QuestionCan you sue a president for breaking a campaign promise?
Hopes&Fears answers questions with the help of experts. We asked law experts if the public has any legal recourse when it comes to a promise an elected official has made when campaigning.
Freedom of speech gives Americans, presidential candidates included, a tremendous amount of protection. Promises fly from both sides, sometimes in complete disregard of legal ramifications. This freedom allows Donald Trump to declare that he will end Common Core curriculum (he can’t), or Bernie Sanders to promise that he will expand Medicare to cover all Americans (can he?).
Fortunately for elected officials, promises made during a campaign are not written contracts they sign with American citizens. Rather, they’re good (and sometimes very, very bad) public relations moves that will get them into office if they play their cards right. Promises not kept in office may come under intense media scrutiny, but do broken campaign promises have any legal standing in court? Essentially, can your average citizen sue the president for a promise not kept?
Hopes&Fears reached out to election lawyers and experts in campaign law to see if the public has any legal recourse when it comes to a promise an elected official has made while campaigning.
Senior Counsel at the Campaign Legal Center; Served as General Counsel for Federal Election Commission
The short answer is no. They would not have any legal recourse other than voting the person out of office, or if their jurisdiction has a recall, they can try to recall the person from office. In terms of directly suing the candidate or officeholder, it’s hard for me to see what course of action you would have for a variety of reasons.
One is that most of the promises made are seen as political, and are somewhat vague. Second, they’re made generally to the public. Then, there’s also this concept of political question. [Statements] such as “I will lower taxes” or “I will increase employment” can be seen as political questions. Ironically, if the candidate made a very specific promise to a constituent and said “I will help lower your property taxes” or “I will help vote on this bill to lower your property taxes” if you financially support me, that would probably be considered a bribe. It’s frustrating to constituents, but, in the end, they do have something they can do, they can vote the person out of office.
I don’t know of a precedent where someone has attempted to sue over a promise made; that doesn’t mean it doesn’t exist. I’m just not aware of any. But there are clear cases of recalls, and that’s usually because in their general performance they’re not following through. And then obviously people lose elections because they’re promising things they can’t deliver.
There’s a concept of the law, standing, which is who has the right to sue for something. Just because you don’t like something doesn’t mean you have the right to sue. It would actually have to harm you in some way. As a member of the general public, it’s hard to see how you would have the right to sue over that statement. The first amendment pretty much allows them to say what they want to say.
The closest you could come is, if you did contribute to a candidate based on a certain set of expectations and what they said; let’s say a candidate put out a plan on what they intended to do when in office, and you contributed to them based on that. There’s a theoretical possibility you might be able to sue for your contribution back, but, again, you get into this hazy area where, does that mean your contribution was a bribe to do a specific act? [If] the way they acted in office was totally different than what they specifically promised they would do, then theoretically you might be able to run a lawsuit, but I doubt it. And it would only be for a contribution; unfortunately you can’t get your vote back.
From the October 15th Federal Election Commission report via Politico
Donald Trump's impossible
presidential campaign promises
"I'm putting the people on notice that are coming here from Syria as part of this mass migration, that if I win, they're going back."
The Department of Homeland Security has named Syria a Temporary Protected Status (TPS) Designated Country. According to the U.S. Citizenship and Immigration Services, "individuals who are TPS beneficiaries... are not removable from the US." Forcible return of refugees to their country of origin, referred to as "refoulement," also violates the 1951 Convention relating to the Status of Refugees.
"Every car and every truck and every part manufactured in this plant that comes across the border, we're going to charge... a 35% tax."
Only Congress has the power to levy new taxes. According to Sean McAlinden of the Center for Automotive Research, "Mr. Trump’s tax would violate the current North American Free Trade Agreement, NAFTA, for most cars and car parts sourced from Mexico.... under NAFTA, new vehicles and parts containing 60% North American manufacturing content are allowed tariff free access to all three countries."
"End" birthright citizenship
So-called "birthright citizenship" was established as federal law in America by the Fourteenth Amendment's "Citizenship Clause," which states, "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." The President has no role in the proposal and ratification of new amendments.
"End" Common Core
According to the Education Law Center, a New Jersey-based education advocacy organization, ending Common Core in some states could be unconstitutional if thorough changes are not made to state's education initiatives.
"I will be the greatest jobs president that God ever created."
Commentary from God on the matter remains forthcoming.
Sources: DonaldTrump.com, archives.gov, factcheck.org, Washington Square Journal, CNN, Fox News, uscis.gov, Wikipedia
Political Law Partner at Skadden; Co-Author of Ethics Handbook for Entertaining and Lobbying Public Officials; Advised NBC's The West Wing on election law issues
A citizen who votes for a candidate based on a candidate's promise that is not fulfilled essentially has no recourse, even if the voter can somehow prove that the candidate had no intention of keeping that promise.
Some states have the ability to recall elected officials once elected. In those states a recall petition may be initiated. There is no such process for a federal elected official.
Professor of History and Government at the University of Texas; Pulitzer Prize finalist for The First American
In our tort system, anyone can be sued for anything. I doubt that any court would accept the suit, however. The courts generally let the political system run its course.
In any event, the plaintiff would have to show actual harm—a high standard in the political context.
Why elected politicians cannot make legally enforceable contracts with one voter or an entire constituency:
In a common contract, one agrees to surrender a personal legal right (e.g. money, a piece of property, time). However, if a politician makes a promise, it’s not his personal right that gives him or her the ability to act on that promise, it’s a power given by elected office. As such, it can’t be enforced in the traditional way a common contract would be enforced.
In a contract, there are two parties. In the event of a politician’s promise versus the public, who would be the second party? This would be too ambiguous to define because it could be all of the voters in that official’s constituency, or it could be only the people who voted because of that specific promise. Without a clear second party, there are no terms for a contract.
It would be considered a bribe to offer something valuable, such as a campaign promise, in exchange for a vote. Contract law determines that an “unlawful promise or illegal bargain voids a contract.”
Your vote is anonymous, so it can’t be proved that an individual voted for a specific candidate.