Supreme Court campaign finance decision may hinge on flawed database

When the U.S. Supreme Court issues its much-awaited decision on the constitutionality of the controversial McCain-Feingold campaign reform legislation, its arguments may hinge on testimony regarding the validity of a political advertising database used to push for the legislation.

While supporters of the legislation claim the database provides clear and compelling evidence that McCain-Feingold reforms do not infringe upon free speech, this is far from the truth, according to a political scientist who served as an expert witness when the case was heard in a lower court.

James Gibson
James Gibson

“The database is riddled with internal errors and inconsistencies,” said James L. Gibson, Ph.D., the Sidney W. Souers Professor of Government at Washington University in St. Louis.

“It was developed by those with strong ideological objections to the current system of campaign finance (dating back to an earlier Supreme Court decision, Buckley v. Valeo). Therefore, it’s not surprising that creators of the database argue that the damage done to free speech by the legislation is minimal.”

Gibson served as a key witness for the group of organizations challenging the constitutionality of the legislation, known as the Bipartisan Campaign Reform Act (BCRA).

The Supreme Court decision, which may come Dec. 9, will have a dramatic influence on the 2004 federal elections by either maintaining or eliminating the campaign finance legislation that has been credited with giving Republicans a substantial fundraising advantage over Democrats.

The case hinges on whether BCRA infringed upon free speech rights by limiting the use of soft money donations to purchase political advertising. BCRA supporters contend that little freedom of speech would be lost by the legislation and they ground their claims in a database they created, working with the Brennan Center for Justice at New York University School of Law.

Gibson, an internationally known expert on polling, elections, and other issues of government and politics, was hired by the plaintiff’s lawyers to provide an independent analysis of the database and reports proffered by the defenders of BCRA.

Gibson’s principal conclusions are:

  • The database developed to support BCRA is riddled with internal errors and inconsistencies, and was manipulated so as to support the conclusion that the damage down to free speech by the legislation would be minimal.
  • To the extent that the data can be used to support any objective conclusions, Gibson demonstrates that the effect of the legislation is to dramatically limit free speech. For instance, Gibson calculates that more than 30 million group-citizen political communications would be affected by the legislation.
  • Though the legislation would in fact prohibit some “sham” advertisements (in which groups provide improper support to candidates for federal office), the cost to the free of exchange of ideas in election campaigns is enormous and excessive.

“The Supreme Court will undoubtedly confront the free speech issue directly in its decision on the constitutionality of BCRA,” Gibson said.