Purpose

Academic writing has a set of conventions familiar to readers of PS. Journal articles, for instance, generally follow a standard structure— introduction, data and/or model, results, conclusion (often with a call for further research)— that has evolved over time to serve a variety of ends. These goals include informing, impressing, and convincing the audience as efficiently as possible. In litigation, however, any list of purposes is dominated by the need to persuade. We recognized that judges, like any group of highly accomplished and informed individuals, are accustomed to gathering information from numerous sources and making up their own minds. They may be open to new positions—but only to a point. So, where possible, we reminded them of their previous conclusions or, less hopefully, showed how new circumstances necessitated a fresh look at old ideas.

This task was relatively straightforward in the matter of soft money. In Colorado Republican II the justices had already expressed alarm at unfettered fundraising by the parties and explicitly rejected the claim that parties are immune to the concerns about corruption that apply to candidates.⁴

The situation with regard to the provisions on electioneering communications was quite different. The Court's 1976 observation in a footnote to Buckley that electioneering (i.e., the activity subject to regulation) was typified by use of words like “vote for” or “vote against” had been widely interpreted as constitutional doctrine by lower courts. The consensus prior to the case was that the judges were unlikely to consider overturning this “magic words” test. Knowing this and knowing the extensive record of advertising—including ads themselves, and depositions and internal documents from advertisers—submitted by the defendants, our main (and modest) goal was to convince the judges to look at the ads and believe what their own eyes told them. Our best evidence for why they should was the finding that almost none of the commercials aired by federal candidates in 1998 and 2000—all of which by statutory definition were classified as electioneering—used the magic words (Krasno and Seltz 2000; Krasno and Goldstein 2002). This is what our colleagues would recognize as a lack of criterion validity, since candidate ads serve as a criterion group whose purpose is known. The findings of fact from the district court panel (the trial court in this case) reveal that the judges examined hours of commercials and understood that the magic words test had become entirely outmoded.

Audience

Part and parcel of our effort to persuade was the recognition that the judges we addressed are not professional political scientists. That means, of course, that the jargon of academic journals had to be jettisoned, that concepts familiar to colleagues required at least cursory explanation, and that arguments had to be constructed in a more methodical and less parsimonious way. In other words, we devoted considerable attention to the writing. Beyond the prose, the lawyers we worked with urged us to make full use of the depositions from former senators, party officials, donors, and professional fundraisers (fn. 5) on the grounds that judges are used to dealing with individuals' accounts of their actions. We certainly did not shy away from data on dollars raised and spent, an inevitable part of any discussion of campaign financing, but we worked hard to incorporate these sworn statements.

The audience also affected the content of our report. The Buckley court decreed actual corruption or its appearance as the sole justification for congressional regulation of campaign financing, so, although we viewed the overriding goal of protecting the integrity of elections more broadly, we wrote to the justices' concerns (Sorauf 1986). As we noted, this was fairly straightforward with respect to soft money. It was harder to zero in on the corrupting aspect of the epidemic of issue ads starting in 1996. Some of their most notable traits, such as their viciousness, were largely irrelevant to the jurisprudence. We focused on their lack of transparency—issue advertisers were not required to report their receipts and expenditures, and many adopted misleading names to hide their true identities— arguing that the secrecy in which the money was raised and spent facilitated potential corruption. One group we noted, “Republicans for Clean Air,” which ran critical spots against Senator John McCain during the 2000 primaries, actually consisted of two brothers in the energy business who had close ties to the Bush campaign.

The Tension between Advocacy and Detachment

Our attention to the purpose of and audience for our report underscores the gap between writing for scholarly journals and writing for the courts. Nonetheless, we found the line between advocacy (for we certainly advocated upholding McCain-Feingold) and detachment fairly easy to walk. In case we had any trouble, the lawyers we worked with were just as eager as we were to protect our credibility as scholars. We took care to avoid overheated rhetoric and exaggerated claims. For instance, we characterized McCain-Feingold as an important step toward increasing the public's faith in the electoral system (not an instant transformation) and discussed inequalities in the ability and opportunity to influence policymakers that arise from soft money (not the buying of Congress).

As scholars, we could offer the judges perspective on the campaign finance system's broader impact on American politics, along with experience developing and assessing certain types of evidence. So, recognizing the role that parties have traditionally played in mobilizing voters and the special concern that both Congress and the courts have expressed about turnout rates, we set out to examine the parties' soft-money expenditures on mobilization in the 2000 elections. Returning to the original FEC reports, we attempted to replicate and disaggregate LaRaja and Jarvis-Shean's (2001) finding that parties devoted 10.4% of their soft money expenditures ($47 million) to their own voter mobilization. We found that the largest amounts went to vendors for direct mail and telephone, activities that Gerber and Green describe as having virtually no impact on voting (Gerber and Green 2000).⁶

This finding fit with our discussion of party strength. Like other political scientists, we believe that parties are essential institutions of mass democracies and we root for American parties to grow more formidable. Indeed, we made certain to emphasize our common ground with the plaintiffs' experts, especially Milkis and LaRaja. The question for the litigation is whether denying parties their soft money would weaken them. In our view, undeniably impressive as the great sums flowing into and out of parties are, the better measure of their organizational capacity is their ability to do things themselves.⁷

Prediction

Perhaps the most challenging aspect of writing for the courts is the need to predict the future. Academics are usually content to explain the past and occasionally the present, but the future rarely figures in most journal articles. The judges here, however, wanted to know how their decision would affect American electoral politics. This is a particular problem when discussing campaign financing because of its long history of unintended consequences. But there was no shirking, and we attempted to offer informed speculation whenever we felt reasonably confident.

Some of our forecasting involved little more than common sense. We had every reason to assume that, absent regulation, soft money and electioneering issue advocacy would continue to grow. The advantages of being able to move unlimited sums of money without the scrutiny and restrictions imposed on funds within the campaign finance system were simply too great to ignore. We were also certain that the parties would respond to the loss of soft money by redoubling their efforts to raise hard money, so that merely subtracting their soft money receipts from their accounts certainly overestimated the fiscal impact of McCain-Feingold. So far that prediction, made by many witnesses, has turned out to be correct (Mann and Ornstein 2004).

Students of American politics are sensitive to the impact of regulatory legislation on political parties, and so are we. While we could show that the parties' soft money had done relatively little to increase their organizational capacity—at least as we measured it—there remained the possibility that an ongoing supply might eventually benefit them. The problem with that argument from our point of view is that soft money had existed since the early 1980s, and the parties had raised increasing amounts since 1988 and particularly since 1996. Surely, more tangible progress in building parties might have been made during that period. The explanation in our view for why so little had been accomplished is that the soft money had been overwhelmingly raised by candidates and public officials and spent for their benefit. One example is the fundraising scandal that led to the Thompson Committee: President Clinton's efforts on behalf of the DNC in 1996 and the coordination between his campaign and the DNC in promoting his reelection. Moreover, we have already noted the extensive involvement of congressional figures in solicitations by the parties' campaign committees. Even more disturbing, studies of TV advertising in 1998 and 2000 showed that less than 10% of the ads aired by Democratic and Republican organizations mentioned either party by name, while all of them named candidates. Unless the needs of candidates somehow change in the future, we argued that there is no reason to expect parties to invest in themselves.