America’s constitution is much more than the written text, drafted in 1789 and amended 27 times since then. Our constitution also includes the many informal practices and folkways that make up our political way of life, including our two-party system, the common law, and the political neutrality of our military. In late 2017, the media and the managers of our elite culture transformed our informal constitution in a radical way by instituting
the accuser’s veto.
One nominee for the U.S. Senate, a sitting Senator, and at least six U.S. Congressmen (of both parties) have seen their political careers destroyed through the public airing of unproven accusations of past sexual misconduct (in the case of Roy Moore, misconduct alleged to have occurred more than 40 years ago). We must consider carefully the implications of this change, which threatens to destroy some of our most fundamental legal and political traditions.
The damage to one’s reputation that results from the public accusation of serious misconduct is one of the greatest harms a human being can suffer. The Ten Commandments protects not only our lives and property (“Thou shalt not murder” and “Thou shalt not steal”), but also our good names (“Thou shalt not bear false witness”).
The common law has long recognized our right to protect our reputations by enabling the victim of such lies to sue for defamation of character. However, since the 1964 decision New York Times v. Sullivan, the Supreme Court has denied such protection to “public figures,” including holders and seekers of federal office, who must prove, not just damage, but actual malice and reckless disregard of the truth on the part of their accuser.
If we accept the principle that accusations of sexual misconduct suffice to disqualify a candidate for public office, we thereby deny candidates the legal protections that we have for centuries afforded to criminal defendants: the presumption of innocence, the right to confront one’s accuser, the right to adjudication before an impartial judge, and a limit to the consideration of old charges through a statute of limitations. Why should these protections be limited to the imposition of criminal penalties? The virtual disqualification for federal office is a penalty greater in severity than many criminal penalties (such as fines or probation). Hundreds of years of experience have taught us the value of these protections for the individual accused of crime: shouldn’t candidates for federal office enjoy equal protection? Is an innocent person wrongly accused of misconduct to have no recourse? Besides, the principles that underlie our traditional legal protection apply with equal force to acts of public disgrace. For example, statutes of limitation exist because memory about long-past events is unreliable, exculpatory evidence and witnesses tend to vanish over time, and defense against old charges is unduly expensive. These reasons apply with equal force to the destruction of political careers by old charges.
The accuser’s veto is analogous to the regime of the Iranian Islamic Republic, in which the mullahs enforce public morality by pre-qualifying candidates for elected office, exercising an absolute and irreversible veto over those accused of religious crimes. We have in effect empowered our media and cultural elites with the same veto power here.
To reverse this radical change, we must create a new Federal Election Integrity Committee, as either an independent commission (like the Civil Rights Commission) or a joint congressional committee. The Integrity Committee would be empowered to investigate acts of political defamation. Candidates or office-holders who are publically accused of crime or sexual misconduct would have the right to initiate such an investigation, to subpoena witnesses and evidence, to confront accusers in a public forum, and to have the charges adjudicated by an impartial panel.
We must also make it a federal crime (a felony) to lie about an announced candidate for federal office, or to make defamatory remarks concerning misdeeds in the remote past (beyond a reasonable limit). We should also make it a crime to offer anyone money or other inducements to make defamatory remarks about a candidate. A special office in the Department of Justice should be assigned the task of enforcing these laws, and the Integrity Committee should be empowered to refer cases to the DOJ. We should also make it a crime for candidates to initiate the investigation of accusers they know to be truthful.
Only by taking such steps can we restore to the American people the power to choose their own government. If we reward all defamers with unchallenged political power, we will incentivize slander and lies. Such an invincible weapon will prove an irresistible temptation to political activists. We will thereby turn over our government to the most ruthless and unprincipled among us.
Rob Koons is a professor of philosophy specializing in logic, metaphysics, philosophical theology, and political thought. He is the author and editor of six books, including "The Atlas of Reality: A Comprehensive Guide to Metaphysics" (with Tim Pickavance, Wiley-Blackwell, 2017). He has been active in conservative circles, both nationally and in Texas, including the Intercollegiate Studies Institute, the National Association of Scholars, the Texas Public Policy Foundation, the Philadelphia Society, and the Austin Institute for the Study of Family and Culture. To read more of his reports — Click Here Now.