Inslee argues for stronger accountability against politicians seeking to undermine elections or incite violence
January 6, 2021, was a pivotal day in America’s history. Attempts to hold elected leaders accountable for their roles in spreading disinformation and inciting a deadly, attempted coup of the U.S. Capitol are ongoing. But Gov. Jay Inslee says the growing numbers of candidates and elected officials who knowingly espouse false information about elections pose a longer-term threat to democracy.
Recent polls show alarming trends in the faith of U.S. elections and acceptance of violence against the government. An Axios-Momentive poll last month indicates more than 40 percent of Americans do not believe President Joe Biden legitimately won the 2020 presidential election, while a Washington Post-University of Maryland poll reveals nearly one-third of Americans believe violence against the government can be justified.
Inslee’s SB 5843 applies specifically to elected officials or candidates who “knowingly, recklessly or maliciously” make false statements or claims about elections and have an intent of inciting lawlessness, undermining an election, or falsely claiming they won. The bill makes such action a gross misdemeanor.
The bill does not apply to instances where an individual has evidence of election fraud.
The bill was heard today by the Senate Committee on State Government & Election. Inslee was first to testify.
“After Jan. 6, I have this question: Do politicians think they have a right to foment violence and degrade our democracy by knowingly lying about elections results? No they do not. “That’s where we’re at in American politics today and it is our future if we don’t act. This is not just our recent past. The horrific insurrection we all witnessed at the U.S. Capitol — and the mob we saw break through the gates here — represent the here-and-now. And they are harbingers of what is to come. Our democracy remains an experiment and we cannot take it for granted.”
The bill, sponsored by Sen. David Frockt, establishes clear parameters intended to preserve the right to free political speech.
Inslee’s office consulted with nationally-known constitutional law scholar, Laurence Tribe, while drafting the proposal. While it’s impossible to speculate on the outcomes of potential constitutional challenges, Tribe believes the bill is written “in a manner that respects the text and purposes of the First Amendment and the precedents construing it.”
Catherine Ross, a constitutional law professor from George Washington University Law School who focuses on the First Amendment, also provided expert feedback to Inslee’s office on the proposed legislation. She testified at today’s hearing in favor of the bill.
“I first learned about Governor Inslee’s proposal from an article in the Washington Post that quoted my work to suggest this bill would face an uphill battle. But on reading this piece I agreed with the governor that these are exceptional times in which lies about the results of the last election pose a realistic threat,” Ross testified. “I thought Washington’s interests were so important I wanted this bill to be done right, and I reached out and offered to help. I consulted and helped craft the language which I do believe addresses the First Amendment problems.”
Watch Inslee’s testimony on TVW.
“We are at a fork in the road,” Inslee said at the closing of his testimony. “We either adopt passivity and the gradual loss of our democracy, or we take action in the defense of the fundamental foundations of democracy. I choose action and I hope you will as well.”
Text of Inslee’s prepared testimony
Thank you, Vice Chair Kuderer and the members of the committee. I am here today in support of Proposed Substitute Senate Bill 5843.
In “Profiles In Courage,” John F. Kennedy mused on four questions that take the measure of one’s fitness for public service:
“Do they have integrity? Do they have unselfishness? Do they have courage? And do they have consistency?”
After Jan. 6, I have this question: Do politicians think they have a right to foment violence and degrade our democracy by knowingly lying about elections results? No they do not.
That’s where we’re at in American politics today and it is our future if we don’t act. This is not just our recent past. The horrific insurrection we all witnessed at the U.S. Capitol — and the mob we saw break through the gates here — represent the here-and-now. And they are harbingers of what is to come. Our democracy remains an experiment and we cannot take it for granted.
Politicians are not above anyone else who would incite violence by knowingly, recklessly, or maliciously spreading lies about lawfully run elections.
The Big Lie, that we can’t trust our democracy to count the votes, has become a weapon. It’s being used all over America — including our state — and it will again incite violence. There are many examples where the law punishes lying on official documents or under oath — and I believe some standard should apply here.
Using their power or popularity, they lie — whether knowingly, recklessly or maliciously — to foment violence against others and against the foundations of American democracy. By asserting a right to violently subvert democracy, they assert the right to overturn the popular will determined by elections, if that’s the only way they think they can achieve power. Their intent is to harm.
This legislation holds politicians such as you and I who have taken the oath to uphold the constitutions of the United States and the state of Washington accountable if we should ever take such a course. A democracy that does not have broad acceptance of election results is a house of sand.
This bill is pro-democracy. It is neutral because it applies to every politician — regardless of your preferred political party — and it is carefully written to protect the First Amendment as well. This legislation confronts an unrelenting threat that is a clear and present danger to our democracy.
My staff worked with some of the nation’s preeminent constitutional and First Amendment scholars — including Laurence Tribe of Harvard Law School and Catherine Ross of George Washington University Law School — to make this bill stronger. No lawyer can ever guarantee a result in court, including Professor Tribe, but he said this bill represents,
“…at the very least a thoroughly sensible, responsible, and good faith effort to address a serious problem imperiling democracy — and to do so in a manner that respects the text and purposes of the First Amendment and the precedents construing it.”
We cannot afford, and we should not have to endure, another insurrection like Jan. 6, 2021.
But violent insurrection is not the only threat to democracy. This bill takes on all attempts to spur violence through election lies. Diminished acceptance of election results threatens our system of government and the people who serve.
This proposal is consistent with all we hold dear. I propose it because my conscience precludes me from standing on the sidelines. I welcome debate on it. This bill preserves healthy debate.
We don’t have to choose between protecting democracy and protecting free speech. There cannot be one without the other. And this bill does both.
We are at a fork in the road. We either adopt passivity and the gradual loss of our democracy, or we take action in the defense of the fundamental foundations of democracy. I choose action and I hope you will as well.
Thank you, Madame Vice Chair Kuderer.