Although I possess a mere J.D., I do have some thoughts . . .
1) Legislatures base policy on speculation, subjective judgments, political
philosophy, and "mushy data" on a regular basis. In large part, this is a
feature that distinguishes "politics" from "law."
2) The fact that the impact of ads cannot be measured with mathematical
precision (such precise measurement of impact would be impossible even if we
could agree on a foolproof method for distinguishing "genuine" issue ads from
"sham" issue ads) does not mean that no impact exists. Also, the lack of
exact mathematical precision in measuring impact does not mean that a populace
that perceives this impact to be harmful should not prompt its political
decisionmakers to attempt to respond to the perceived harm.
3) In light of the fact that most of us would agree that federal judges are
less competent to make political judgments (not democratically accountable,
fewer factfinding tools, problems of political thickets, etc.), do we want a
judge to make "subjective judgments" about whether he or she personally
believes an advertisement influences an election? Or is it better that judges
also review studies of whether citizens believe particular ads influence
elections? I would agree that there is a danger of a politically-motivated
judge combing through various studies and selectively emphasizing facts that
support his or her predetermined conclusion--but that is a danger in any type
of case. Parties regularly craft studies and present experts that testify on
sophisticated matters (e.g., environmental litigation, insanity defense,
etc.), such evidence is regularly scrutinized by adversaries, and judges
regularly make decisions based on this process. See generally Lon Fuller, The
Forms and Limits of Adjudication, 92 HARV. L. REV. 353, 364 (1978) (asserting
that that judges should rely on affected parties to frame disputes rather than
frame disputes themselves). Granted, what makes this record tough is that it
is intertwined with political facts, assumptions, and judgments. The
political nature of this process, however, seems inevitable if we choose to
have meaningful judicial review of campaign finance legislation.
4) The ultimate question: Should judges: a) make these "subjective
judgments" in a vacuum based on their own political speculation and guesswork;
or b) also consider studies prepared by the parties? To me, the latter seems
to be an improvement over the former.
Spencer Overton
===== Original Message From Bruce Cain <bruce@cain.berkeley.edu> =====
in lieu of doing the mounds of grading that lie at my feet, i have been
following this exchange over the "buying time" study. as one who has done
more than his share of expert witnessing, i would say that "soft" research
based on subjective judgments (students or otherwise, prompted or not) is
an invitation to trouble. it is a problem in the normal course of
research but when introduced into the heated adversarial context of an
important lawsuit, it is never going to stand up to close scrutiny. even
when the data is "harder" such as voting statistics in voting rights
cases, disputes can arise over the choice of methods, the interpretation
of coefficients, etc., but trying to base a policy on mushy data is a very
bad idea. rick, no matter how much care you put into it, mushy data will
always be mushy data. plus the whole analysis misses the subtlety of tv
ads that often work at multiple levels of conscious thinking and
unconscious association. as a general rule, i would recommend that fellow
political scientists avoid such data when they go to court.
secondly, this controversy was a train wreck waiting to happen. without
naming names and funding organizations, certain groups got into the
business of funding research that would help make policy they wanted and
would not fund those of us who could not be trusted to give them the
results that they needed. we need to urge foundations and other funding
agencies to support genuine research and not pre-determined results.
bruce cain
On Sun, 25 May 2003, Rick Hasen wrote:
"Just" a lawyer? Now you'll get yourself into some controversy!
Actually, I have a Ph.D. in political science as well as a J.D.
It turns out that my link to the Clymer article on G.O.P. dominance was
incorrect. The correct link is:
http://www.nytimes.com/2003/05/25/politics/25REPU.html
Rick
Holman@aol.com wrote:
Rick:
I did not know that you are a political scientist.
I thought that you were just a lawyer.
Thanks for weighing in.
Craig Holman, Ph.D.
Public Citizen
215 Pennsylvania Ave., SE
Washington, D.C. 20003
TEL: 202-454-5182
FAX: 202-546-2658
Holman@aol.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
Professor Spencer Overton
The George Washington University Law School
2000 H Street, NW
Washington, DC 20052
(202)994-9794
soverton@law.gwu.edu
http://www.law.gwu.edu/facweb/soverton/