The Process

Neither of us had previously participated in a campaign finance case. Indeed, the more senior of us is not even considered an expert on campaign finance. We received invitations to be expert witnesses based on the belief by RNC attorneys that as “newcomers” to the campaign finance controversy, we might provide fresh support to their long standing defense of political parties. Each of us was charged with writing a report that clarified to the court what political parties do and how these partisan activities were critical features of a healthy constitutional democracy. Milkis emphasized the historical and theoretical underpinnings of the American party system, while La Raja focused on recent party activities, particularly the use of soft money.

We were struck by the integrity of the process for drafting expert reports and the professionalism of the RNC attorneys. We expected to be pressed by attorneys to change the wording or emphasis of arguments, or even to remove sections of our expert testimony. Contrary to our expectations, this did not happen. The attorneys did ask us to focus on certain issues and to present evidence in a style that would be more accessible to the court. For example, we were asked to use graphics (not tables), and to avoid the use of social science concepts that might not be familiar to non-academics. Even V. O. Key's well-known tri-partite classification of parties—party in the electorate, party organization, and party in government—the attorneys advised, was too recondite for our audience. The lawyers undoubtedly influenced the scope and style of our reports, but the basic arguments and evidence we presented went unchallenged even when these did not fully support the position of the plaintiffs. Indeed, in criticizing our drafts, the attorneys urged us to be less polemical and more analytical than we were inclined to be. Rather than pressuring us to focus like a laser on recent events and BCRA, the attorneys encouraged us to develop our theoretical understanding of parties and their place in history. A panoramic perspective, they told us, which fleshed out the critical constitutional role political parties had played in making American democracy possible and the way progressive reforms, born of the early twentieth century, and cresting in our own political time, had infringed on this constitutional role, was of great interest to them, and might very well resonate with a critical mass of federal judges.

Of course, we knew we were part of a larger “campaign” to heighten the salience of issues favorable to the plaintiffs. While the defense wanted to focus the court on corruption, the plaintiffs were clearly eager to raise the prominence of issues such as the right of association and federalism. We endorsed an emphasis on these issues; in fact, the plaintiffs recruited us because our scholarship focused on them. Our challenge in writing expert reports was to be persuasive—even ardent—but to maintain a sufficient detachment that did not question our credibility as scholars. In this spirit, we readily acknowledged areas of agreement with the defense and raised points of uncertainty in our own findings, but these efforts to find common ground were subordinated to the pressing task of highlighting our criticisms of BCRA.

Even as we found being expert witnesses to be both challenging and exciting, we were not sorry to see this work come to an end. Given how much time and stress the court case involved, it was difficult to maintain our commitments to scholarship and teaching. Not only did we invest considerable effort in drafting and re-writing testimony, we were called upon to assess the research of the expert witnesses for the defense, to appear at meetings with attorneys, and to prepare for cross-examination. Of course, we would be less than honest if we did not acknowledge that we were well compensated financially for these activities, and that this was a partial motivation for taking on these burdens.⁴

A more important concern for scholars is the use of evidence in courts, which in some ways rubs against our professional norms. It will come as no surprise to readers when we say the court process is adversarial. Although it is not uncommon for scholars to be adversarial in their personal style, professional norms demand that we review and criticize research as a means of testing assumptions, findings, and conclusions with the ultimate goal of building knowledge. In the courts, however, criticisms through rebuttals and cross-examinations are intended as devices to undermine or neutralize the claims of opponents. The goal is not to build knowledge but to champion your side's arguments at the expense of the opposition. Most glaring is that there is no tolerance for changing perspectives during the course of your research (learning!), or acknowledging the weak predictive power of some of your conclusions (humility!). In particular, the depositions or crossexamination are a game of “gotcha,” where a change of opinion is taken as sign of intellectual dishonesty rather than willingness to adjust conclusions based on new knowledge.

In spite of the inherent tension between legal advocacy and scholarship, the opportunity to be expert witnesses gave us a new awareness of the importance and limitations of our work. It was flattering to have distinguished attorneys tell us that our scholarship was relevant. We had long told our students this— but it was exciting to have this claim, which we only half believed, so dramatically confirmed in such an important public controversy. At the same time, the experience of being “expert” witnesses could be very humbling: at every stage of the process we discovered how difficult it was to reflect on the implications of our research for a burning and complex public policy matter and to marshal evidence that, literally, would hold up in Court.

Did Our Participation Matter?

As much as we enjoyed our participation as expert witnesses, and as much as we believe our colleagues for the defense were exceptional witnesses, in the final analysis, social science played a marginal role in deciding McConnell. The Supreme Court primarily resorted to established court doctrine on campaign finance regulation and a rather thin understanding of politics. Because our views did not prevail, we suspect some might characterize our response as sour grapes. But a fair evaluation of the court record suggests that political science did not help the Supreme Court make an informed decision about what became the central issue in the case, namely, the degree to which the campaign finance system was corrupting the political process.

Demonstrating the relationship between money and votes has never been easy. In spite of heroic efforts to expose quid pro quo arrangements, political scientists have not been able to offer much empirical support for the proposition that political contributions influence legislative decisions. This is not to say that money does not matter in politics. The value of money can be seen in how groups with resources have greater access to lawmakers, additional opportunities to support favored candidates, and the means to communicate their message in various expensive media. These resource advantages may create unequal influence on political debate but not necessarily corruption. The link between inequality and corruption was assumed as self-evident by the majority in McConnell; the defense attorneys and Supreme Court ignored the practical distinction between access and corruption so as to adhere to acceptable judicial doctrine on campaign finance regulation. Since Buckley v. Valeo, on which the McConnell majority relied extensively, the Supreme Court had made clear that the elimination of actual or apparent corruption is the only acceptable basis under the First Amendment for regulating political speech through campaign finance restrictions. Unwilling to challenge deeply rooted legal precedent, the justices who upheld BCRA implicitly gave legitimacy to a very broad understanding of corruption, thus lowering the constitutional barrier to a continual tightening of restrictions on campaign finance practices.

The defense team understood the commitment of critical swing votes on the Court, such as Sandra Day O'Connor, to stare decisis and wisely pursued the familiar corruption logic in defending BCRA. Nevertheless, because the defense offered no evidence of quid pro quo corruption related to soft money donations, and a majority of the lower court, charged with fact-finding in the case, found no evidence of actual corruption and no statistical support that political contributions affect legislative votes or outcomes, the McConnell majority focused on the appearance of corruption: the Court emphasized anecdotal evidence gleaned from the testimony of political insiders and party mavericks, such as John McCain, Russell Feingold, Warren Rudman, and Alan Simpson, that the parties' reliance on soft money gave large donors unfair access to policy makers. These statements apparently had considerable effect on the majority opinion because they were cited many times as evidence. The justices, however, ignored expert testimony showing the inconclusiveness of studies on the relationship between money and votes. Even though the case for the corrupting influence of soft money contributions has been hotly disputed among political scientists, the Court asserted that, “Both common sense and the ample record in these cases confirm Congress' belief that they do” (Slip Opinion, Stevens and O'Connor, 35). Political scientists were noticeably missing from this ample record.

Political science studies of electioneering communications did make significant contributions in McConnell. We tip our hats to our colleagues for the defense who provided empirical research on “issue ads,” which could be funded with nonfederal funds. These advertisements avoided the “magic” electioneering words “vote for,” which would have triggered the requirement that they be funded with hard (federally limited) funds; however, many of these “issue” ads merely attacked the candidates of the opposition without making any reference to political parties, their platforms, or the policies they supported (Krasno and Seltz 2000; Holman and McLoughlin 2001).⁵

From our rather naïve perspective, the Brennan Center reports seemed beside the point. Most important, these studies did not demonstrate that airing issue ads with soft money tended to corrupt politicians. Nonetheless, the wisdom of the defense strategy became apparent in reading the majority Supreme Court opinion, which put more emphasis than previous Supreme Court decisions had on preventing the appearance of corruption. The Brennan Center reports buttressed claims that the integrity of the electoral system was undermined by electioneering ads that masqueraded as issue ads. With the support of expert witness testimony from Sorauf and Krasno, justices made the inference that these issue ads were increasing the degree of corruption in the political system by creating an appetite for parties to raise and spend soft money. The defense did not need to demonstrate actual corruption so long as they could convince a majority that federal elections appeared awash in soft money issue ads.

We believed that the Brennan Center studies were not so much wrong as radically incomplete. We felt it was important to point out that contemporary parties were doing more than simply spending soft money on issue ads. Even in the 2000 election cycle, when media spending was high, combined spending on mobilizing voters, distributing grassroots materials, and paying the administrative expenses of the state party organizations amounted to more than that spent on issue advertisements (La Raja 2003).

Supreme Influence. Political scientists played an important role as expert witnesses before the Supreme Court in McConnell v. FEC. Photo: istockphoto.com/Christine Rondeau.

Our fear was that the sudden loss of funding on so large a scale would be a devastating blow to parties, especially at the state and local level. But much more was at stake. The other, more critical, part of the story, which the defendants' political scientist experts either overlooked or substantially understated, was that BCRA left special interest groups largely free to continue their recent, massive use of non-federal funds to define the terms of political debate. Whereas BCRA would prohibit national parties from using non-federal funds for issue advocacy, interest groups could continue to use non-federal funds for issue advocacy, albeit with restrictions in the final 30 days before a primary and 60 days before a general election. We predicted that the elimination of parties' use of nonfederal funds would not reduce “sham” issue advertising. Instead, more funds would flow to interest groups that aired issue advertising. This shift in the balance of power between broadly based parties and special issue interest groups, a shift that favored, to use E. E. Schattschneider's classic characterization, “pressure politics” over “party politics,” would in our view be one of the most significant and harmful legacies of BCRA (Schattschneider 1960, Chapters 2, 3).

We were deeply disappointed that the Supreme Court ignored this warning. To do so seemed out of character among justices, such as O'Connor and David Souter, who prided themselves on a pragmatic understanding of jurisprudence. In closing remarks, the Court majority underscored its pragmatism by acknowledging that “money, like water, will always find an outlet” (Slip Opinion, Stevens and O'Connor, 118). would find an outlet that was less accountable and constructive than when it flowed through the political parties.

Our concern was exactly this—that under BCRA, money Our efforts to place BCRA in a broad historical context also appeared lost on the Supreme Court. In our reports, we tried to convey the unanticipated consequences of attempting to cleanse politics too zealously. We pointed to earlier reforms that drained parties of their vitality, and spurred the prominence of outside groups with little stake in fostering a consensus that made representative government practical. Since the dawn of the twentieth century, we acknowledged, many factors had threatened the indispensable yet fragile place of parties in American politics, including the growth of the mass media and the development of a mass entertainment industry. But these forces, we pointed out, would have been far less debilitating were it not for reforms such as the direct primary, registration laws, and campaign finance reforms. Encouraged by the plaintiffs' attorneys, we hoped that our historical testimony would persuade the Court to leaven its overriding concern about corruption with an appreciation for how reforms tend to alter the balance of power among political parties, interest groups, and candidates. In the end, however the Supreme Court's majority scorned the respect that both we and the political science experts for the defense shared. Political parties were blithely viewed as the mere creatures of candidates and special interests, not as collective organizations with a past and a future (Slip Opinion, Stevens and O'Connor, 40–42).

Our reports and those of our colleagues on the other side did gain a careful hearing in the lower court.⁶

Conclusion: Political Science and Public Policy

In spite of our disappointment with the outcome of this case, we believe it is important for political scientists to participate in public forums such as McConnell. Political scientists have accumulated an impressive body of knowledge relevant for policy decisions and our professional norms of systematic analysis and peer review have wide legitimacy outside the academy. Given the subject of our studies, we have an especially strong obligation to contribute to the public welfare with our research where appropriate. Indeed, if we do not participate, others may choose to use our research for public policy in ways we did not intend. We have an obligation to ensure that our work in the public realm is not misinterpreted or misused by advocates for different sides of the debate.

We also believe the participation of political scientists in McConnell enriched scholarly activity. The issues raised in the case relating to political parties, interest groups, campaign advertising, public opinion, and voting encouraged us to transcend narrow disciplinary boundaries and to consider the broader impact of election laws on democracy. McConnell quickened the pace and intensity of ongoing debates among students of campaign finance and, more broadly, political parties. We benefited immensely from the institutions of our profession that enabled us to participate in stimulating discussions and debates. Forums such as the meetings of the American Political Science Association and the many vibrant regional associations, as well as those of the nonpartisan research organizations such as the Campaign Finance Institute, The Brookings Institution, and The University of Virginia's Miller Center of Public Affairs, greatly enriched the experience of working on this case. These exchanges reminded us that above all we are scholars and provided an important buffer against the adversarial court system, which tended to reduce our reports and rebuttals to point-counterpoint exchanges bereft of genuine dialogue. Through exchanges at these forums those of us who worked for the plaintiffs and defense held each other accountable for arguments in court cases, even as we maintained a mutual respect that was remarkable given the stakes at hand.

Nonetheless, although we strongly urge our colleagues to participate in public affairs, and are proud of our efforts as citizen-scholars, political scientists must be realistic about how the courts and other political institutions use our research. Our experience testifies to the fact that the courts may not be equipped, or willing, to interpret and use much of the evidence that political scientists provide, particularly on issues where the courts have a well developed doctrine of their own and an extensive legal history. As we learned in McConnell, the courts will make their own inferences about what the facts mean; we should not be surprised when courts choose “their” theories over “ours” when trying to make sense of evidence. In McConnell, it seemed, the majority of the justices assembled around a familiar anti-corruption argument to justify their decision. Similarly, the four dissenting opinions stressed traditional freedom of speech arguments, thus ignoring our efforts to shift the debate to the critical role that political parties had played in making constitutional democracy practicable. Our experience brought to mind Justice Holmes' comment that, “It is the merit of common law that it decides the case first and determines the principle afterwards” (Quoted in Menand 2001, 338).

In the end, our experience as expert witnesses provided us with a poignant dramatic lesson on the uneasy place political parties occupy in American constitutional government. The constitutional role of parties, broadly understood, speaks to the most fundamental issue that divided us from our colleagues in McConnell v. FEC. We respectfully disagreed with the claim of Krasno and Sorauf that parties possess “natural” advantages over interest groups (Sorauf and Krasno 2003, 39). Parties always have had an indispensable but fragile place in the political life of the nation. American political culture, dominated by individualism, privacy, and rights, has bestowed important standing on interest groups. The power of interest groups, always significant, has become all the more so since the early part of the twentieth century. With the growth of big government amid the development of a complex commercial society, interest groups have become imposing rivals to political parties, capable of pressuring government to enact policies that benefit small constituencies at the expense of the general public.

Our opposition to BCRA appears to countermand Putnam's importunity that citizen scholars become the mavens of progress. Political science, he laments, has been the “profession of three nos: no problem, no solution, no reform” (Putnam 2003, 250). We are not opposed to reform; as our expert reports reveal, we would have supported a more moderate version of reform, one that would have restricted the use of nonfederal funds for mass advertising. That we take a more circumspect view of reforms than do our colleagues who supported BCRA follows from our fear that the role of parties in strengthening civic culture has been threatened by public policy carried out in the hope of making the political process work more purely—to diminish, if you will, the politics of our democracy. To be sure, some reforms have strengthened the public accountability of the party system. The disclosure rules enacted since the mid-1970s have made public the alliances the parties have formed with donors and interest groups; these requirements have given voters a great deal of information to evaluate candidates and parties.⁸

It is our hope that political scientists will continue to debate BCRA publicly, with attention to the uneasy but critical role that political parties have played in making American constitutional government work. Reformers may fairly claim that BCRA has forced parties to redouble their efforts to raise money from individual donors and to make creative use of the Internet in redefining the meaning of grassroots politics.⁹

The question remains, then, whether BCRA has strengthened or denigrated representative democracy. The truth, we suspect, will be elusive and will be debated among political scientists for some time. It remains to be seen, however, whether political science will significantly influence future congressional and judicial regulation of campaign finance practices. In truth, BCRA is part of an old morality tale, stirred and served up with progressive ideas—a brew that has subordinated parties to the development of an expansive regulatory state. The Democratic and Republican parties will not go away; nor will they lose their ability to raise funds (Ornstein and Corrado 2003). The danger is that they will become so regulated as to lose their connection to society; that they will become ossified parties of administration that can enforce discipline in Congress and raise large amounts of regulated funds, but at the cost of losing their vital connection to the public. Political scientists have long examined and debated how the expansion of national administrative power affects representative government. The imposing challenge is to make this debate part of the campaign finance controversy and to convey its importance to policymakers.