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...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...



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 won’t be relying on two studies commissioned and circulated by "reformers" as unbiased scholarly evidence of the law’s 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 Center’s 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 country’s 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 Center’s 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 Center’s 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 BCRA’s 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 Center’s 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 Goldstein’s 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 ad’s "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 Goldstein’s 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 Center’s 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 BCRA’s 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 Center’s 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 Center’s] unprecedented empirical work." It is certainly true that the "Congressional Record was rife with references to the [Brennan Center’s] 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 Center’s 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]