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January 26, 2015

The latest effort to criminalize politics comes from the Cape.

Three weeks ago, a clerk magistrate allowed a criminal complaint filed by state representative Brian Mannal against the Jobs First PAC to proceed. 

Jobs First is one of those loathsome political action committees that have cropped up in the wake of what my colleague, Professor Cunningham, calls our “campaign finance farce-ocracy.”

The PAC sent a mailer to Mannal’s constituents that declared his backing of a bill to provide defense counsel to those who are indigent and accused of low level sex offenses, was really an attempt to line his own pockets.

The Cape Cod Times’ description of the bill noted it would require “the Massachusetts Sex Offender Registry Board to notify sex offenders of the right to a hearing and court-appointed attorney when applying for reclassification or early termination of sex offender status. State law currently makes taxpayer-funded, court-appointed counsel available to sex offenders who cannot afford a lawyer.”

Jobs First, deploying the “any means necessary” tactic to defeat a political opponent, put the following in its flier: “Now he wants to use our tax dollars to pay defense lawyers like himself to help convicted sex offenders . . . Brian Mannal is putting criminals and his own interests above families.”

Note that the bill was to provide representation to those accused of an offense and too poor to afford it.  Interesting how the PAC just knows that the accused are “criminals.”  But I digress.

The response to the PAC should have been pretty straightforward: Mannal is a criminal defense attorney but has never represented a client accused of a sexual offense and, furthermore, is not certified to handle cases in front of the Sex Offender Registry Board.

Jobs First’s claim was so over the top and malevolent that a Republican colleague of Mannal’s, David Vieira, told the Times, "Regardless of party, the nature of that (mailer) was despicable and it should have no place in politics . . . That's why people don't show up to vote and don't have a lot of confidence in government. It's because of this type of crap."

Mannal would go on to a narrow victory to a second term.  The story might have ended there: a false claim that generates a bipartisan reaction and shows a PAC and and its leadership to be craven. 

But Mannal opted to seek criminal charges and that’s where the story changes.

After the flier landed, Mannal called a press conference and joined by his family, filed suit against Jobs First under M.G.L. c. 56 § 42 which states that:

No person shall make or publish, or cause to be made or published, any false statement in relation to any candidate for nomination or election to public office, which is designed or tends to aid or to injure or defeat such candidate. No person shall publish or cause to be published in any letter, circular, advertisement, poster or in any other writing any false statement in relation to any question submitted to the voters, which statement is designed to affect the vote on said question. Whoever knowingly violates any provision of this section shall be punished by a fine of not more than one thousand dollars or by imprisonment for not more than six months.

Mannal contends that any suggestion that he was advancing “his own interests” was a false statement designed to defeat his candidacy.

He’s right, of course, both in terms of normal political discourse and under the terms of the law.

But he should still not prevail in court.  The law should be tossed as I suspect it will be.

Judges should not be put in the position of deciding what can and cannot be said during the heat of a political campaign.  Courts are ill equipped to handle the hurly burly of politics and should not be called upon to do so.

This stems, in part, from mistaken belief that our politics is in greater need for the clarity and finality that only courts can provide. 

What we have is another example in the long train of legal crusades that attempts to turn politics into a criminal enterprise.  Take your pick: the wasted prosecution of Tim Cahill, the hubris of the US Attorney’s office, the largely coerced plea deals of Charles Flaherty and Tom Finneran. 

Yet the normal course of politics corrected the false claim of Jobs First this past fall:  Representative Mannal was reelected.

But I wouldn’t support his complaint even if he had been defeated because, among other reasons, it is not easy to pinpoint with singular certainty the reason why any one incumbent is defeated.

Jobs First and Melissa Lucas don’t deserve our political support. If it is their desire to go down in Massachusetts political history as folks who willingly lies to advance a political agenda, that’s their lot.  It doesn’t deserve any more respect than the equally loathsome Tom Steyer who, in the throes of a heated US Senate campaign, issued ridiculous ultimatums against candidate Stephen Lynch.

 But asking for criminal prosecutions for the words written in the midst of a hard charged campaign is a step too far. This is a case for the political, not the criminal, realm. 

politics by other means, Jobs FIRST, Brian Mannal

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