Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Following up on Mark’s post, a further problem with the Brown-Warren agreement is that not all ads “for” or “against” a candidate make their case effectively. Some are wholly ineffectual and others are actually counterproductive, indirectly reminding voters of why they disagree with the ad’s message.
This creates opportunities for mischief. If I were a really savvy Brown operative (by which I mean, of course, not a current campaign staffer, but perhaps an ex-staffer, college roommate, childhood best friend, or someone else officially “independent”), I’d run the worst, shoddiest, most-likely-to-backfire anti-Brown ad I could, and then watch as (a) the ad does nothing to hurt Brown, and may even help him, (b) Brown claims credit for sticking up for himself amid a barrage of attack advertising that Warren’s side is reprehensibly launching despite their agreement, and (c) oh, and by the way, for every two dollars I spend, the Warren campaign has to give one to charity. Not bad.
Now probably this is one of those “loopholes” to which the Brown-Warren agreement refers briefly at the end—a “sham ad.” But if so, all that does is move the goalposts. Now the game is to come up with an ad that, while pointless and ineffectual, is nonetheless just serious enough not to be considered a “sham.” In theory, even if an ad helps Warren, if it helps her less than 50% as effectively per dollar as the ad she would otherwise have run—for example because it muddies her message or unhelpfully changes the subject—then it actually helps Brown. (Don’t assume it will be easy to distinguish deliberate self-sabotage from earnest boneheadedness. If an agreement like this one had been in place, and if an ad like this one had been an independent expenditure, would you have believed it was for real?) On the flip side, there’s always a danger that a message intended to be ineffectual will instead be wildly popular…
Shams aside, the paradoxical nature of the Brown-Warren agreement is that in an effort to take greater control of—and responsibility for—the arguments and messages of their side, Brown and Warren might instead be laying the groundwork for a total loss of control (and responsibility) for those messages. From a fundraising perspective this could result in the worst possible outcome: the candidates will have to spend at least as much time and effort raising funds as ever, but now those efforts will be under a cloud: they may be soliciting funds but not using them to campaign, and instead donating them to a charity (and one chosen by their opponent, at that). Will all donors agree to give under such conditions?
Brown and Warren must not think this will be the outcome—it’s too disastrous for both campaigns. So we can infer that they believe there is a good chance that at least some outside groups will abide by their agreement. I think they may be right. Many of the major players may stay out of the Massachusetts senate race this cycle precisely because those major players are sufficiently savvy, plugged in, and national in their orientation that they can understand their dollars will now go further (and perhaps cause less blowback) in other, equally important races. The agreement may function kind of like a yard sign for a home security system: the point is to get a burglar to go after your neighbor’s house instead of yours. When we think of “independent expenditures” we often think of ads by small, local, issue-oriented groups. But the big spenders are more likely to be groups run by big-time, national party insiders—people like Bill Burton and Karl Rove. Those people aren’t stupid, and they have plenty of priorities other than the Massachusetts senate race. Thus, although this plan seems on its face to create perverse incentives and generally to make little sense, there is a significant chance that it will have the effect the campaigns say they want it to have. If elected, either Brown or Warren will then be able to take credit for changing the nature of Senate campaigning—in a way that is entirely impossible to reproduce across the country, because it only works by shifting ad dollars from Massachusetts to other states. Posted
by Joseph Fishkin [link]
The problem with this deal isn't that its unenforceable, or could be gamed: It's an agreement between two politicians that everybody else should STFU: That's its unenforceable is one of it's GOOD points!
It probably will reduce 'third party' (Everybody else!) spending for Brown; Not because it would make spending for Brown less cost effective. Not so much because people who'd otherwise have spent in support of Brown would respect it, quite the contrary. People who might otherwise have spent in favor of Brown are going to despise the bargain so deeply that they no longer see much reason to care if he loses! It demonstrates to them he's not the sort of guy they care to help elect.
I have no particular insight into the dynamics on the Democratic side of the race, but unless something comparable is going on, (And I doubt it, Democrats seem to like campaign censorship.) Brown has just screwed himself.
Here in MA, we have escaped much of the Super PAC ads, except for the NH GOP campaign overflow. I get to see such ads via the Internet from primarily Jon Stewart and Stephen Colbert as well as "real" news shows. It has been a pleasure NOT being subjected to TV bombardments of Super PAC ads as had been reported in SC. So in MA non-Super PAC third parties (i.e., voters) may benefit from the Brown/Warren agreement, and still be entertained by Stewart and Colbert.
While Brett has " ... no particular insight into the dynamics on the Democratic side of the race, ..."
I'd be interested in his insight (as an outsider) into the dynamics on the Republican side of the race.
More like, if you tell your supporters to STFU, don't expect them to be very enthusiastic about supporting you.
Brown was supported by the tea party movement, not because he was thought ideologically congenial, but just as a tool to oust the incumbent. They knew this, and he knew it. Personally, if I'd gotten elected with my supporters thinking I was the lesser of two evils, I wouldn't be looking to reduce the contrast. But it's common for incumbents, elected for the first time, to figure the power of incumbency will permit them to toss under the bus parts of the coalition that elected them that they don't like.
Frequently they're right about that, sometimes wrong.
I suspect tea party members will still vote for Brown, but exert no other effort to ensure his election. "Shut the hell up!" is not the most effective rallying cry.
This is a misguided approach with neither side overly insightful, one perhaps because she is a political novice, the other trying to find a way to show some independent bona fides. This isn't the way to do it.