Balkinization: What Am I Missing?

What Am I Missing?

Mark Tushnet

According to reports, Elizabeth Warren and Scott Brown have reached an agreement -- the near-final version of which is, with grammatical warts and all, available here -- expressing their opposition to "outside" spending in connection with their campaigns for the Senate. As summarized, the agreement is this: "Brown said his campaign would have to donate 50 percent of the value of any spending on his behalf to a charity of Warren’s choice, and she would have to do the same to a charity of his choosing if he was targeted with an outside ad benefitting her." On its face, this agreement seems to turn control over campaign advertising to outside groups: Say Brown and Warren each have $10 million to spend on their own advertising. All that outside groups have to do to gain complete control over campaign messaging is to spend $20 million (each, for Brown and Warren).

I have to be missing something, but what? The agreement says that the candidates will work to close loopholes, but what I've described doesn't seem to me fairly characterized as a loophole. As the saying goes, it appears to me to be a feature not a bug. But, as I say, I have to be missing something.

Posted 8:32 PM by Mark Tushnet [link]

Comments:

Note that the "third party" organizations that they oppose here are not limited to "corporations," "SuperPacs" in fact are cited separately. The anniversary of Citizens United now as notable for some as that of Roe v. Wade, this seems a tad telling.

Also, really, how the heck do they expect independent groups not to advertise during the election cycle? Why the heck should they? Why should, e.g., some local group for animal rights oppose some candidate who supports factory farming and opposes regulation?

I don't know if third party ads are large enough for Prof. Tushnet's question to have much force, but the whole thing to me is a bit inane. I am not shocked by it or anything. Like Maxwell Smart, I just wish such unity was used for better cause such as what THEY themselves spend or something.

# posted by

Joe : 9:17 PM

It's hard to see how they can BOTH expect to benefit from this deal, in as much as only one of them can win the election. Perhaps they're both planning on double crossing the other, by creating false flag "outsider" groups to exhaust the other's fund with offsets to deliberately counter-productive spending?

In any event, the central goal, getting everybody but the candidates to shut up, is both futile and offensive.

# posted by

Brett : 9:27 PM

Might this be an agreement against public policy and thus unenforcible?

# posted by

Shag from Brookline : 6:52 AM

maybe i'm naive, but it makes you wonder why they can't simply agree that they will immediately and forcefully disavow any negative ad from any outside group or organization, including corporations, superpacs, unions, etc., that they will publicly identify all individuals responsible for and associated with such ads, and that they will return all campaign donations from all such individuals so identified and/or associated with any such outside organization or group.

# posted by

phg : 10:57 AM

It is not always possible to identify all the people involved with such ads -- NYT tried that once with a particular ad and had the devil of a time. Citizens United allows disclosure laws but the DISCLOSE Act was filibustered though that probably would only partially address the issue.

# posted by

Joe : 11:40 AM

As Rick Hasen suggests, they are practically begging for a Colbert special.

# posted by

mls : 1:33 PM

Who are the "they":

"As Rick Hasen suggests, they are practically begging for a Colbert special."

Brown and Warren, or perhaps others? And what's wrong with a "Colbert special," especially if it targets both of them AND the role of excess money in political campaigns?

But does anyone recall that an agreement against public policy may be unenforcible? I seem to recall this from my first year of law school in 1951. Does Citizens United reflect public policy (even though 5-4)?

# posted by

Shag from Brookline : 1:53 PM

It's sweet that they both oppose third party political speech, but they have no control over third parties.

I will not hold my breath for either campaign to give away its funding to charity.

# posted by

Bart DePalma : 2:44 PM

"They" are Warren and Brown, and in this context a "Colbert special" would be an ad which lampoons their agreement (eg, an "anti-Warren" ad that accuses her of being biased against the 1%).

# posted by

mls : 9:09 AM