(Note: A shortened version of this post was printed as a letter in the Boston Globe's Sunday edition, click here.)
As the special election for the seat of soon to be former Senator Kerry approaches, the candidates will, with any luck, renew the People's Pledge, the campaign pact between former candidates Elizabeth Warren and Scott Brown that prevented outside groups from advertizing in support or against either candidate. The Pledge was less than perfect, but neither is the reality of unlimited election spending unleashed by Citizens United and Speechnow.org; it certainly does not deserve the scorn of Jeff Jacoby's recent column in the Globe.
Jacoby argues that the Pledge failed on a number of accounts. In his estimation, it did not prevent the campaign from turning negative, it did not keep overall spending down, and, what's worse, it stifled political speech. Not only are Jacoby's conclusions generally wrong, but his approach was misguided from the start.
First of all, to call the campaign the ugliest in America is surely a stretch of the imagination. In the hotly contested Senate race in Virginia, which actually outpaced Massachusetts for the most expensive race in 2012 (a point Jacoby overlooks), outside groups spent a staggering $45 million, over 90% of total spending, on opposition advertizing. The disparity between negative and positive advertizing was nowhere near this great in Massachusetts. To be sure, the Bay State candidates did participate in a volley of character attacks, but they were neither as relentless nor as nasty as those emblematic of a fierce attack ad campaign from an outside group.
Moreover, the Pledge never promised civility. It promised candidate accountability if either wanted to take the campaign negative. That was unquestionably achieved. When each candidate made the calculated choice to go negative, they were forced to endure the consequences, both good and bad. This is not the case when outside groups come on to the scene. For proof, just look at nearly any other Congressional race in the country, or right here in Massachusetts.
Jacoby is right in noting that the Pledge did not keep spending down (but again, this was not a stated goal). Together Warren and Brown spent more than any other two opponents in 2012, a record $75 million! But, the total sum of election spending is not, per se, the informative statistic. There is an important distinction between $75 million in donations coming from millions of small contributions versus a few multi-million dollar contributions. 33% of Warren and Brown's money came small contributions, a small, but refreshingly democratic ratio when compared to the 68% of total SuperPAC money committed by a mere 1% of donors.
Equally important, the Pledge ensured reasonable political spending disclosure, far from a guarantee in the world of SuperPACs and dark money c(4)'s. Whereas the FEC strictly enforces a relatively robust regulatory regime for candidate contributions, the same cannot be said about outside groups. The cases of wealthy individuals and corporations laundering money through shell companies to SuperPACs abound. Nonprofit social welfare groups are worse yet. They are not even required to disclose their donors.
Finally, the Pledge rightfully limited the ability of big political spenders from gaining undue favors from our U.S. Senator; it did not stifle political speech. Jacoby errs in equating stifled political speech with an inability to make expensive television ad buys. The Pledge did not prevent individuals from discussing either candidate in op-eds, letters to the editor, blog posts, and pamphlets. Neither did it prevent robocalls, direct mailings, and leaflet drops, which outside groups funded to the tune of nearly $7 million. Far from stifling speech, it seriously curtailed big money outside groups from drowning out the voices of average voters.
At the end of the day, A People's Pledge can only do so much in the Citizens United__-era of unlimited independent expenditures, but the benefits of increased accountability and transparency should not be overlooked. Candidates in the upcoming special election should follow Warren and Brown's lead and renew the Pledge. Even better, state and federal legislators should act on its overwhelming support and pass strengthened disclosure legislation and ultimately a constitutional amendment to end unlimited election spending.