A preliminary question:  People I talk to can't answer why we get so much effort at "spin" on a lower-court decision.  Do the spinners think they're affecting the Justices?  Helping shape the briefs?  On some points, the spin seems unsalable, e.g. saying "the Supreme Court will now have the benefit of extensive fact-finding ...."  But on BT, the spin may make sense: eroding that study and whatever rests on it, maybe will make a dent.  That's some of why this discussion has drawn so much fine posting.

     Let's put aside whether, as Bob puts it so well, "the sound is being turned up" ... and whether one agrees with him (as I do) about the extent to which "some in the reform community" assume that their position is moral, opponents are corrupt.  There may be value in trying to get beyond spin about "Buying Time".  At risk of rehashing, two comment/questions:

     1) Mann criticized being "highly selective", but he and others are exactly that on Judge Leon's treatment of BT.  Yes, Leon found BT "entitled to some evidentiary weight."  But Leon's "some evidentiary weight" is gracious gilding:
     a) As Sandler points out, even if Leon gave "some evidentiary weight", note where he came out.  And as Tom Mann did note, Leon rejects the 1998 study's "formula", just as the 2000 study rejected it.  "The results produced by the 1998 formula do not assist this Court ...." (p. 84).
          Mann disagrees with Leon on what measure is "appropriate"-- but Tom, why?
     b) Yes, Leon has findings.  But in only 11 findings (c. 11 pages) does he say "I find"; he has another 35 pages that summarize who said what, which any good paralegal could have written (like so very much of these judges' "extensive fact-finding").
     c) As Leon noted in his opinion, not in his buried "findings", the 2000 study's 2.33% "was later increased by Prof. Goldstein" to 17% (p. 85 ... and Bauer reminds, we shouldn't "select out" the press release's 0.6%).  Yes, such changes may show BT's serious pursuit of accuracy.  But does anyone believe such changes don't open the study to attack as unduly hurried-- and wasn't the rush "political" rather than "professional"?  I.e., didn't changes like that, and dropping the 1998 study's "formula", maybe make BT more solid in some ways, but also make it more vulnerable?  If a study aims at affecting policy, then as Bauer says, mustn't it be extra careful about credibility ... or at least be ready for grenades, not "appalled" (i.e., "shocked, shocked") by them?
      d) Tom et al-- can you fairly "select out" Goldstein's airport phone call?  Even if that call produced changes that cut against the "study's" explicit goal, is that "normal process"?!!  Can Goldstein et al be such naifs they wouldn't realize the damage they were doing to their own work?  Whether sheer scholarship or sheer advocacy, it's sheer astounding that they didn't see the self-inflicted wound.  "Mushy data" or not (I agree with Bruce Cain), the messengers shot themselves.  (The Brennan name hasn't been tarnished before, and this will fade.)
     e) As no one has noted (for reasons I've overlooked?): the eye-glazing dispute over BT's percentages involves (according to plaintiffs' expert Gibson) communications with 30,108,857 households.  Judge Leon wrote this on that: "Defendants' experts do not address this point ...." (p. 308).  Well ... replies to that point?
 
     2) How much weight should be given to even a fine study of past elections, in our constant-flux system?  Didn't views on issue ads before 1996, and after, look very different?  Right now --with or without BCRA-- how sure are you that direct mail won't matter more, maybe much more, than TV?  Magleby's marvelous "The Perfect Storm" and "The Last Hurrah?" leave me doubting the safety (hell, sanity) in trying to drive by watching the rear-view mirror.  And if TV is less effective than heretofore, notice who's able to do direct mail-- non-party groups, not the national parties.  Maybe Karl Rove can find someone good at direct mail?  (BTW-- even if you don't think parties add a crucial value that non-party groups don't, can you think of any other law, ever, that so handcuffs parties and thus so elevates single-interest and single-issue groups?)

     Going beyond the "Weighing in ...." discussion, to campaign finance reform generally:  Some of you may have shared my excitement in reading the latest newsletter from Alliance for Better Campaigns, in which Paul Taylor writes "Until now, campaign finance reform has been mostly about imposing limits.  Looking ahead ...."  Which had me foolishly thinking he'd call for "level up" steps like free mail for challengers, or funding the parties for their direct grants to their own challengers (is that Dan Lowenstein's idea?).  Yes, such steps face problems in implementation, let alone in getting adopted.  But Taylor wants to "reduce costs"-- ah, "free time" and public funding.  Those ideas have so long had so much support in the lobbies, so well-funded by foundations.  When will we get some group working for "level up" steps?

     Last, going beyond campaign finance: What chance of getting any of you, and some group(s), working toward improvement of our redistrictring processes?  The Texas events make it timely, the distance from next cycle makes it timely öand shouldn't anyone who cares about accountability, care about the silence of people like us on redistricting?  Issacharoff wrote valuably recently, and Tom Mann told me not too long ago that he's determined to get onto this.  We need a critical mass who will go at it, no?  If a prof may be an advocate, may I urge that we get beyond the stuck records on campaign finance and start some noise öno, music!-- on redistricting ...?

     Thanx for yr patience,   roy

P.S.  May I vote for Bauer as giving us the best writing style we've enjoyed here?  And now that both Bauer and Mann have been declared  "engaging advocates", I nominate that label as our counterpart to "distinguished Senator".
 
 

--
Roy A. Schotland
Professor
Georgetown U. Law Ctr.
600 New Jersey Ave. N.W.
Washington, D.C. 20001
phone 202/662-9098
fax        662-9680 or -9444