Virginia Campaign Lies: the Unethical Use of the Dishonest “Would”

The next U.S. Senator from Virginia? You could do worse! In fact, Virginia might.

I’m going to vote for Tim Kaine, the ex-Democratic Governor of Virginia running against George Allen, the Republican trying to regain the seat he lost in 2006 to James Webb. After the slimy, dishonest campaign Allen ran against Webb ( full disclosure: I went to law school with the Senator, and know him personally. A more honorable, courageous, principled man doesn’t walk the earth), Allen lost any chance of a vote from me forever, and it wouldn’t matter if his opponent was a toilet brush.

Nonetheless, Kaine’s ads are making me think he’s only a step or two above toilet brush level. Especially outrageous is this line, from a “war on women” ad “approved” by Tim Kaine, intoned by an announcer as the camera shows a woman:

                   “Allen would take away her Constitutional rights by reversing Roe v. Wade.”

Even counting “v.” as a word, this inexcusable statement includes four misrepresentations in just twelve words, an impressive total, though I’m sure Bill Clinton has topped it at one point of another. Let’s see:

  • By definition and process, a Senator can’t single-handedly “take away” Constitutional rights. He would have to be joined by a majority of the Senate in passing a law, and a majority of the House would have to agree, and then the President would have to sign the bill. Even then, if the Supreme Court found that a law took away a Constitutional right, it would have to strike the law down. If, on the other hand, the Court ruled that there wasn’t such a right in the Constitution, then neither Allen nor anyone else could be accused of taking that right away. It’s there, or it isn’t. Only an Amendment can take away an existing right.
  • Nor can Allen reverse Roe v. Wade, no matter how much he wants to or tries. Senators don’t reverse Supreme Court decisions; only the Supreme Court can do that. So to say he would do what he can’t possibly do is an outright lie.
  • Even if Allen could reverse Roe, which he can’t, doing so wouldn’t take away a right. Roe itself was case that found a right to abortion in the “unenumerated rights” in the 9th Amendment. If it’s reversed, that will mean that a Supreme Court decided that the original decision was wrong: there never was a right, and the case was wrongly decided. The right will not have been taken away; it never existed in the first place.
  • Most of all, however, the use of “would” is deceitful. Would is the past tense of will, yet it is colloquially used in place of will. Saying someone would do something may be taken to mean he will, but Allen can’t do any of the things the ad says he would do. It really means he would if he could, but that meaning is hidden by the context. Why should anyone care what Allen would do, if there is no chance that electing him to the Senate will in fact allow him to do it? And how can it be fairly stated that Allen would do something that he presumably knows isn’t within the power of the office he is seeking? The statement that George Allen, if elected, would reverse Roe (if it wasn’t impossible) is as honest as saying that he would flap his wings and fly to Mars (if he had them) or that he would turn Michelle Obama into a turnip (if he acquired magical powers.) It is  dishonest and also misleading: how many of the civics-challenged Virginian who see this ad will think that Senators can reverse court rulings? My guess, based on close up experiences with Virginia schools: Too many.

My favorite biased “fact-check” site that is really a partisan site pretending to be objective, PolitiFact, tries to excuse the ad by noting that “there’s strong evidence that Allen would vote to confirm an anti-Roe nominee to the court if given an opportunity.” Well,

  • If the judge nominated is qualified, every Senator should vote for him or her. It’s not supposed to be a political judgment.
  • The fact that the nominated judge didn’t agree with Roe wouldn’t mean that this was the reason Allen would vote to confirm him.
  • The fact that the nominated judge didn’t agree with Roe wouldn’t mean that he or she would necessarily vote to overturn it. The tradition of the Court is stare decisus, meaning that a previous decision by the Court is presumed to stand except in extraordinary circumstances.
  • If the hypothetical judge were nominated to replace another conservative judge, Allen’s vote for his or her confirmation would probably have no effect on Roe at all.
  • No matter how you look at it, and how much PolitiFact is conditioned to make excuses for Democrats,  by no stretch of the imagination is voting for a judge nominated to the Supreme Court the equivalent of “reversing Roe v. Wade.

Tim Kaine has approved an ad that is unfair to Allen, lies to voters, and helps contribute to public ignorance.

Maybe I’ll just write in “Toilet Brush” for U.S. Senator…

[Post Script: What should the ad have said, if it was intended to be fair and honest? “George Allen opposes abortion in many instances.”]


Source: PolitiFact

Graphic: How to be a germaphobe

7 thoughts on “Virginia Campaign Lies: the Unethical Use of the Dishonest “Would”

  1. It’s the equivalent of a physicist not buying cars from a certain car company because talks about how great their car’s deceleration is. To a physicist this is wrong because in physics there is no such thing as deceleration. It’s all acceleration. Regardless of what a physicist thinks, the general public understands the message to be, “our cars slow down really well.”

    You’re asking for a political ad to use the same precision of language as a legal document. More importantly, you’re asking for every American to have the same level of education and legal understand as you. It’s just not going to happen. The general public hears the add and understands, “When my opponent votes on issues related to abortion he’s going to vote to restrict abortion rights.”

    • That is definitely NOR what the average voter hears, nor what the ad intends to convey. What is heard and believed is a false assertion that this man WILL do something undesirable if elected. I have gad the conversations with voters, lots of them, many quite educated. They say this and believe this. I have even heard broadcasters talk about how a Senator or Romney “would” “overturn” Roe v. Wade.

      Same precision as a legal document? I’m asking that the ad not convey false information. Your car comparison isn’t even close.

  2. I’m with you that a decision to overturn Roe v. Wade would not constitute a removal of rights, merely an assertion that those rights never existed.

    And it’s certainly true that no individual senator could exercise any control over the (real or imagined) right to an abortion, except by an extraordinarily indirect process–voting to confirm or not to confirm SCOTUS nominees.

    And I’ll (apophasistically) skip over your “partisan” tag to PolitiFact. They’re incompetent, not partisan. There are dozens of examples of their stupidity–in both directions. Interestingly, their research is actually pretty good; it’s their conclusions that make no sense.

    Still, I think your objection to the ad is little more than a quibble. For better or worse, the language of the piece has become an acceptable shorthand for its real meaning, and I’m with Eric on this: the public will interpret the commercial to mean simply that on those occasions when a Senator Allen might have an opportunity to vote on abortion-related policies, he’d be in favor of restricting access. Note: I certainly grant that the average voter doesn’t understand the relative infrequency of such votes.

    I agree that qualified candidates ought to be confirmed, independent of their positions on hypothetical cases which might come before them. I don’t know if Mr. Allen agrees. That is, it is unfair to condemn Allen for an alleged willingness to confirm a qualified pro-life appointee; it is perfectly fair to criticize him for a stated unwillingness to confirm a qualified pro-choice appointee, if he has indeed taken such a position. (As noted, I don’t know if he has or not.)

    But I do take issue with your commentary on “would.” Yes, it’s the past tense of “will.” But it’s also the conditional: “will” expresses inevitably; “would” suggests a cause and effect relationship in which the cause is in doubt.

    Would a Senator Allen attempt to overturn Roe? I suspect he would (see what I did there?), employing whatever means are available to him. These would include (perhaps) a litmus test for SCOTUS nominees, plus the adding of conditions to abortion access: yes, abortion is legal, but not in cases A, B, and C, and only if hoops X, Y, and Z are successfully negotiated. Again, I’ll grant that “overturn,” taken literally, can have only one meaning, and there’s no way Allen could do that. It is more likely that Allen would seek to erode the rights articulated by the Roe decision.

    Finally: issues are raised initially by those who support the status quo if (but only if) the candidate was in part responsible for the policy: “I championed bill X, and your life is better because of it.” Otherwise, issues are raised by those who seek to change the status quo. Therefore, since the Roe decision still stands, it’s reasonable to suggest that it is Allen, not Kaine, who raised the question, probably suggesting that he would do precisely what the Kaine ad says he would do: “overturn Roe v. Wade.”

    I spend a good deal of my life demanding precision in language. This particular case merits barely a blip.

    • Fair analysis, Rick, although I can’t comprehend tolerating a statement that is untrue on its face as acceptable because it’s a common device. Allen can’t overturn Roe. Period. The ad says he would. That’s no blip. That’s an intentional falsehood. I choose that example because its in my face every night, and because it couldn’t be more clear. It’s wrong. It’s misleading. Candidates shouldn’t be approving statements like that. It’s pretty simple.

      • Jack, I am just nit-picking, and following up on Rick’s comment about demanding precision in language: In your first sentence, don’t you mean “…Tim Kaine, the Democratic ex-Governor…”? I would not want someone to refer to me as “the ex-ethical employee of [Company ABC].”

  3. Even concerning nomination of judges, <iRoe is only an issue when a Supreme Court justice is nominated.

    all lower court judges are just as bound to follow Roe as they are to follow Baker v. Nelson.

  4. It’s interesting that both political parties keep the issue of abortion in the mix of electable traits. They do so because both Republicans and Democrats solidify votes based on this issue, and yet, it has to be about the most solidified (and inconsequential) topic at the national level.

    Don’t get me wrong, I’m not saying the issue is “settled”. It’s very contentious. But for every reason you listed above, it’s inconsequential to any election because it will be incredibly difficult to change, let alone impossible for one single person to have an impact.

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