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Warren, Brown, Sign Pact Banning Third-Party Ad Spending in MA-Sen

Antonin Scalia thinks that everyone should be blamed but him for the hash that the Citizens United decision, among other things, has made of the campaign finance system.

Super PACs have raised more than $30 million just three races into the 2012 presidential race, according to the website, run by The Center for Responsive Politics. TV advertising alone in South Carolina, which is voting Saturday, is estimated at $12 million, or nearly $27 per voter when calculated using the 2008 Republican primary turnout numbers […]

Scalia said the blame for this type of system shouldn’t fall on the Supreme Court, which he said decides merely whether the system is legal under the U.S. Constitution. Instead, he said the ones who have to change things are the politicians who created the system and the voters who often reward the candidates who spend the most money.

“If the system seems crazy to you, don’t blame it on the court,” Scalia said, during a discussion in front of South Carolina lawyers that lasted for more than an hour.

Well, he’s never taken responsibility before, so why should he now? All he did was break the system, it’s not up to him to fix it! I mean, for all the faults of the old campaign finance system, at least corporations weren’t able to spend freely in elections. And the creation of SuperPACs to accommodate Citizens United has made it far more friendly for wealthy individuals, who could spend on third-party ads previously, to step up their spending.

But to the extent that anyone in a position of authority has stepped up and tried to change the system as it exists today, it’s someone who hasn’t even yet held elected office. Elizabeth Warren inked a deal to effectively ban third-party ad spending in their hotly contested Massachusetts Senate race.

Massachusetts Sen. Scott Brown (R) and his Democratic rival, Elizabeth Warren, have reached a groundbreaking agreement to deter super-PACs and outside groups from dominating their Senate race with millions of dollars of ads, Brown said Monday […]

The pact signed by Warren and Brown on Monday imposes a financial penalty whenever an outside group intrudes on the race. If an outside group places a television or Internet ad supporting a candidate, the candidate would be required to donate 50 percent of the cost of the ad to a charity of the opponent’s choosing within three days. Negative attack ads would also trigger the penalty, with the candidate whose rival is attacked being forced to forfeit half the cost.

Also included in the accord are written requests signed by both candidates to broadcast station managers imploring them to voluntarily enforce the pledge.

While outside groups are not legally bound by the agreement, the goal is to create a disincentive strong enough to convince the groups that by wading into the race, they do more harm than damage to their preferred candidate.

Ultimately, with the FEC functionally dead as an institution and the outside money sloshing around, the only way to impose any order on the campaign finance system right now is through non-aggression pacts like this. Maybe that changes in the future with legislation like the DISCLOSE Act, or in the long run a Constitutional amendment banning corporate personhood. (I don’t agree with Mark Schmitt that Move to Amend is a fool’s errand and a distraction. In fact he acknowledges at one point that movements to pass amendments that are expressions of principle would have residual benefits in setting a long-term vision, something that almost never happens on the left. Moreover, banning corporate personhood has benefits well outside the campaign finance arena.)

For the time being, we have opportunities like what Warren and Scott Brown offered. That won’t work in every race; most politicians are shameless enough to take the hit on “sleazy” outside ads while knowing full well that negative ads work no matter where they come from. But in a race with at least one good government candidate who knows how to work the media, this kind of thing can happen. And it will be a nice template for others to follow.

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David Dayen

David Dayen