Can a Bipartisan Pact Really Disarm the Super PAC Arsenal in Massachusetts?

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Charles Krupa / AP

Republican Sen. Scott Brown of shakes hands with supporters during his re-election campaign kick-off event in Worcester, Massachusetts, Jan. 19, 2012.

From its start, the race for Ted Kennedy’s old Senate seat seemed destined to be one of most expensive political battles in Massachusetts history. Challenger Elizabeth Warren, bank-scolding darling of the left, and Scott Brown, the Tea Party pinup who swept into office in early 2010 to strip President Obama of his congressional supermajority, are both candidates of national stature. It’s a rare and precious Red seat in a Blue state. Nothing less than control of the Senate may hang in the balance.

And so the money has poured in. Last week, Warren raised more than $1 million in 24 hours, a feat Brown pulled off three days running during his first bid; each raised huge amounts, $5.7 million and $3.2 million respectively, in the final quarter of 2011. The Bay overfloweth, and that’s before you start counting the money being spent by third-party groups. The League of Conservation Voters and the League of Women Voters have combined to spend some $3 million on issue ads that are critical of Brown.  Crossroads GPS, the behemoth Republican super PAC founded by Karl Rove, has aired spots criticizing Warren, for her “extreme” alignment with the Occupy protesters and for glad-handing bankers during her stint at the Treasury Department.

On Monday, however, Warren and Brown signed an unusual agreement to stem the influence of outside money. It marks the first attempt at an explicit multilateral disarmament of super PACs and their ilk since the landmark Citizens United vs. FEC Supreme Court case remade campaign finance law in 2010. Its success, or its failure, could help answer a looming question in American politics: with campaign spending now enshrined as free speech, are we capable of extracting our elections from the swamp of moneyed interests even when we really want to?

In recent weeks Warren and Brown have been jostling over the issue of third-party spending, each trying to claim the mantle of political purity. “I’m pleased Professor Warren has joined with me in signing my People’s Pledge,” Scott Brown said Monday after putting pen to a tweaked version of the agreement the Warren campaign had sent over. “This is a great victory for the people of Massachusetts, and a bold statement that puts super PACs and other third parties on notice that their interference in this race will not be tolerated,” Warren said.

In the most direct sense, their detente is symbolic. By law, campaigns cannot forbid super PACs from buying airtime any more than they can instruct them to run ads; the ban on coordination cuts both ways. Public finger-wagging is the extent of what’s allowed — but in the past, finger wagging has had its success. In 2007, Senator Barack Obama successfully cowed primary rival John Edwards by accusing him of lying when he said he was powerless to call off the independent attack ad dogs. “The fact is this is somebody who worked for John Edwards, for the last who-knows-how-many years, who’s a good friend and colleague of Edwards, who’s now running a 527 that is running ads on behalf of John Edwards,” he said.  “You’re telling me he has no influence over him? That’s not true.” In the 2008 general election, Obama and John McCain both discouraged outside groups from spending on their behalves, directing donors to give to the campaigns instead. It worked. Even now, post-Citizens United, public discouragement has played a role. Newt Gingrich recently expressed disapproval of some of the ads a super PAC run by his former aide aired against Mitt Romney, and the group seemed responsive to his public cues.

Warren and Brown have made their public disapproval of third-party spending well known, but they’re also trying something novel. In addition to sending letters to TV stations and advocacy groups requesting a halt to the deluge of paid media, they’ve devised an enforcement mechanism: the Brown and Warren campaigns will monitor outside spending and donate 50% of the value of each TV, cable, satellite or radio buy on their behalf to a charity of their rival’s choosing. Too many ads touting a candidate or lashing her rival and the official campaign is kaput.

“I think it’s an interesting and commendable effort,” says Paul Ryan, a lawyer for the Campaign Legal Center, which supports stricter campaign finance regulations. “But I’m not entirely convinced it will be effective.” Ryan says the agreement’s bounds will likely be tested by issue ads, which target candidates on specific policy positions, and which spending groups frequently use to skirt limits on direct candidate advocacy under tax law. The pledge makes explicit mention of such ads, but the line between issue ad and candidate ad is blurry.

Though no group has explicitly rejected the pledge, the League of Women Voters came close Monday, insisting that their advertising targeted lawmakers, not political candidates. “The League’s ads ran in April of 2011 in Massachusetts and Missouri, and were issue ads aimed at holding public officials accountable for their votes in Congress,” said national President Elisabeth MacNamara.   “These ads were not in support or opposition of any candidate but in support of the Clean Air Act.  The League does not support or oppose any candidates or parties.” The ads in question castigated Brown for voting against increased emission standards. It’s not clear if the LWV will run more like it in the coming year.

American Crossroads, the national Republican group, registered a different sort of complaint. “Because the agreement allows union phone banks, direct mail, and get-out-the-vote drives – all union core specialties,” president and CEO Steven Law said, “Warren’s latest agreement has loopholes the Teamsters could drive a truck though, the longshoremen could steer a ship through, the machinists could fly a plane through, and government unions could drive forklifts of paperwork through.” Ryan, of the Campaign Legal Center, says Law’s points are valid — although, he notes, there’s nothing to stop Crossroads, or others, from spending their money on their own ground game instead of broadcast advertising. Indeed, one possible consequence of the Brown-Warren pact and others like it is that super PACs may become more involved in direct mail, phone banking and other traditional campaign tactics.

Some groups are heeding Brown and Warren’s call.  The League of Conservation Voters, which ran a bruising campaign against Brown over environmental issues, appeared to cede the issue in a Monday statement, albeit not without taking a parting shot and leaving the door open to more ads. “While we cannot take directions from any candidate on our independent activities,” Senior Vice President of Campaigns Navin Nayak said, “we are inclined to respect the People’s Pledge agreed to by Elizabeth Warren and Scott Brown and we hope that Scott Brown will honor his end of the deal when Crossroads and the Koch Brothers inevitably break it.”

Only one outside spending group, Rethink Brown, a union-backed super PAC, explicitly stated its intention to withdraw from the airwaves, while fighting on “[t]hrough our website… the news media, social media and other means of modern campaigning.” As Law noted, there is already well-established election-influencing machinery for unions to fund off-air.

Even if all the varied interests were to fall in line, the ceasefire would be a fragile one. John Kerry and Bill Weld made a similar pact in Massachusetts’ Senate race in 1996, swearing to stop at $5 million in ads a piece, but the agreement fell apart at the climax of the campaign. Fred Wertheimer of Democracy 21, a nonpartisan campaign-finance-reform group, says there’s nothing preventing a large, last minute third-party ad buy from deciding the 2012 race. “This is hard-nose politics,” he says, skeptical that independent expenditure groups will stick to the campaigns’ rules if they see an opportunity to win. “If it costs the candidates some, that’s not a problem.”

In most races, the interests of donors, supporters and campaigns closely align.  Even advocacy groups, eager to curry favor or access with politicians once they reach elected office, have reason to follow the candidates’ lead. But it’s not happening in Massachusetts. Not yet. Pledge or no, in a campaign this big, outside money isn’t so easily disentangled.

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