

Consider, for instance, police officers who falsely tell a suspect that they have a search warrant, or falsely say that the government will take the suspect's child away if the suspect doesn't waive his or her constitutional rights to a lawyer or against self-incrimination. These lies violate constitutional protections provided in the Fourth, Fifth and Sixth Amendments.

If the government jails, taxes or fines people because it disagrees with what they say, it violates the First Amendment. And under some circumstances, the government can silence dissent just as effectively through its lies that encourage employers and other third parties to punish the government's critics. During the 1950s and 1960s, for example, the Mississippi State Sovereignty Commission spread damaging falsehoods to the employers, friends and neighbors of citizens who spoke out against segregation. As a federal court found decades later, the agency "harassed individuals who assisted organizations promoting desegregation or voter registration. In some instances, the commission would suggest job actions to employers, who would fire the targeted moderate or activist."

And some lawsuits have accused government officials of misrepresenting how dangerous a person was when putting them on a no-fly list. Some judges have expressed concern about whether the government's no-fly listing procedures are rigorous enough to justify restricting a person's freedom to travel.

In 1971, The New York Times and The Washington Pos published the Pentagon Papers, exposing officials' lies about the war in Vietnam. (AP Photo/Jim Wells) Can the Constitution stop the government from lying to the public? theconversation.com


When a person or agency backed by the power and resources of the government tells a lie, it sometimes causes harm that only the government can inflict.

But in other situations, it can be difficult to find a direct connection between the government's speech and the loss of an individual right. Think of government officials' lies about their own misconduct, or their colleagues', to avoid political and legal accountability – like the many lies about the Vietnam War by President Lyndon Johnson's administration, as revealed by the Pentagon Papers.

Those sorts of lies are part of what I've called "the government's manufacture of doubt." These include the government's falsehoods that seek to distract the public from efforts to discover the truth. For instance, in response to growing concerns about his campaign's connections to Russia, Donald Trump claimed his predecessor that Barack Obama had wiretapped him during the campaign, even though the Department of Justice confirmed that no evidence supported that claim.

Decades earlier, in the 1950s, Sen. Joseph McCarthy sought both media attention and political gain through outrageous and often unfounded claims that contributed to a culture of fear in the country.

When public officials speak in these ways, they undermine public trust and frustrate the public's ability to hold the government accountable for its performance. But they don't necessarily violate any particular person's constitutional rights, making lawsuits challenging at best. In other words, just because the government's lies hurt us does not always mean that they violate the Constitution.

There are other important options for protecting the public from the government's lies. Whistleblowers can help uncover the government's falsehoods and other misconduct. Recall FBI Associate Director Mark Felt, Watergate's "Deep Throat" source for The Washington Post's investigation, and Army Sgt. Joseph Darby, who revealed the mistreatment of prisoners at Abu Ghraib. And lawmakers can enact, and lawyers can help enforce, laws that protect whistleblowers who expose government lies.

Legislatures and agencies can exercise their oversight powers to hold other government officials accountable for their lies. For example, Senate hearings led McCarthy's colleagues to formally condemn his conduct as "contrary to senatorial traditions and … ethics."

In addition, the press can seek documents and information to check the government's claims, and the public can protest and vote against those in power who lie. Public outrage over the government's lies about the war in Vietnam, for example, contributed to Johnson's 1968 decision not to seek reelection. Similarly, the public's disapproval of government officials' lies to cover up the Watergate scandal helped lead to President President Richard Nixon's 1974 resignation.

It can be hard to prevent government officials from lying, and difficult to hold them accountable when they do. But the tools available for doing just that include not only the Constitution but also persistent pushback from other government officials, the press and the people themselves.

This article is republished from The Conversation under a Creative Commons license. Read the original article.

The Conversation

Government Ethics
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Lisa Rosenberg argues, "Even Hollywood cannot seem to get enough of whistleblowers."

Whistleblowers are heroes in the movies and in real life

Rosenberg is executive director of Open the Government, a nonpartisan group advocating for government transparency and accountability.

It is hard to ignore whistleblowers these days. A whistleblower complaint about a controversial exchange between President Donald Trump and Ukrainian President Volodymyr Zelensky triggered the impeachment inquiry and subsequent trial that dominated the news for months. Even while it was focused on the impeachment trial, the Senate was also looking into reports from another whistleblower alleging that a Trump political appointee interfered with an audit of either the president or Vice President Mike Pence.

Even Hollywood cannot seem to get enough of whistleblowers. While movies and television shows about whistleblowers are not new, the theatrical and Netflix releases of several movies last year suggest a growing appetite for more insight into who they are and how their commitment to creating an accountable society benefits the greater good.

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Big Picture
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Pete Buttigieg, campaigning in New Hampshire on Thursday, is the only candidate who is a clear "yes" on all 17 democracy reform proposals being tracked by The Fulcrum.

Where Democrats debating in New Hampshire stand on democracy reform

Seven Democrats have been invited on stage for Friday night's debate ahead of the New Hampshire primary, including three who have vowed that their first legislative priority as president would be enacting an ambitious clean government package.

Town hall meetings and candidate coffees in the first primary state have for months featured discussions about expanding voting rights, curbing money in politics and overhauling such bedrock government institutions as the Supreme Court, the Electoral College and the Senate filibuster. But the disagreements among the candidates have been subtle, and so there's no reason to believe the moderators will find new flashpoints or cleave new divisions on democracy reform topics at the debate, being conducted at Saint Anselm College in Manchester at 8 pm Eastern.

The table below shows where the seven candidates stand on 17 of the most prominent proposals for improving the way democracy works — in areas of campaign finance, access to the ballot box, election security, political ethics and revamping our governing systems.

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The tiny Election Assistance Commission is the main federal agency regulating the nation's voting systems in an era of widespread hacking. But the agency's staffing is three-fifths what it was a decade ago.

Gutted federal election watchdog struggles to recover

Nine months from an intensely contested presidential election already clouded by anxiety about the integrity of the results, the main federal agency overseeing the process is struggling to get back on its feet after years in turmoil.

The Election Assistance Commission is unknown to most Americans. But it certifies the reliability of the machines most voters will use this fall, and it's at the epicenter of efforts to protect our election systems from being hacked by foreign adversaries.

And since last fall it's been without an executive director or general counsel to coordinate the government's limited supervision over how states and thousands of localities plan for the 2020 balloting. In fact, none of eight top officials listed on the agency website in March 2017, when the extent of Russian interference in the last presidential election was just becoming clear, are still with the agency. Neither are eight of the other 16 staff members who worked there then. And years of budget cuts have only recently started to be reversed.

The ability of the already tiny operation to do its job in the leadup to November — when turnout and fear of hacking could both reach record levels — could go a long way to determining whether the world believes President Trump was either defeated or re-elected fair and square.

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