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This is what Citizens United hath wrought

Curiouser and curiouser go the candidates through the super PAC looking glass.

Now both U.S. Senate candidates in Massachusetts say they want “independent” “outside” groups to stay out of their race, let the candidates raise their own funds and air their own TV spots for which they themselves can be held responsible.

So far, sounds kinda familiar. In the presidential race, most of the candidates claim to be upset that their Super PAC allies (to whom they are not allowed to speak directly but instead speak to by announcing publicly what they at least claim to wish their allies would do) are running nasty and inaccurate ads about their opponents.

But, generally (we’re talking mostly about Mitt Romney and Newt Gingrich here, and yes, Gingrich can credibly claim that his side is retaliating for what Romney’s side did to Gingrich in Iowa) it’s hard to believe they mean what they say. After all, the Super PACs are run by their former top political operatives and funded by their own strongest and wealthiest supporters, including many corporations whose identities have yet to be meaningfully disclosed. Romney said in last night’s debate that wishes his political alter egos (or should I say alter ids) would remove inaccurate statements from the ads attacking his opponents but “That’s something that’s completely out of the control of candidates.”

Do you buy it? I don’t.

Sen. Scott Brown
REUTERS/Adam Hunger
Sen. Scott Brown

Now back to the Massachusetts Senate race, one of the marquee contests of 2012. The incumbent Republican, Sen. Scott Brown, rocked the political world by winning the special election after Ted Kennedy’s death, costing the Dems their filibuster-proof Senate majority. The likely Dem nominee to challenge Brown is Harvard Prof. Elizabeth Warren, whose enthusiastic attitude toward the creation of the new Consumer Financial Protection Bureau was so alarming to Repubs that they preempted President Obama’s plans to name her as the agency’s first director. This Senate election shapes up as a serious grudge match and is one of the relatively few prospects for a Dem pickup in 2012.

OK, so here’s the deal: Warren and Brown both say they want the outside groups to stay out of their race. But everybody says that and mostly it’s just for show.

So far, sounds kinda familiar. In the presidential race, most of the candidates claim to be upset that their super PAC allies (to whom they are not allowed to speak directly but instead speak to by announcing publicly what they at least claim to wish their allies would do) are running nasty and inaccurate ads about their opponents.

Elizabeth Warren
REUTERS/Kevin Lamarque
Elizabeth Warren

But maybe this version of the shadowplay might turn out something more than gum-flapping because, as reported by Politico:

“Warren said Monday that the campaigns could agree on a common response if third-party groups become active on the airwaves and ignore their demands. ‘That’s certainly within our control,’ she said.

“The back-and-forth started Friday, when Warren responded to Brown in a letter saying she wanted to create an ‘enforceable’ pact to seek an end to radio, TV and online advertisements by outside groups, saying there should be ‘consequences’ for the campaign that does not honor the agreement. The two spoke later that day, and their campaign managers are talking Tuesday about setting a time for a future meeting.

“Asked Monday if she could lay out consequences for not adhering to any agreement, Warren would only say that she wants ‘something that actually means something. No more politics as usual.'”

I won’t try to guess what kind of enforcement mechanism might be devised. And I still suspect that one or both of the Massachusetts candidates is bluffing. But if they came up with a mechanism that works, it could set a precedent for those who want to more than just pretend that they don’t want their best friends to flood the airwaves with attack ads on their opponents for which the candidates can claim they are not responsible.

Comments (15)

  1. Submitted by Eric Ferguson on 01/17/2012 - 03:28 pm.

    During last night’s debate, Romney said he thinks donors should be free to make unlimited donations to campaigns, so candidates can use the money to control their own messages. He has a point about letting candidates control their messages, but I can’t see big donors giving up the control to candidates when they can go independent and say what they want. They might fund both.

    Plus the independent expenditure lets the candidate deny connection to vicious or dishonest ads.

    At the root, the people I really blame are the minority of voters who get their information mostly from TV ads. TV ads are almost all campaign spending, and campaigns wouldn’t run them if they didn’t think they work.

  2. Submitted by Thomas Swift on 01/17/2012 - 03:30 pm.

    Candidates can certainly agree to anything they want, but it won’t have any effect on the public’s right to free speech, nor should it.


    Oddly enough, I can actually see room for a federal Consumer Financial Protection Bureau within the Commerce clause. Why not trade Obama for the Department of Education?

  3. Submitted by John Reinan on 01/17/2012 - 04:42 pm.

    I’ll point out that the Democrats never really had a “filibuster-proof” majority, something that an astute observer like Eric surely realizes if he’d stop to ponder it for a moment. They did have 60 nominally Democratic senators, but at least 5 or more of those were likely to vote against the party’s wishes quite often. The filibuster-proof majority only works when you have 60 senators who can be counted on to reliably vote in a bloc according to the wishes of party leadership. The Democratic Party in this country hasn’t had that kind of lockstep party discipline since the days when LBJ was the majority leader.

  4. Submitted by Paul Brandon on 01/17/2012 - 05:52 pm.

    No one will deny the desirability of a level playing field in principle (although Rmoney comes close), but in fact those most likely to actually support limited on anonymous third party political advertising (which is what Citizens United hath wrought) are those who are pretty sure they’ll be outspent.

    In this case, Warren undoubtedly suspects she’ll be flooded by the Koch boys.

  5. Submitted by Alec Timmerman on 01/17/2012 - 07:43 pm.

    Two independents who caucused with Democrats, but were not Democrats.

  6. Submitted by Jon Kingstad on 01/17/2012 - 07:52 pm.

    Eric says he doesn’t buy Romney’s claim that the SuperPac attack ads are “completely outside” the candidate’s control. I guess I don’t buy it either. I agree with Eric. Isn’t that part of the Stephen Colbert joke of transferring control of his SuperPac to Jon Stewart?

    But if that’s true then the Mass. candidates seem to imply it’s true too. So they can control these SuperPacs? So negotiate a truce already.

    As skeptical as I am, I also wonder if it’s not also true that large corporate donors, wishing to remain anonymous, might not funnel contributions to multiple or all candidates? Partly to hedge bets but also perhaps to create backlash. The whole thing seems rife with the possibility of manipulation to advance hidden agendas. Are lies and false propaganda protected free speech too? If so, what control could any candidates really have?

  7. Submitted by Hiram Foster on 01/18/2012 - 05:58 am.

    The media spends so much time, effort and money placing it’s boys and girls on presidential campaign buses. Why doesn’t it expend at least some of those resources in covering stories that actually matter, among them the influence of superPacs on our politics. Why is this all important job left to the Daily Show and the Colbert Report?

  8. Submitted by Hiram Foster on 01/18/2012 - 06:01 am.

    What’s happening is that important stories like the Bain stories are not covered by independent news organizations but partisan superpacs. The media is in the position of responding and even fact checking news created by partisan sources, when it should have been doing that independent reporting itself.

  9. Submitted by Ray Schoch on 01/18/2012 - 08:39 am.

    I don’t buy Mr. Romney’s assertion, either, Eric, but “curiouser and curiouser” seems an apt description of what’s going on in Massachusetts, especially when it’s compared to the Republican presidential primary season.

    In the former, the two candidates are – at least in print, if not in fact so far – essentially rejecting the SCOTUS decision. I think it interesting – not to mention exceedingly rare – for a pair of candidates to at least talk about agreeing to conduct a campaign according to their own set of rules. Some will call those rules “ethical,” while others will insist that free speech is being eroded by them, but the notion that Brown and Warren would even consider basically going outside the Citizens United parameters is fascinating all by itself. They’re not rejecting money, of course – I believe the cliché is that “Money is the mother’s milk of politics – but the whole “Super PAC,” “outside” money thing.

    That said, #4 makes a good point, and it’s quite possible that Warren is trying to hold off a flood of right wing “outside” money flowing into the Brown coffers as the campaign progresses. The other side of that is that Warren has herself raised quite a bit of money – several million so far. That, too, is fascinating, in a macabre sort of way. A consortium of people, corporations, and other groups spending millions of dollars so that one person or another can be elected to a congressional position that pays less than $200,000 suggests that perhaps those donors, especially those who’ve donated large sums, are expecting something in return. Gosh… that sounds a lot like quid pro quo, not necessarily democracy…

    Meanwhile, in Republicanland, quite a large amount of money is being spent to tar one candidate or another *by* one candidate or another, using a variety of tar brushes. No hint of rejecting outside money in the case of presidential candidates.

    #6 and #8 both make useful points, I think. Essentially, what Citizens United does is put political office up for bid, and mainstream journalism has failed almost completely to go after what ought to be among the most important stories of this political season. If money is the mother’s milk of politics, and the highest court in the land says that businesses, which typically have far more money than individuals, are “people,” then wealthy individuals and their corporate counterparts essentially have a license to buy whatever political office they want by filling it with the candidate of their choice.

    In olden times, when newspapers did a better job of covering stories like this, and a much higher proportion of a politically-literate public actually read those stories, this sort of thing might not matter so much. Nowadays, however, most people get their “news” from TV, which is both vapid and available itself to the highest bidder. Whoever has the most money for TV advertising – typically inaccurate, at best, character-attacking at worst – may well have the advantage in appealing to voters who are themselves basically uninformed. It’s a recipe for the well-funded demagogue…

  10. Submitted by James Hamilton on 01/18/2012 - 10:15 am.

    I suspect that the public reaction to Citizens United will prove to be disproportionate to its actual impact on elections. Yes, more money may be spent, but to what effect? The persuadable population grows smaller every year.

    It’s unfortunate that there seems to have been little demand for action by Congress to do what can be done to mitigate the impact of CU. Of course, neither party has any incentive to do so at the moment. Each will take advantage while condemning the other for doing so.

    For an entertaining description of PACS and Super-PACS, see

  11. Submitted by Paul Brandon on 01/18/2012 - 10:46 am.

    Huge sums may be spent to change 2% of the vote, but that’s what determines most national elections these days.

  12. Submitted by Bernice Vetsch on 01/18/2012 - 01:59 pm.

    If anyone is not yet aware of SJ-33, the joint resolution prepared by senators Sanders (I-VT) and Begich (D-AK), it is called the Saving American Democracy Amendment and would amend our constitution as follows:

    1) Corporations are not persons with constitutional rights equal to real people
    2) Corporations are subject to regulation by the people
    3) Corporations may not make campaign contributions or any election expenditures
    4) Congress and states have the power to regulate campaign finances.

    Citizens United would be killed. And ordinary people and organizations would have the same lobbying influence as big-donor corporations and industries now do.

  13. Submitted by Paul Brandon on 01/18/2012 - 03:38 pm.

    The question is how Sanders-Begich would deal with third party ‘issue’ ads that do not name individuals.
    And I also see problems with corporations funneling funds through individuals. This would fall under the heading of the power to regulate campaign finances.
    Potential conflicts with the first amendment.

  14. Submitted by Bernice Vetsch on 01/18/2012 - 04:59 pm.

    Hi Paul (#14)—-

    Section 4 of the full text ( reads:

    Congress and the States shall have the power to regulate and set limites on all election contributions and expenditures, including a candidate’s own spending, and to authorize the establishment of political committees to receive, spend, and publicly disclose the sources of those contributions and expenditures.

    Sounds to me as though the political parties will be responsible for full disclosure of all monies received and spent. Right? Wrong?

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