The escalating campaign to discredit the Brennan Center’s research on television advertising bears an uncanny resemblance to the sham attack ad campaigns that in recent years have made a mockery of campaign finance regulation.
Following the surprising (albeit sometimes confusing) decision of the three-judge panel, opponents of the new campaign finance law are desperate to undercut the Brennan Center’s findings because they make such a powerful case for reform.
Opponents of the new law have not, as one might have expected, reanalyzed these studies or offered their own findings and conclusions based on alternative research. Nor have they provided any counter to the scores of pages of testimony by politicians, party officials, political consultants, interest group leaders and donors who corroborate the findings of the Brennan Center research.
Instead they decided to shoot the messengers. In their briefs in McConnell v. FEC, plaintiffs have dismissed the research as politically biased, fundamentally flawed, riddled with errors and unreliable. Their expert witness, James Gibson, has accused the researchers of manipulating the data to produce the desired results. Columnist George Will opined about "the debasement of scholarship for partisan purposes." The Weekly Standard’s David Tell followed suit: "The empirical evidence McCain-Feingold proponents have offered as the constitutional justification for a key provision of the bill, empirical evidence for which Brennan Center ‘research’ is the source, appears to be fraudulent—deliberately faked."
Sound familiar? Harsh and unsubstantiated personal attacks from seemingly independent voices. Highly selective and contentious bits of information packaged to conjure up a vast conspiracy. Amazing strategic and rhetorical consistency in the nominally uncoordinated campaign to discredit a very inconvenient body of research. And confidence that the media will lend the charges credibility, if only by framing stories in the familiar "he said, she said" crossfire.
I am appalled by the nature and ferocity of the attack on this body of research. I say this as someone who was present when this research was first conceived, served on a Brennan Center committee to explore its policy implications, and testified publicly on its quality and significance.
I am a supporter of the new law and believe its major provisions are constitutional. But I am willing to place on the line my professional reputation, built on more than three decades of work at the American Political Science Association and the Brookings Institution, in asserting that the demonization of this research is bogus and in no way undermines its central conclusions.
Let’s begin with allegations of political bias and professional misconduct. The two political scientists responsible for conceiving, designing and executing this research, Jonathan Krasno and Kenneth Goldstein, have impeccable scholarly credentials and live up to the ethical standards of social science research. Both insisted on the timely public release of their data, which allows anyone in the scholarly or policy community to replicate their studies. Both had strong incentives to conduct the research and report their findings as accurately as possible—for Krasno, a reform proponent, because he knew the findings would be challenged by those who found them inconvenient; for Goldstein, who had no interest in campaign finance issues, because his professional reputation depended upon him producing scholarly papers of the highest quality.
Charges by plaintiffs that the data were recoded to produce more "favorable" findings are ridiculous. As explained in laborious detail in the expert and rebuttal reports of Krasno and Goldstein, the data sets were altered only as part of a normal process of dealing with missing and inconsistent codes. Changes weren’t made for the convenience of reformers but to make the coding as accurate as possible.
In fact, Goldstein reports in his rebuttal statement to the court that of the 31 ads he recoded as part of the 2000 data-cleaning exercise, 26 shifted from election ads to pure issue ads—which worked against the McCain-Feingold case for the bright-line test—and only five in the other way. Why would a politically biased investigator intent on manipulating the data to produce the desired results do just the opposite? Krasno’s rebuttal statements provide comparable explanation and evidence for the 1998 data set.
I believe any fair-minded analyst reading the charges and the responses contained in the court record would conclude that the scholars are ethical and that their research is credible. While raising questions about several specific choices made by the investigators, Judges Colleen Kollar-Kotelly and Richard J. Leon of the district court panel reached essentially that conclusion. As Judge Leon wrote in his opinion, "I find that although the Buying Time studies contain some flaws and shortcomings … those shortcomings do not detract from the studies’ credibility and reliability."
One substantive issue did arise in this contretemps. How would the bright-line test for electioneering communications (ads broadcast near an election clearly identifying a candidate and targeted on that candidate’s constituency) have affected pure issue ads? In Buying Time 1998, Krasno measured this relationship by dividing a numerator (the number of pure issue ads sponsored by groups that identified federal candidates and appeared in the last 60 days of the campaign) by a denominator (the number of pure issue ads sponsored by groups that appeared in 1998). This, in Krasno’s view, best measured the relevant phenomenon: What percentage of pure issue ads would be drawn into the net of regulation by the bright-line test? Krasno’s successor at the Brennan Center, Craig Holman, responsible for Buying Time 2000, was unaware of what Krasno had done (certainly a failing of the Brennan Center in providing the necessary continuity between Krasno and his successor). He used a different denominator—the number of all issue ads sponsored by groups that appear in the past 60 days and mention a candidate. Applying this measure to the 1998 data, he got a result different from Krasno, which produced the e-mails that proved so titillating to the critics.
My professional view is that Krasno’s measure is the appropriate one. Judge Leon thinks otherwise. Using Krasno’s measure, 6 percent of pure issue ads in 1998 and 3 percent in 2000 would have been drawn into the regulatory net of the new law. These figures as well as those based on the alternative measure are available in the Goldstein and Krasno experts reports and rebuttals. No one is trying to hide any information or manipulate data to fit pre-existing views.
Critics have not even challenged the other major findings of the research, including the irrelevance of the express advocacy standard to modern political campaigns and the concentration of party and interest group "issue ads" mentioning or depicting a federal candidate in hotly contested races close to the election.
Candidate-oriented issue ads opened a huge loophole in the ban on corporate and union treasury funding of federal elections. To deny the reality that electioneering ads without express words of advocacy are legitimate objects of Congressional regulation is, again in Judge Leon’s words, "to make a mockery of existing Supreme Court precedent and the regulatory scheme that it has heretofore blessed."
Thomas E. Mann, a senior fellow at The Brookings Institution, was an expert witness for the defendants in McConnell v. FEC.