Read My Lips: Examining the Legal Implications of Knowingly False Campaign Promises

This Note does not argue that campaign speech should always be held to the same standards of accuracy to which other forms of speech are held. Campaign speech is unique in form, with its own idioms and rhetorical devices, and serves unique purposes.

Part I discusses the ways false campaign promises damage the political process and suggests that attaching legal liability to knowingly false campaign promises could serve important public policy interests. Part II applies common law contract doctrine to a hypothetical broken campaign promise, finding all the elements of a breach of contract claim. Part II concludes, however, that contract remedies are poorly suited to cure the damage of unperformed campaign promises. Part III applies tort doctrine to the hypothetical campaign promise, finding all the elements of the tort of deceit. Although the tort claim more closely serves the goal of deterring knowingly false campaign promises, it also lacks a practicable method of assessing damage awards.

Finally, Part IV examines state regulation that regulates other forms of campaign speech and recently proposed state legislation that would criminalize the making of knowingly false campaign promises. The proposed legislation features elements of the tort claim of deceit, yet avoids the problem of assessing damages by providing a criminal sanction. Thus the statute more effectively focuses on the problem of deterring false speech rather than the problem of compensating for unfulfilled expectations. The Note concludes that significant problems exist with the proposed legislation, but that these problems should not preclude the exploration of alternative methods of legal enforcement. Will Rogers once said a politician’s promise isn’t worth the paper it isn’t written on. This need not always be true.