Politicians' Impunity: Laws For Them, Not By Them

While politicians are not exempt from the law, there are certain legal loopholes that allow them to act in ways that would be considered illegal for the average citizen. For example, in the United States, it is perfectly legal for politicians to spread misinformation and disinformation during election campaigns and about proposed constitutional amendments. This is because there are no federal laws that criminalise deceptive and misleading advertising in politics, as there are for businesses. However, this does not mean that politicians are entirely above the law. If a politician commits a crime, they can be prosecuted and punished accordingly. In fact, there have been recent calls for Congress to pass a constitutional amendment that would restore presidential liability and hold them accountable for any criminal abuse of power.

Politicians can lie during election campaigns

Several attempts to legislate against lying by politicians have been struck down by the courts. For example, in 2012, the U.S. Supreme Court struck down the Stolen Valor Act of 2005, a federal law that criminalized lying about receiving military honors. The high court ruled that a California water board member couldn't be prosecuted for falsely claiming he had served in the Marines and received the Medal of Honor.

Other courts have struck down efforts to regulate false political speech in Ohio, Minnesota, Washington, and Massachusetts. The Washington State Supreme Court wrote in a 2007 ruling that:

> The notion that the government, rather than the people, may be the final arbiter of truth in political debate is fundamentally at odds with the First Amendment.

The courts have generally argued that the antidote to false political statements should be more speech or counterspeech, relying on political opponents, the press, or voters themselves to identify and call out campaign lies.

However, it is important to note that there are laws against defamation, but the burden of proof is very high when it comes to public figures. For a statement to be defamatory against a public figure, it must be proven false by clear and convincing evidence and be made with actual malice, meaning with knowledge that it was false or with reckless disregard for the truth. This provides leeway for politicians to make exaggerated or misleading campaign claims.

Voters should always be skeptical and never take what politicians say at face value, as they are not in the truth business, but in the power business.

Misinformation and disinformation are not banned in politics

Misinformation and disinformation are powerful tools that can be used to influence political outcomes. While spreading misinformation and disinformation is not illegal for politicians, it does raise serious ethical concerns. The ease of creating and disseminating false information through new AI technologies has made this issue particularly prominent in recent years.

In Australia, for example, the federal parliament declined to implement a ban on misinformation and disinformation during a referendum campaign about recognising First Nations Australians in the country's constitution. This decision was criticised by the federal parliament's joint standing committee on electoral matters, which acknowledged the detrimental spread of misinformation.

Similarly, in the United States, there is no federal law prohibiting politicians from spreading misinformation and disinformation. This was evident during the 2024 election campaign, where false claims and negative material about various candidates were circulated, influencing voters' perceptions.

The lack of legal repercussions for spreading misinformation and disinformation in politics allows for the manipulation of public opinion and can undermine the integrity of elections and the trust in public health pronouncements.

There are no federal laws that apply to politics

While there are no federal laws that apply to politics, there are some laws that apply to politicians. For example, in the United States, the Hatch Act prohibits federal employees from engaging in partisan political activity while on duty, in a federal facility, or using federal property. The act applies to all federal employees, but its restrictions are broken down into two groups based on position. "Less restricted" employees, including most career employees in the executive branch, are allowed to participate in political campaigns while off-duty and outside of federal property. "Further restricted" employees, including career Senior Executive Service members, administrative law judges, employees in the Criminal Division, FBI, and National Security Division, are held to stricter rules that preclude active participation in political campaigns, even off-duty.

In Australia, there are no federal laws that apply to politics, but there are some state laws that do. For example, South Australia and the Australian Capital Territory have truth-in-political-advertising laws that apply to their state and territory election campaigns. These laws make it unlawful for political advertisers to make purported statements of fact that are misleading to a material extent. However, these laws do not seek to stop people from expressing their opinions, even if they are uninformed.

Only some states have truth-in-political-advertising laws

In the United States, there are no federal laws that apply to misinformation and disinformation in political advertising. However, South Australia and the Australian Capital Territory have truth-in-political-advertising laws applying to their state and territory election campaigns. These laws make it unlawful for political advertisers to make purported statements of fact that are misleading to a material extent. They do not, however, seek to stop people from expressing their opinions.

In the US, the Federal Trade Commission (FTC) is tasked with regulating commercial advertising and protecting consumers from false advertising by companies through its "Truth in Advertising" standard. However, political campaigns and politicians have been largely exempt from advertising requirements on the grounds of free speech.

At the federal level, there has been little action on the regulation of facts in political advertising. The Honest Ad Act, introduced by Senators Amy Klobuchar, Mark Warner, and Lindsey Graham, argued that there are strong disincentives for candidates to "disseminate materially false, inflammatory or contradictory messages to the public" through traditional media. The act also argued that the norms that regulate traditional media must also be upheld by digital platforms.

Some states have taken policy into their own hands regarding state-based races. As of 2014, 27 states prohibit false statements in advertisements, but courts have struck down laws in four of those states.

Presidents are immune from criminal prosecution

The idea that a sitting president is immune from criminal prosecution is a concept known as "presidential immunity". While the U.S. Constitution does not explicitly grant civil or criminal immunity to presidents, the Supreme Court has ruled that the president has absolute immunity from civil damages actions regarding conduct within the "outer perimeter" of their duties.

In the case of Nixon v. Fitzgerald (1982), the Supreme Court found that the president has absolute immunity from civil damages actions for official acts. This was further affirmed in Trump v. United States (2024), where the Supreme Court ruled that presidents have absolute immunity from criminal prosecution for official acts within their "exclusive sphere of constitutional authority". For acts outside of this sphere but still within the "outer perimeter" of their official responsibility, presidents enjoy presumptive immunity.

The Department of Justice (DOJ) also asserts that the president is immune from federal criminal prosecution. The DOJ's Office of Legal Counsel (OLC) has issued memoranda in 1973 and 2000 concluding that it is unconstitutional to prosecute a sitting president. The OLC argues that criminal indictment, prosecution, or punishment would effectively incapacitate the presidency, and that the only means to do so are impeachment or the 25th Amendment.

However, it is important to note that presidential immunity does not extend to unofficial acts, and presidents can be prosecuted for such acts. Additionally, the Supreme Court has ruled that the president can be sued for their private acts, both before and during their presidency.

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