Dan Carlin on his podcast made an interesting observation:
If you promise to do something in a business setting, that constitutes a verbal contractual obligation, and as such if you break that promise you can be sued for breaching said contract.
Why aren't campaign promises treated similarly? Were there any attempts to enforce them and if so, what were the arguments presented for them and what were the reasons for failure of the proposal?
In a nutshell, because political speech is so sacrosanct, the Supreme Court has found a right to lie on all sorts of matters. While not having to filter out lies and broken promises would be nice, the court seems more concerned about chilling free speech.
The primary case in this regard is United States v. Alvarez which is sometimes referred to as the "Stolen Valor" case. In this case, the United States Congress passed the Stolen Valor Act of 2005, (18 U.S.C. § 704), which made it a criminal offense to lie about medals earned in the U.S. Military. Alvarez, running for Water Board, claimed to have earned the Congressional Medal Honor. The decision basically boiled down to a lack of harm. Wikipedia summarizes it as follows:
When balanced against the Government's need to protect the value of the Medal, the plurality said that "the link between the Government's interest in protecting the integrity of the military honors system and the Act's restriction on the false claims of liars like respondent has not been shown."[27] Additionally, Kennedy wrote that 'counter-speech' was a sufficient solution to the problem: "It is a fair assumption that any true holders of the Medal who had heard of Alvarez's false claims would have been fully vindicated by the community's expression of outrage... Truth needs neither handcuffs nor a badge for its vindication." [28]
In the most recent term, Ohio's Susan B. Anthony List - a pro-Life organization in Ohio, furthered the "right to lie" in its case SBA List v. Driehaus. Here, Ohio wanted to make it a crime to do political advertising that contained factual errors. SBA countered that the law would have a chilling effect on political discourse.
SCOUTSBlog writes:
The Court addressed this question directly in Susan B. Anthony yesterday. Justice Thomas wrote this for the unanimous Court – referring to both standards in a single sentence:
An allegation of future injury may suffice if the threatened injury is “certainly impending,” or there is a “‘substantial risk’ that the harm will occur.” Clapper, 568 U. S., at _, _, n. 5 (slip op., at 10, 15, n. 5) . . . .
This sentence appears to establish a disjunctive test – i.e., that it is sufficient for the plaintiff to prove either that the threatened injury is “certainly impending” or that there is a “substantial risk” of the injury. Of course, if that is right, then the plaintiff’s de facto burden would be to prove only a “substantial risk” of injury, because there is always such a “substantial risk” of injury in any case of “certainly impending” harm.
Free speech is very important in the US, and a side effect of that is the right to lie. The risk of curtailing lies is obvious, the obvious harm prevented by a law requiring consistency is not sufficient to overwhelm it.
It's certainly an interesting proposal. One could argue that it is not always possible to do what is promised when on the campaign trail due to opposition, but roadblocks are not usually acceptable excuses to be let out of a contract.
Here is what I found on findlaw in the small business section:
If one party makes a statement or a promise that causes another party to rely on that statement in such a way that he or she is financially injured by that reliance, then a court will enforce the statement or promise as if it was a completed contract. The court does not need to find an agreement or consideration in order to enforce the promise like a contract.
So one could argue that we are not in a situation that we are "relying" on the statement.
If we generalize out from campaign promises into political promises in general, there is an important difference between public and private sector promises.
In the private sector, not all promises are allowed, for example all the owners in a specific industry promising to reduce output and set high prices, that would be strictly illegal. The promises enforced in business are built around the idea of trade. Tom the smelter wants to buy ore at $10 a pound and Bill the miner wants to sell his ore above $5 a pound. They make a promise to buy/sell ore at $7 a pound and both parties are enriched. In fact, they both had to be enriched or either party could just walk away. These positive-sum-game trades are the foundation of an economy and are rightfully protected by laws which enforce promises.
In a political setting, there is no guarantee that a trade(often called logrolling) will benefit all parties involved. For example, the representatives from the south and west parts of the United States could agree to raise taxes in the north east and buy lots of agricultural subsides that the south wanted and roads that the west wanted. First of all everyone is made worse off in the North east by the trade. Even worse, there's no guarantee that the benefit to the south and west will be greater than the loss to the north east. There might be less wealth/happiness in the world because of this trade. Being able to enforce contracts make these kind of trades easier to do. For example even if your bill doesn't come up for a vote for 3 more days, I can still contractually obligate you to vote my way if I vote for your bill today.
Enforcing promises in the private sector is difficult and costly (legal fees, writing laws, fraud etc), but at the end of the day, it helps facilitate voluntary trade which enriches both sides of the contract. Enforcing promises in the public sector might lead to a better state, but it might lead to a worse one, so there is less reason to pay the costs of enforcing such contracts.
