Honoring the lasting legacy of former President Bill Clinton’s infamous deposition testimony about a certain blue dress, here's a few questions for Senate President Brandon Shaffer.
First, in light of your proposal to put the state legislature’s lying liars in their place, please, if you will, Mr. President, tell us just exactly what the definition of the word “is” is.
Second, and more specifically, what’s the definition of “truth” in a politically charged environment where the actual “truth” too often arrives not in black and white but instead in endless shades of gray?
Don't worry, Senator, I won't insist that you go under oath before you answer.
To get serious for a moment, and as chronicled by The Denver Post’s Lynn Bartels today, Shaffer is floating the very serious “idea of having witnesses swear to tell the truth before they testify in committee.”
Interestingly, in a press release sent out by the Shaffer camp in response to the article, he claimed Bartels had gotten it wrong and that, in fact, he had decided two weeks ago to hold off on pushing the proposal during the current legislative session.
Not so, said Bartels in a response to FOX 31 this afternoon. “When Brandon told me this morning that he had decided two weeks ago not to pursue the swearing in idea, I told him I wished he had told me that YESTERDAY when I interviewed him. He conceded he had failed to mention it.”
To paraphrase Napoleon, a little strategic advice here: never start a battle with a (wo)man who buys ink by the barrel.
This is the second time this month that Shaffer has flip flopped on contentious legislative issues, coming on the heels of his decision to withdraw support for legislation he'd co-sponsored that successfully sought to increase the per diem for rural legislators commuting to Denver for the legislative session. These are significant stumbles for Shaffer, a Longmont Democrat now running against incumbent Republican Cory Gardner to represent the state's 4th Congressional District.
All this aside, timing isn't the only issue. Whether it would be introduced this year or in any future year–and regardless of whether it would be introduced by Shaffer or any other legislator of either major party, it's just a really bad idea. Really bad. Horrible really.
Under his plan, as detailed by Bartels, current mandatory witness sign-in sheets would be amended to include the following: “By signing below, I affirm that the testimony I will give before this committee will be truthful to the best of my knowledge in accordance with CRS 2-2-315 and CRS 18-8-502.”
Behind those pesky little statute sections cited are a serious threat to would-be violators: felony perjury charges. Even before his press release today, Shaffer conceded that he faced an uphill battle with committee chairs “have been less than thrilled.” Sen. Nancy Spence, R-Centennial characterized the proposal as “outrageous.”
Still, Shaffer is defending the concept, telling Bartels “I think it's reasonable to expect people when they testify in committee to be truthful.” Practically speaking, incentives for witnesses to tell the truth are diverse and broad.
First, when it comes to contentious committee debates, witnesses know they are being watched, not only by legislators and lobbyists, but often by TV cameras, news reporters, bloggers, activists, school kids and political adversaries. Second, Colorado law already punishes false statements under a variety of state statutes. And third, as Bartels pointed out, lawmakers already can require witnesses to take an oath because of a law that has been on the books since 1877.
Shaffer’s fellow Democrat, Bob Bacon of Fort Collins, chairs the Senate Education Committee and suggested that the oath be limited to “professional witnesses”. But this suggestion is also flawed.
If we assume a very broad definition of “some professionals” to include professional lobbyists, public officials, high ranking public employees and corporate heads, these individuals are often already obligated to tell the truth under various professional ethics rules and duties. More troubling, who gets to pick who is “professional” enough to be presumed as a liar? Do we limit this to registered lobbyists? What about lawyers who are technically exempt from registering because they fall under an exception for client representation?
Still, Bacon's overall skepticism, as voiced to Bartels, is well received. “Many of the witnesses who come here are unfamiliar with the process and nervous already, and we ought not to intimidate them,” he said.
As Shaffer tells it, the proposal is the brain child of Terrance Tschatschula, a Denver businessman married to the sister of former Governor Bill Owens. He noted that a similar oath required by witnesses before the Public Utilities Commission doesn't appear to deter witnesses from speaking.
It's impossible to know how true this impression is, but at minimum, the PUC accepts testimony mostly from a much different crowd than the diverse voices heard at the capitol. Instead, the commission hears from a sophisticated mix of regulators, lawyers, CEOs, and rich guys in suits. The ordinary citizen witness is the exception.
Tschatschula wants the legislature to adopt a mandatory oath requirement six years after he says he witnessed an expert lying during 2006 testimony on a natural gas bill championed by Schaffer. “Sen. Shaffer realized he had been sold a bill of goods on this, and he eventually pulled his own bill,” Tschatschula told Bartels.
As the story goes, Shaffer killed the 2006 bill after he determined that at least one of the witnesses wasn’t telling the truth. Ultimately and ironically, it is his decision here that proves that a truth-checking function already exists at the Capitol. Yes, a bill died that might have otherwise survived, but the lie was discovered.
The system worked and did so without adding a heavy handed legal threat to the witness experience. As is the case too often with existing complaint procedures in the political arena, political adversaries can and do abuse the system from time to time.
Empower strategists with a bomb that would “truth test” political opponents and we'd inevitably see a surge in requests for prosecution based on ambigious, contentious, or politically charged testimony.
Forget about needing to get actual criminal charges filed to smear an opponent when the mere allegation of falsity would provide all the ammunition needed to “truthfully” proclaim that “Witness So-and-So is being investigated for lying to a state legislative committee.”
While it’s relatively easy to determine whether a witness has lied about some types of facts, such as specifics related to a documented occurrence, cost projections, financial health or tax revenue, it’s much more difficult to diagnose falsity when testimony is based on personal recollection, involves policy analysis of cause-and-effect or seeks to outline future repercussions of current policy proposals. Legal text books are already overflowing with cases attempting to clarify the First Amendment's treatment of spoken assertions in the public square that cannot be easily quantified or otherwise documented by universally accepted sources.
None of this analysis should be seen as endorsement of lying. Instead, it should be seen as a recognition of our shared patriotic commitment to encouraging vibrant political discourse.
Time and again, the benefits of this commitment far outweigh the negative consequences of chilling the speech of all as a way to deter unethical liars who lie because they don't think they'll get caught. Signing an oath that articulates the threat of criminal prosecution isn't going to deter liars from lying. Lying is, by definition, part of a liar's core identity.
The legislature is the last place where we should silence or chill speech, especially when threats include felony sanctions. If we truly want to catch the bad guys, we have a better place to start. It’s called Google, a worthy destination for legislator iPads that otherwise turn to Facebook and email during lengthy committee hearings.
Free speech is anything but free, especially when utilized by individuals sick enough to choose politics as a career. Lies hurt people. Lies cost jobs. Lies ruin families and destroy dreams. Fortunately, the most effective weapon against lying liars is available to each of us at all times, 24-hours a day, without exception.
It's called using our own First Amendment rights, starting with a commitment by each of us to actively investigate questionable facts put forth in the public square and upon finding falsity, utilizing our own voices to call out those who seek to pollute our system with deceit.
Get the protest placards and the press releases ready. Nothing kills a bill quicker than a front page, above-the-fold news report questioning the ethics of its supporters. And with that, let the debate begin.