| Subject: Re: Weighing in on the "Buying Time" Controversy |
| From: Rick Hasen |
| Date: 5/25/2003, 9:41 AM |
| To: "Bauer, Bob-WDC" <RBauer@perkinscoie.com>, election-law <election-law@majordomo.lls.edu> |
Conservative critics of reform claim that a curb on issue advertising, specifically the Snowe-Jeffords amendment to the McCain-Feingold bill, would stifle true issue advocacy. However the study found that if the Snowe-Jeffords test were applied to group advertising done in the 2000 election, only .6% of ads captured by the test would have been genuine issue ads. Use of the Snowe-Jeffords standard assures that genuine issue advocacy would escape regulation almost entirely, and that sham issue ads would require disclosure and contribution limits like all other electioneering.
Now, as we now know, none of the judges on the lower court panel would accept the .06% figure. But of greater significance is the intersection of "academic research" and lobbying in the Brennan Center release, which has guaranteed a strong response from critics of the study. This is not a case where the scholarly work was done outside the field of direct political conflict. Instead, the research was commissioned for use in the Congressional debate, on the expectation that it would produce results helpful to one side of the debate; and the Brennan Center release not only makes broad claims for the results, but specifically previews its likely impact on the course of Congressional deliberation. This is not to say that the scholars involved in this research acted improperly, or without regard to what they viewed to be standards of scholarship. Nor is this to suggest that research produced in this way for use in political debates cannot prove useful, or is necessarily impeachable on that ground alone. I am saying, however, that it is dangerous territory, and it leaves the proponents of such projects with a high burden to establish that their lobbying/political mission did not get the better of them--and with the high risk that the outcome, if flawed, will be sharply attacked.
Finally, the "spinning" that has characterized the debate in this field has touched down like a rhetorical tornado on this dispute as well. No doubt those claiming "fraud"--rather than keeping their denunciations focused on methodology and result--have encouraged a high-pitched response by those defending the study or its authors. But the defense, by insisting that the lower court "majority" validated the study, are also wildly overstating their case. One judge refused to assign any evidentiary value whatever to the study; another judge assigned some, but read the results differently than the Brennan Center would have liked and voted to strike down the "primary definition"; and even Kollar-Kotelly is "troubled" by the recoding and rejects the "genuine issue ad" percentages produced by both the l998 and 2000 studies.
Even more striking is Kollar-Kotelly's declaration that the "expert testimony in this case demonstrates the subjective nature of the effort of trying to capture mental impressions of viewers, and illustrates how one person's genuine issue advertisement can be another's electioneering commercial". This, from the judge who agrees with the supporters of the primary definition and voted to uphold it against constitutional attack. As a general proposition, it is much more like a position of the plaintiffs than of the defendants. It exposes the gaps between the public claims on behalf of the study, influenced by prior political commitments, and its actual significance: a gap, in other words, between political ends and academic means that cannot and should not be bridged by spin.
-----Original Message-----I understand that for some readers of the list, large chunks of my post were cut off. You can find the entire post on my blog at:
From: Rick Hasen [mailto:Rick.Hasen@lls.edu]
Sent: Saturday, May 24, 2003 11:03 PM
To: Rick Hasen
Cc: election-law
Subject: Re: Weighing in on the "Buying Time" Controversy
http://electionlaw.blogspot.com/2003_05_01_electionlaw_archive.html#200337464
Rick
Rick Hasen wrote:
Introduction
Controversy has recently swirled around two studies on "sham issue advocacy" done by the Brennan Center for Justice (Buying Time 1998 and Buying Time 2000), relied upon by some of the Congressional sponsors of the BCRA (McCain-Feingold) and discussed in detail in the opinions of the three judge court.
The principal published attacks on the study have been this op-ed by George Will (originally appearing in the Washington Post and any pressure to reach a particular result.
Indeed, it was quite the opposite. The goal was to produce the best social science research possible, regardless of result. I worked closely with Craig Holman and Luke McLoughlin of the Brennan Center on understanding their data, and coding. We exchanged dozens and dozens of e-mails (most of which I think were turned over as part of the discovery in the BCRA litigation). Some of those e-mails went to my trying to understand the methodology of the 1998 study---a study led at the Brennan Center by Jon Krasno, not Craig and Luke. I believe it was my questions to Craig that led to some of the exchanges of e-mails between Craig and Josh Rosenkranz (then head of the Center) that have been used by George Will and David Tell to make it seem as though there was deliberate falsification going on.
Hardly. The issues involved coding questions (for example, what about ads that ran in numerous markets: should they be counted as "unique" advertisements if run in different markets?) and conceptual questions (how should overbreadth be measured?) I took one view (explained on pages 1789-91 of my article) and I think Craig shared that view, while others at the Brennan Center took another view. The debate was open and honest. As I can recall, most of the recoding of student responses moved responses into the category of genuine issue advocacy, leading to worse numbers from the point of view of reform. (See my extended discussion of the "Citizens for Better Medicare" advertisements run in 2000 (pages 1797-99 of my article)). In sum, I saw absolutely no bias or falsification whatsoever with Buying Time 2000. I had nothing to do with Buying Time 1998 but have no reason to believe there were such problems there either.
2. The studies do not constitute poor social science.
As the co-editor of a peer reviewed journal and as a law professor and political scientist, I have seen my share of poor social science (though, happily, I usually get to see very good social science). The Buying Time studies are good social science.
Imagine that you are back in 1998 or 2000 and you are trying to measure the following phenomenon: More and more political advertisements are being run during elections that lack express words of advocacy but appear to be intended to influence campaigns. These advertisements are currently unregulated. One political suggestion has been a "bright line" test to regulate such advertisements, by counting all advertisements as electioneering that run within a certain time period before an election, feature a clearly identified candidate for office, but lack words of express advocacy. Such a test, if adopted, might be attacked as "substantially overbroad," because it might capture advertising not intended to influence campaigns. To answer the question about how overbroad such a law might be, one would need to know what percentage of advertisements not intended to influence campaigns would be captured by the bright line test. (I call these "false positives" in my article.) Having students view the advertisements and code them as electioneering or genuine issue advocacy is a sensible way to get at this problem.
Of course, the study can be attacked. Why students? What exactly was the wording of the questions posed to the students? Judge Henderson latched on to these and other criticisms and concluded that the study lacked credibility. But the majority of judges on the BCRA court (Leon and Kollar-Kotelly) disagreed. Leon agreed the study was entitled to "some evidentiary weight" on the overbreadth question. Kollar-Kotelly offered an extended defense of the study's methodology. One can disagree on the edges, but to argue that the Buying Time 2000 study failed to follow usual principles of social science is wrongheaded.
3. Do the studies prove the constitutionality of the BCRA provisions covering "electioneering communications?"
The BCRA imposes the bright line test for two purposes, disclosure and a ban on corporate and union funded advertising (except through a separate segregated fund) for a 60 day period before the election (or 30 days before a primary).
Do the studies show that the bright line test is constitutional for both purposes, i.e., that the test is not substantially overbroad? This is the big question, and one about which I believe reasonable minds can disagree. Judge Kollar-Kotelly said it did so, and Judge Leon said it did not. Judge Henderson rejected the bright-line test without relying on the Brennan Center data.
The dispute over this question may take place on many levels.
(1) As I detail in my article, there are a number of ways of conceiving of the question of "overbreadth." Is it an empirical test? Should there be balancing? I conclude in my article (though others disagree) that Supreme Court case law establishes that "substantial overbreadth" is primarily an empirical test but that some balancing is inevitable. Thus, it would not surprise me if the Supreme Court upheld the bright line test for some purposes (such as disclosure) but not others (such as the corporate-union ban).
(2) Even accepting that substantial overbreadth is primarily an empirical test, there are different ways of conceiving the empirical measurement. (This is the "denominator" issue referred to in Tom Mann's article.) There are other questions as well, such as whether we should use the total number of unique ads, total number of airings, or total dollar amount spent on the ads to engage in the empirical inquiry.
The bottom line is that to the extent the Court views the overbreadth question as an empirical test, the Brennan Center data (and my own take on the data in the Minnesota article) are the most extensive empirical examinations of the question. There is nothing else out there. Even if the study is not perfect, it is better than the Court going on sheer intuition.
Consider the following few paragraphs from my article, discussing the Court's analysis in a case called Massachusetts v. Oakes (footnotes omitted from my article), where the Court did go with intuition alone:
Oakes involved a criminal defendant accused of violating a Massachusetts law that prohibited adults from posing or exhibiting nude minors for purposes of visual representation in any book, magazine, pamphlet, motion picture, photograph, or picture. The defendant was convicted under the law for taking ten color photographs of his partially nude fourteen-year-old stepdaughter. The Massachusetts Supreme Judicial Court had reversed the conviction. The majority of that court "concluded that [the statute] 'criminalize[d] conduct that virtually every person would regard as lawful,' and would make a 'criminal of a parent who takes a frontal view picture of his or her naked one-year-old running on a beach or romping in a wading pool.'"
A four-justice plurality of the United States Supreme Court refused to apply the overbreadth doctrine in the case because the Massachusetts legislature had in the interim repealed the relevant portion of the statute. Five justices disagreed that the statute's amendment mooted the overbreadth challenge, but those five justices then split two-three on the question whether the statute was substantially overbroad.
Justice Scalia, writing for himself and Justice Blackmun, believed the statute was not substantially overbroad. Referring to a photograph of naked one-year-old running on the beach as hypothesized in the lower court, Justice Scalia wrote: "Assuming that it is unconstitutional (as opposed to merely foolish) to prohibit such photography, I do not think it so common as to make the statute substantially overbroad. We can deal with such a situation in the unlikely event some prosecutor brings an indictment."
Justice Brennan, in contrast, writing for himself and Justices Marshall and Stevens, had a different view of the empirical evidence:
The abundance of baby and child photographs taken every day without full frontal covering, not to mention the work of artists and filmmakers and nudist family snapshots, allows one to say, as the Court said in Houston v. Hill, that "[t]he ordinance's plain language is admittedly violated scores of times daily, yet only some individuals—those chosen by the police in their unguided discretion—are arrested."
Justice Scalia stated that it is the burden of the litigant challenging a statute on grounds of substantial overbreadth to present the empirical evidence, but it is difficult to see how in a case like Oakes a litigant could gather such evidence. Short of commissioning a social scientist to do a survey (which would require asking potentially embarrassing questions of respondents, among other problems), a judicial guess may be all that is available.
Professor Fallon has criticized the Court's empirical approach in this area as requiring "uncabined judicial speculation in areas that are, at best, on the outer fringes of the courts' practical competence." He and others have called on the Court to abandon, or at least modify, this approach in favor of a balancing approach that looks at the importance of the competing interests at stake. In Part III, I add my voice to this criticism, showing that even with empirical evidence, balancing of interests and harms is inevitable and should be done in the open. I begin, however, with the empirical evidence, in particular with data generated from the newly available dataset from the Brennan Center and Professor Goldstein. The dataset allows replacing the judicial guess with empirical evidence in the case of bright-line tests regulating sham issue advocacy. Such evidence does not reveal the constitutionally relevant proportion of false positives, but it does allow a court to make determinations of constitutionality in this area with a good handle on the likely results of its holding.
The Court would do a lot worse without the Buying Time studies than it will do with it, and that is a good bottom line.
-- Rick Hasen Professor of Law and William M. Rains Fellow Loyola Law School 919 South Albany Street Los Angeles, CA 90015-1211 (213)736-1466 (213)380-3769 - fax rick.hasen@lls.edu http://www.lls.edu/academics/faculty/hasen.html http://electionlaw.blogspot.com
-- Rick Hasen Professor of Law and William M. Rains Fellow Loyola Law School 919 South Albany Street Los Angeles, CA 90015-1211 (213)736-1466 (213)380-3769 - fax rick.hasen@lls.edu http://www.lls.edu/academics/faculty/hasen.html http://electionlaw.blogspot.com
-- Rick Hasen Professor of Law and William M. Rains Fellow Loyola Law School 919 South Albany Street Los Angeles, CA 90015-1211 (213)736-1466 (213)380-3769 - fax rick.hasen@lls.edu http://www.lls.edu/academics/faculty/hasen.html http://electionlaw.blogspot.com