...while it is troubling that
these purportedly objective scholarly studies... misled our legislators
to enact sweeping revisions to the federal election laws at the
cost of political speech... it should be of even greater concern
that those behind these studies were willing to represent fiction
as fact...
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Enacting
McCain-Feingold By Buying Time
As
the justices of the U.S. Supreme Court draft the decision that will
determine the constitutional fate of the Bipartisan Campaign Reform
Act of 2002 (BCRA), also known as McCain Feingold, they probably
wont be relying on two studies commissioned and circulated
by "reformers" as unbiased scholarly evidence of the laws
constitutionality. Indeed, the rigors of the BCRA litigation have
exposed that the two studies commissioned, conducted, and
published by the Brennan Center for Justice at New York University
School of Law (Brennan Center) and submitted to and relied upon
by members of Congress when passing BCRA were little more
than misinformation fed to our elected representatives with the
goal of enacting McCain-Feingold at any cost.
Not
only has the BCRA litigation proven that the principal findings
of the Brennan Centers studies lack any empirical support,
it has also raised serious questions as to the scholarly nature
and intellectual honesty of the studies in the first place. Thus,
while it is troubling that these purportedly objective scholarly
studies and their principal findings that BCRA was not unconstitutionally
overbroad because it would only proscribe an infinitesimal amount
of constitutionally protected political expression misled
our legislators to enact sweeping revisions to the federal election
laws at the cost of political speech at the core of the First Amendment,
it should be of even greater concern that those behind these studies
were willing to represent fiction as fact in order to stack the
legislative deck in their favor.
A
bedrock of our countrys legislative foundation is a commitment
to maintaining and preserving a deliberative legislative process
whereby elected representatives are able to make reasoned judgments
and cast informed votes based on fact rather than fiction. For this
reason, the Brennan Center owes the Congress and the American people
an explanation about the underlying motivations for and demonstrated
inaccuracies of the studies published and submitted in support of
BCRA as Buying Time: Television Advertising in the 1998 Congressional
Elections (Buying Time 1998) and Buying Time 2000:
Television Advertising in the 2000 Federal Elections (Buying
Time 2000).
As
is now known, the principal findings of Buying Time 1998
that BCRA would not transgress any constitutional boundaries
because, during the 1998 federal election cycle, it would have banned
"just 7 percent of genuine [political] issue ads" fully
protected by the First Amendment "are not just misleading;
as I read them, they are flat out false." That
was the statement of the Brennan Centers own Founding President
E. Joshua Rosenkranz in an e-mail to Craig Holman, one of the co-authors
of Buying Time 2000, discussing the "somewhat troubling"
discovery that the 1998 statistics could not be replicated because
of inaccuracies and inconsistencies in methodology and the data
itself.
The
same is true of the principal findings in Buying Time 2000,
which concluded that "only a fraction (less than 1%) of the
[issue] ads" aired during the 2000 federal election cycle would
have been impermissible under BCRA.
In
fact, perhaps the most striking feature of the four-opinion, 1,575-page
decision from the U.S. District Court for the District of Columbia
on the constitutionality of BCRA is that, among the three judges
who could agree on little else, all three unanimously refused to
accept the principal findings of the Buying Time studies
that BCRA would only ban a small and permissible amount of
constitutionally protected political speech because those
conclusions had no support in verifiable facts or figures.
Judge
Karen LeCraft Henderson ruled that the Buying Time studies
were "based on a flawed methodology and [are] therefore unreliable
as evidence," and, in any event, she concluded that "the
record as a whole suggests that BCRA would prohibit too much protected
expression anywhere from 11.38 per cent to 50.5 per cent
of (what even the [BCRA] defendants characterize as) genuine
issue ads broadcast during the 60 days before an election in a typical
election year."
Judge
Richard J. Leon, for his part, rejected the findings of the Buying
Time studies because they measured ads "that never would
have been regulated by BCRA." After recalculating the data
for himself, Judge Leon found that the corrected higher percentages
"14.7 percent and 17 percent of the ads" that would
have been prohibited by BCRA in 1998 and 2000, respectively, were
fully protected by the Constitution under the Brennan Centers
own definition demonstrated a "realistic danger that
the statute will significantly compromise recognized First Amendment
protections" through "real and substantial" overbreadth.
Finally,
even Judge Colleen Kollar-Kotelly, who voted to uphold BCRAs
prohibitions on political issue advertisements, rejected the principal
findings of the Buying Time studies offered as evidence in
support of BCRA.
What
is even more disturbing is the apparent bias underlying the Buying
Time studies from their inception. In the very first grant proposal
to the Pew Charitable Trusts for Buying Time 1998, entitled
"Issue Advocacy: Amassing the Case for Reform," former
Brennan Center political scientist Jonathan Krasno explained that
the purpose of the study was "not simply to advance knowledge
for its own sake, but to fuel a continuous multi-faceted campaign
to propel campaign reform forward."
Such
an explicit political motivation was also made part-and-parcel of
Buying Time 1998 as demonstrated through the Brennan Centers
promise that the study would be abandoned midstream and the results
never published if the data did not support more stringent campaign
regulations.
In
a letter from the Brennan Center to the Pew Charitable Trusts, Founding
President Rosenkranz wrote that "whether [the Brennan Center]
proceed[s]
will depend on the judgment whether the data provide
a sufficiently powerful boost to the [campaign] reform movement."
The
same political motivation also guided Buying Time 2000. In
fact, Professor Kenneth Goldstein, one of the authors of Buying
Time 2000 and a consultant for both Buying Time studies,
acknowledged that the Buying Time 2000 study would be "designe[d]
and execute[d]
in a way that would help move the campaign
reform ball forward."
Moreover,
the bias underlying the Buying Time studies affected not
only the way they were "designe[d] and execute[d]," but
also the way the Brennan Center researchers manipulated and analyzed
the raw data. In fact, Judges Henderson and Kollar-Kotelly went
so far as to note that someone connected with the studies tampered
with the coding decisions of the student coders, a conclusion also
noted in the popular press.
In
short, the data used for both of the Buying Time studies
was derived from surveys filled out by Professor Goldsteins
students, who were asked to determine whether the "purpose"
of each ad they reviewed was to "provide information about
or urge action on a bill or issue" (an off-limits and constitutionally
protected "genuine" issue ad, according to the Brennan
Center), or, alternatively, whether the ads "purpose"
was to "generate support or opposition for a particular candidate"
(a proscribable and constitutionally unprotected "sham"
issue ad, again according to the Brennan Center).
Yet,
on multiple occasions, the decisions of the student coders were
overruled by Brennan Center staff. In fact, as noted by Roll
Call in an article published on May 15, 2003, the Brennan Center
went so far as to call Professor Goldstein "on his cellphone
while standing at the baggage carousel at the West Palm Beach airport"
to ask his opinion about whether selected student coding decisions
correctly categorized certain ads as constitutionally protected
"genuine" issue advocacy.
According
to the article and Professor Goldsteins deposition, as he
waited "for his luggage, the Brennan Center writers read to
him the text of the ads and asked his opinion on whether they were
genuine or sham issue ads. [Professor] Goldstein, unable to view
the ad storyboards at the airport" as his students had
in making the original coding decisions "nonetheless
overruled many of the conclusions of his students and ordered that
the ads his students believed were examples of genuine issue advocacy
instead be coded as sham issue ads intended to affect an electoral
contest."
Those
were not the only coding decisions overruled by the Brennan Centers
staff. A review of the actual handwritten student coding sheets
shows that the students believed a full third, 10 of 30, of the
ads that would have been prohibited by BCRA in the 1998 federal
election cycle were "genuine" issue ads. But when Buying
Time 1998 was published and released to the public, the number
of "genuine" issue ads had dropped precipitously from
the 10 identified by the student coders to only 2. In other words,
at some point before publication, someone overruled the student
coders and switched 8 ads, or more than a quarter of the total,
from the "genuine" to "sham" category.
Most
egregiously, these misleading manipulations of the data were repeated
in the later Buying Time 2000 study. As demonstrated by the
record, similar re-coding of ads from "genuine" to "sham"
occurred in that study, as well. This conduct led Judge Kollar-Kotelly
the jurist most sympathetic to BCRAs more stringent
campaign limitations to observe: "I am troubled by the
fact that coders in both studies were asked questions regarding
their own perceptions of the advertisements purposes, and
that these perceptions were later recoded.
The principal
casualty in this regard are the conclusions the Buying Time
studies make regarding the percentage of genuine issue
advertisements captured by BCRA."
Judge
Henderson agreed, noting that "[t]he Brennan Center and the
authors of the Buying Time reports sought to achieve a certain
result and therefore sacrificed scientific objectivity." In
fact, when asked in his deposition whether he thought the Brennan
Centers conduct was "consistent with scholarly behavior
of honor and seriousness as a member of the learned profession,"
even the BCRA Defendants own expert, University of Michigan
political scientist Arthur Lupia, was forced to admit, No,
that I do not.
These
facts cause great concern, especially since, as the Brennan Center
itself has acknowledged, the "real contribution to the [campaign
reform] debate came with [Brennan Centers] unprecedented empirical
work." It is certainly true that the "Congressional
Record was rife with references to the [Brennan Centers]
data and [its] analyses at every step of the way" in enacting
BCRA. That is, indeed, why these revelations of research manipulation
are so appalling.
Despite
public relations efforts to do "damage control" and deflect
media interest in the manipulation of the research, the facts now
seem to make it clear that the Buying Time studies were not
part of an "open and honest discourse" or "nonpartisan
agenda of scholarship, public education, and legal action that promotes
equality and human dignity, while safeguarding fundamental freedoms,"
as the Brennan Centers mission states. Instead, the Buying
Time studies appear to be little more than another example of
statistics manipulated beyond all bounds of intellectual honesty
and used as a means of gaining a desired political end. That is
unconscionable when conducted under the aegis of and in collaboration
with an esteemed academic institution, especially when these same
"scholars" then ask our elected representatives to write
their fiction into law that binds us all.
[Posted
October 2, 2003]
[Revised November 11, 2003]
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