Two years after Citizens United, candidates forge a path around outside spending

It’s been two years since a torrent of unrestrained election spending by outside groups was unleashed by Citizens United, a Supreme Court decision that candidates from both parties say has robbed them of control of their own races. But in one contest – incidentally, the most closely watched Senate race in the country – two rivals have embarked on a mission to take back control.

A budding and unprecedented treaty between Republican Scott Brown, the senator from Massachusetts, and Democrat Elizabeth Warren, his presumed reelection opponent, is shining a light on the role money plays in modern elections – and calling into question whether politicians can do anything about it.

{mosads}The Citizens United ruling cleared the way for a new and now ubiquitous institution known as the super-PAC, which can accept unlimited contributions from corporations and individuals to spend in support or opposition of candidates. Candidates can’t coordinate with super-PACs, a rule intended to prevent candidates from using them to circumvent campaign finance rules, but one that also makes it harder for a candidate to shut them down.

In Massachusetts, Brown has been grumbling for months about ads aired against him by a women’s group and an environmental group, and demanding that Warren denounce them too. In a bold gambit, the independent-minded senator not only called for groups aligned with Warren to stop attacking him, but also demanded groups supporting him to drop their hits on Warren.

“Rather than adopt an elitist attitude with one set of rules for yourself and another for everyone else, I urge you once again to join me in calling for an end to all spending by third party groups,” Brown wrote to Warren in a letter one week ago.

The letter prompted an unexpected response from Warren: Game on. Rather than continue to ignore Brown’s pleas for a joint condemnation, she raised him one, proposing the two dispatch their campaign managers to develop an “enforceable agreement” to keep all outside groups out of the race.

And so began a game of one-upmanship that has offered both disheartening pettiness and a rare moment of optimism as the two high-flying candidates enter uncharted territory in their quest to take matters into their own hands.

Ahead of their Friday meeting, Brown laid out a proposal that was nothing if not creative. The first-term senator suggested both candidates agree that if any outside group airs a television or online ad – either a positive spot or an attack ad – the candidate that benefits must donate half the cost of the ad to a charity of his or her opponent’s choosing within three days.

Nothing about the agreement could stop any group from doing anything they wanted, but the idea was that a group that wants Warren in office wouldn’t make a move that could bankrupt her campaign – and the same for a group like American Crossroads, a conservative group backed by Karl Rove that has been on the air attacking Warren.

“It’s a fabulous idea, and kudos for coming up with a creative way to keep the people’s voice pure,” said Maria Cardona, a Democratic strategist unaffiliated with the Massachusetts race. “Whether or not it’s something that is a trend that others will adopt, it’s certainly something others can look at. Perhaps they will feel pressure to do something as well.”

But others – including Warren – aren’t so sure that Brown’s idea is ready for prime time. The envoys for Warren and Brown left Friday’s meeting without reaching an agreement, although Warren’s campaign said immediately after that she still believed the two could reach consensus.

“Elizabeth has been very clear that we need a clean and simple agreement to stop third party advertising in this Senate race,” said Alethea Harney, Warren’s spokeswoman. “She is happy that Scott Brown has moved her way on this issue, but unfortunately, the proposal he has put forward still includes loopholes that Karl Rove could drive a tank through.”

Warren’s team did not elaborate on the nature of the loopholes, but campaign finance experts immediately spotted a number of insidious ways that the accord could be shirked by those seeking a way to keep their thumb on the scale.

The issue has implications at just about every level of politics. In the Republican presidential race, Newt Gingrich has demanded Mitt Romney force a super-PAC run by his former aides to stop airing what Gingrich deemed unfair attack ads. Millions of dollars worth of such ads helped sink Gingrich in Iowa. But Romney whipped out the “no coordinating” rule as trump card, claiming he could go to prison if he stepped foot in the moat separating him from the PAC.

Gingrich, meanwhile, publicly asked a super-PAC supporting him to edit or take down ads attacking Romney’s career at Bain Capital that were shown to contain multiple inaccuracies.

So far, no luck.

Campaign law differentiates between electioneering communications – ads that tell you to vote for or against a candidate – and issue ads, which tell you what a wonderful or horrible person the candidate is, without explicitly suggesting a vote either way.

The line between the two is easily blurred.

“It’s got a loophole that a blind monkey can find in two seconds. So they’re going to have an argument over who’s breaking the pledge,” said Dan Hazelwood, a Republican consultant.

Hazelwood pointed out how easily a group could flip the agreement on its head. A group that wants Brown reelected could spent $2 million on an ad saying, “We love Warren and you should vote for her, because she wants to raise taxes on everyone, including the poor.” Warren could then lose $1 million in campaign funds because – technically – the ad supported her.

“It just leads to silliness, and the voters are going to roll their eyes,” Hazelwood said. “It just shows how the system stays broken, because even if you try to fix it, there are new holes.”

Case in point on how the gritty details could imperil any such deal: The League of Conservation Voters, which aired $1.8 million in ads in October denouncing Brown’s record on environmental issues, says their spot was an issue ad intended to hold Brown accountable. But Brown has called it an attack ad aimed at influencing the 2012 election.

Either way, because the ad directly mentioned Brown, it would appear to meet the criteria Brown’s proposal lays out to trigger the consequences for his rival’s campaign.

“If they reached a deal, it is something we would consider adhering to but – and this is a big but – we would watch whether groups like Crossroads and Americans for Prosperity are going to adhere to it, or whether they will break whatever agreement is reached,” said Navin Nayak, the league’s senior vice president for campaigns. He added that his group is increasingly convinced that Brown’s proposal is a ploy to avoid being held accountable.

American Crossroads declined to say whether it would consider abiding by such a deal, but in a statement following the unsuccessful meeting, the group said Warren was “grasping at straws to keep her special interest friends in the race.”

“Otherwise she would reveal the specific individual loopholes she claims exist in the deal,” said American Crossroads spokesman Nate Hodson.

While barbs fly in Massachusetts, groups all across the country are attentively watching to see whether a model emerges that could be used in other races, or whether a failed venture by Warren and Brown will reinforce the notion that corporate money and politics are irrevocably intertwined.

“We are often told by [lawmakers] who want to take principled positions that they are facing an incredible amount of money that will come up against them,” said David Levine of the American Sustainable Business Council, which represents about 110,000 mostly small- to mid-sized businesses. “That sort of influence by certain very large corporations creates an unlevel playing field for our businesses to compete.”

Advocates like Levine say they welcome agreements like the one Brown and Warren are pursuing, but see it as a mere first step toward rectifying the damage inflicted by Citizens United.

The ultimate goal: a constitutional amendment to let Congress intervene and regulate the flood of outside spending. Such an amendment has already been introduced by Sens. Tom Udall (D-N.M.) and Michael Bennet (D-Colo.), but has failed to gain much traction, if any.

“Turning our electoral system into a silent auction will corrode our democracy,” Bennet said on the anniversary of the Citizens United decision. “We can take small but meaningful steps to help restore faith in the system by requiring disclosure and returning the power to set reasonable rules for election to the people.”

But there’s another point of view that suggests Congress should take quite an opposite approach: Allow unlimited contributions directly to campaigns, defusing the incentive to skirt contribution limits by funneling money into outside groups.

“The solution is to let the money flow back to candidates and parties, and then the voters can hold them accountable,” said Hazelwood. “There’s no way to put the genie back in the bottle.”