Mutually Assured Super PAC Destruction In Massachusetts?

In the Massachusetts Senate campaign, where Super PACs have already spent millions blanketing the airwaves in what promises to be a spectacular slugfest, the candidates are giving peace a chance.

Or so they would have us believe.

Scott Brown, the Republican incumbent, and Elizabeth Warren, the progressive consumer advocate who recently left the Obama administration to launch a political career, tentatively agreed Monday to reject outside spending by third-party groups, whether traditional political action committees (PACs), party organs like the Democratic National Committee, or Super PACs like Karl Rove’s Crossroads GPS.

Under the terms of the deal, hashed out in both private meetings between the campaigns and publicly-available letters, whenever a third-party group spends money to air an ad attacking (or supporting) a candidate, the potential beneficiary must donate half the sum of the ad buy to a charity of their opponent’s choice.

Neither has anything to lose by coming across as an advocate for stricter campaign finance regulations that would limit or block the use of outside money in campaigns. This is especially true when it comes to Super PACs, the “independent, expenditure-only committees” that emerged in the wake of the 2010 Citizens United and related Supreme Court rulings and have received quite a bit of unfavorable press coverage, including constant satire from Stephen Colbert and Jon Stewart. These groups can accept unlimited donations from individuals and corporations.

“With our joint agreement, we have now moved beyond talk to real action to stop advertising from third-party groups,” Warren said in a statement. “But both campaigns will need to remain vigilant to ensure that outside groups do not try to circumvent what is an historic agreement. This can give Massachusetts voters a clear choice come Election Day.”

The gambit reflects a sentiment on the part of both campaigns that they have a viable path to victory without outside help. Having seen Newt Gingrich’s presidential bid explode in the face of a Super PAC barrage in Iowa, the risks to third-party intervention might be greater than potential gains.

“The more liberal voters in Massachusetts are critical of Citizens United and Super PACs,” University of California at Irvine Professor and election law expert Rick Hasen said. “It was Brown, the Republican, who made the first move here, trying to outflank Warren on the left on this issue.”

In other words, Brown, facing a vigorous challenge during a presidential election year in a Democratic state, may simply be using the hot button issue of money in politics to triangulate and build his bipartisan appeal.

“This is more a reflection that the candidates would like to see less outside advertising by these groups and control the message themselves,” added Anthony J. Corrado, a campaign finance expert at Colby College. Barack Obama’s successful 2008 campaign famously urged outside spending to focus on turnout and not on television advertising, preferring top-down management of paid media efforts by his strategists and consultants.

“I think it is very unlikely to be successful,” Hasen said of the proposed pact. “Super PAC spending can be very effective because it’s likely to be negative. Even if candidates are sincere, there’s no reason to think supporters of a candidate will actually [hold their fire].”

Instead of being a genuine attempt to squelch the influence of special interest money on the campaign, then, the jostling over the Super PAC cease fire is mostly about political positioning.

“Logistically, the devil’s in the details,” said David Paleologos, director of the Suffolk University Political Research Center. “Ultimately, who’s going to be against a peaceful, positive campaign? Their intentions are honorable. But the road to hell is paved with good intentions.”

Perhaps most important is the thorny matter of Super PACs potentially breaking the law by taking queues — even to remain on the sidelines — from candidates. Any coordination between candidates and Super PACs calls into question their purported independence, as Colbert and Stewart have been reminding us with their on-air antics.

“The more a candidate tries to tell a Super PAC what to do, the more likely they’ll be subject to a complaint before the Federal Election Commission,” Hasen said.

There’s also the stealthy nature of Super PAC activity. Even when they can be reached, the groups are extremely tight-lipped about their plans and focus in the 2012 elections. And they have no obligation to adhere to a pact between the candidates.

“We don’t comment on specific strategy for any races that we may or may not be involved in,” said Nate Hodson, a spokesman for Crossroads GPS, when asked whether his group would be open to staying on the sidelines if Democratic Super PACs did the same.

But League of Conservation Voters Senior Vice President of Campaigns Navin Nayak said in a Monday afternoon statement, “While we cannot take directions from any candidate on our independent activities, 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.”

The Massachusetts Democratic Party signaled it would abide the pledge, too. And there is some precedent for a deal like this one being successful.

“Rick Lazio and Hillary Clinton tried to do something somewhat similar in their Senate race,” said University of Kentucky Law Professor Joshua A. Douglas. “The evidence suggests the candidates and the groups, generally speaking, adhered to the agreement.” In that 2000 contest, the candidates agreed not to spend “soft money” on TV ads and also to ask third-party groups not to interfere. It was a fight over the terms of the deal that led to Lazio’s famous march across the stage at a debate, but a pact was eventually reached.

And this even though there was no penalty for noncompliance in the New York race; the candidates decided to “let the public decide.” Which is, after all, who the ads are trying to reach.

“There will be societal pressure,” Douglas added. “Outside groups might think twice. Partially because they don’t want their preferred candidates to suffer the penalty. But the deterrent is more in the societal impetus. Any [outside] ad in Massachusetts is going to be tainted: it’s not adhering to this voluntary agreement the candidates hammered out to improve the discourse in this election.”


Follow Political Correspondent Matt Taylor on Twitter @matthewt_ny


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