The race for the Republican presidential nomination has ended for Marco Rubio. After losing his home state of Florida by a wide margin, he decided to call it quits on Tuesday. There are many reasons why 2016 has not been his year, and those reasons range from the general (He was viewed as the establishment candidate in a very anti-establishment year), to the specific (He once supported immigration reform, which has now become toxic in the current GOP), to the idiosyncratic (his State of the Union response "water bottle moment," as well as his seemingly rote repetition of lines during some of the debates cultivated the feeling that, however new and fresh he might be, he just wasn't ready for prime time). But one very clear factor in Rubio's most recent downturn was his decision to attack Donald Trump on his own level. He went on the stump on February 26th to criticize Trump's "horrible spray tan." He suggested that during a break in a recent debate, Trump "wanted a full-length mirror, maybe to make sure his pants weren't wet." And, most uncomfortably, he mocked the size of Trump's hands...and, by implication, other parts. The change in tone was noticeable. Predictably, the media piled on, with many commentators noting that the campaign discourse had now truly reached the gutter, particularly after Trump felt the need to respond to that last point during the GOP candidate's debate.

It is easy to see how Rubio's advisors might have suggested that change in tone as a conscious strategy. After all, for a narcissist (which Trump is rumored to be), mockery is the greatest wound imaginable. In any case, taking the high road and focusing on substance hadn't really been working that well for Rubio. But the rebound was swift and forceful. His ratings fell, and in March 1st's Super Tuesday primaries and caucuses, the candidate lost 10 out of 11 contests, and 9 others in the days that followed. In an interesting analysis of that collapse in the Washington Post, much of the blame goes to Rubio's decision to go negative and to go personal. As one of Rubio's fundraisers said, "Everyone went, 'What?...Why are you going down to that level?'" The move stripped away the perception of presidential gravitas and seriousness that had been his calling card up to that point. He almost immediately regretted it, but he was not able to recover. As you might expect, there is a lesson in there for courtroom advocates. Attorneys face parallel challenges: a need to balance positive messages with the negative messages, and a concern that the negative (which is often necessary) must still be framed as relevant and fair, and deployed in a way that does not diminish the attacker's credibility. In this post, I will dip into some of the social science research on the rebound effect to negative attacks, and highlight some general lessons that apply to both legal advocates and political candidates. 

Based on the literature, here are three principles to bear in mind when calculating whether the benefits of a negative attack are worth the risks of a rebound.

The Negative Doesn’t Necessarily Work

While we might think, optimistically, that a positive ("We are good") message is always better than a negative ("They are bad") message, the dark side does frequently yield benefits. That is understandable in light of the observed psychological tendency for people to want to avoid costs more than they want to achieve gains when making personal decisions. Negative campaign messages can resonate with that tendency, and they also tend to be more attention-grabbing, more salient, and more memorable than the positive messages. But the potential for a backlash is also well established, and researchers (Fridkin & Kenney, 2012) observe that “People sometimes develop more negative impressions of the candidate airing negative advertisements" which is why it has lately become fashionable for those ads to come from shadowy groups that are "unaffiliated" with the candidate who stands to benefit.

The backlash comes from the fact that the negative message says something about the source's credibility, and about their perception of the audience. Research (Lee & Chang, 2011) shows that the likelihood of a backlash is greatest when the target is high in credibility and the audience is high in sophistication. In that context, Rubio and his advisors might have been tempted to think that targeting Trump and appealing to Trump's supporters, it was worth a shot. But the specific attributes attacked matter as well. Another study (Roese & Sande, 1993) shows that attacks on uncontrollable target attributes (small hands, for example) have more extreme effects -- which means a bigger benefit if it works, but also a bigger backlash if it doesn't. 

You Cannot Generally Distance Yourself

The time-honored political way to distance oneself from a risky attack is to use surrogates. As an establishment candidate, Rubio certainly could have done that. But as part of a strategy to differentiate himself, it seems that Rubio really wanted to do it himself. The Washington Post article referenced above reports on sources in the campaign as saying that it was Rubio himself who wanted to mount the attacks "with a little bit of humor," thinking that this would be more likely to cut through the media clutter. Similarly, litigators might think that good-natured or humorous delivery might be the right sugar to help the negative medicine go down. Research, however, shows that humor may not insulate you from the backlash (Baumgartner, 2013), and that certainly seems to be the case for Rubio's attacks: The nation laughed with him, then immediately thought less of him. 

Another way to distance might be found in what the Greeks called "Apophasis," which means denying that you are making a claim while you are actually making it. So if a candidate were to say, "I am not going to bring up Donald Trump's three marriages..." they're pretty clearly doing exactly that. The problem is that this form of distancing is pretty transparent, and telling a jury "I am not going to call my adversary a heartless corporation," won't carry much sincerity. Juries appreciate directness, so you would be better off either taking responsibility for the claims you make or not making them at all. 

Your Own Credibility Comes First

I have written before that litigants on both sides should be concerned with building their own house before they turn toward throwing stones at the other side’s house. There will certainly be time for tearing down your opponent, but those attacks will be most effective if they come from a credible source. That is why I will typically prioritize the "We did the right thing" message before the "...and they didn't" message. Beyond that, the specific forms and targets of the negative content deserve careful consideration. 

According to the literature (Fridkin, Kenney & Woodall, 2009), there are three dimensions to the attack that mediate its effectiveness:

  • relevant versus irrelevant,
  • civil versus uncivil,
  • and issue versus trait.

Attacks that are shown to be relevant, delivered in a civil manner, and focus on a mutable issue (like their behavior) and not an immutable trait (like who they are) are more likely to be successful and less likely to rebound. In that context, Rubio's problem may have been that he failed on all three: The personal attacks were irrelevant to the office, the emphasis on body and appearance were uncivil, and the focus was on Trump's traits rather than on the office. The gutter-level attacks were just seen as confirming the perception of Rubio as a political lightweight, and all but invited Trump's response of referring to him as "Little Marco," which he did incessantly in the days that followed. 

To his credit, Rubio expressed regret just days after the attacks. "In terms of things that have to do with personal stuff, yeah, at the end of the day it's not something I'm entirely proud of," he said, "my kids were embarrassed by it, and if I had to do it again, I wouldn't." But the problem with the rebound is that once it occurs, you are pretty much stuck with it.