We Should Regulate Politicians’ Public Statements Like Advertisements

Written by Hazem Zohny

There are strict regulations in place to stop businesses falsely advertising their products or services — why not the same for politicians? Lizz Truss and Rishi Sunak are currently trying to appeal to the Conservative party members who will determine the UK’s next prime minister in September – why can they largely get away with saying pretty anything about how their proposed policies will improve the status quo?

The UK’s Advertising Standards Authority has a clear code governing the public statements businesses can make about their products and services. They cannot mislead consumers by omitting key information or by exaggerating the performance of a product or service, and they must state any significant limitations and qualifications. In contrast, politicians are free to make misleading public statements about how they will tackle, say, inflation or recession using (potentially fudged) figures with little context or caveats.

To say that a sufficient penalty for misleading the public is that such politicians will eventually get found out and voted out is like saying a sufficient penalty for a business misleading the public about its product is that eventually no one will buy it – a catastrophic idea if that product has significant health and wealth implications for millions, as social, economic and foreign policies tend to.

Politicians vying for votes should be treated similarly to businesses selling goods or services: if their claims are misleading (intentionally or not), the law should make that significantly costly for them and they should be legally bound to retract them. This idea is by no means novel, and tends ebb and flow with elections cycle. See this or this for similar arguments, especially on what the precise penalty for misleading the public ought to be, which I will not focus on here. Instead I want to consider some broader objections to this proposal.

1. Politicians aren’t businesses

There are obvious differences between politicians and businesses, but they share a core characteristic: both make public statements in the hope of persuading us to place our confidence (i.e. votes or money) in what they are claiming to offer. And both are offering things with often significant implications for the public. These implications are typically much greater when it comes to what politicians offer. Even among drug companies, if they make misleading claims about a product’s efficacy or side-effects, this may lead to serious injury or death. But if a politician or group of them misleads about the efficacy or side-effects of a policy or set of policies, that could lead to serious hardship and/or death for millions (consider the often-cited 120,000 excess deaths due to austerity – even if hugely exaggerated, there is no doubt social and economic policies that determine what key infrastructure and services are funded and by who impacts the health- and life-span of millions in the present and future.)

Note also that “misleading” here is not limited to intentionally doing so. If a drug company fails to properly research the effects of using its product and claims it did not know it would lead to x-number of, say, strokes, no one would find this an acceptable defense. The same should hold for politicians: MPs have access to numerous research aides and civil servants, and it is their job to make sure they are adequately informed about their policy claims, or at least adequately informed to caveat them by highlighting the relevant uncertainties.

2. Policy is more complicated than hard science

With drugs, we can conduct randomised controlled trials and amass data in a relatively short duration about their efficacy and side-effects. With socio-economic and foreign policies, anything akin to a controlled trial is incredibly difficult, with their effects so hard to track over time. Therefore it is too demanding to expect politicians to know the impact of things like tax cuts, rent controls, or of raising interest rates (to say nothing of how these may interact with each other relative to events elsewhere in the world).

This is a significant difference, but imagine a drug company said “it’s incredibly difficult to figure out the impact of this drug, so we should be able to advertise whatever we like about it.” Bizarre. To the contrary, few would think such a drug ought to be made available let alone in any way advertised.

A disanalogy is that while a given society may not need a particular drug, we need social and economic policies, and so we ought to be less risk averse about them. However, even if a drug of undeterminate impact was a dying person’s last hope, few would think it permissible to tell that patient this drug will solve all their problems. Informed consent is still relevant, and that means listing all the caveats, including limitations in knowledge. The same ought to be demanded of politicians advertising their proposed policies. And if it is a policy where there really is legitimate disagreement among experts (as there usually is), then politicians should have to clearly state this as a caveat when making public announcements about these policies. It is only when all these caveats are clearly stated that they may then be free to make statements to the effect of, “But I personally believe this policy will work”.

3. It will stifle politicians’ right to free speech

To be clear, stifling politicians’ right to free speech is precisely what is being demanded here. Becoming a politician is a voluntary choice for which (at least in affluent democracies) one is well compensated. Part of that compensation should be for limiting what they can claim in public. Doctors cannot tell their patients whatever they like about their condition, its prognosis or treatment – doing so would include penalties not just for intentionally misinforming them, but negligently as well. The same holds for what lawyers can state in court.

None of this would make it illegal for politicians to be hypocrites or to use rhetoric to try to persuade the public. Indeed, while there are significant penalties for lawyers who mislead the court, their job is to use rhetoric to persuade. Good doctors inform their patients in ways conducive to them making decisions in their best interests. Businesses advertise to persuade us in all sorts of way to buy their products by associating them with other desirable outcomes (e.g. smelling good and being successful at mating). Which is to say politicians would still be able to use rhetoric and argument to persuade, but in a context where the law significantly deters them from omitting key information, exaggerating effects or failing to state significant limitations or uncertainties.

4. Politicians would never accept this proposal + who would determine if a politician is misleading the public?

A final objection to consider is the practicality of such a law. Why would politicians ever vote in something that limits their freedom and that potentially makes them liable to a criminal offense? Briefly: there is a history of politicians voting against their interests, including against their own pay rises and for term limits. More importantly, grassroot movements can compel them to do so – history is replete with examples where the public places immense pressure on governments to change. Opposition parties see this pressure as an opportunity, they integrate the public demand into their manifesto, they win and change is effected. It might not happen as often as we’d like, but it’s no quixotic vision of reform either.

Finally, in terms of the process of determining whether a politician has misled the public: this will no doubt be a complicated matter, but it is not obvious why it need be substantially different than the process behind the UK’s Committee of Advertising Practice, an independent body linked to the communication regulator, Ofcom. It monitors ads and checks they follow the ‘code’, which has been agreed upon in collaboration with the advertising industry. Again, it is complicated and flawed, and there will be significant differences when it comes to regulating the speech of politicians, but this is no arcane thing either. At the least, pointing to the potential difficulty of regulating politicians’ public speech as a reason to accept the dismal status quo seems as ridiculous as pointing to the difficulty of regulating businesses’ advertisements as a reason to accept false advertising.