Senator Tester's Crusade Against Citizens United

Senator Tester has railed against the Citizens United decision since it was announced in 2009. He and Senator Baucus have jointly sponsored a constitutional amendment to overturn the decision, and the Senator has been on the receiving end of a large amount of outside money assaulting him on various votes he has taken while serving in the Senate. The advertisements began in the spring on the Debit-Credit Card Swipe fee issue, they continued this summer over raising the debt ceiling and healthcare, and today the U.S. Chamber of Commerce announced another the launch of another set of advertisements highlighting Senator Tester's connections to President Obama and his agenda. You can watch the latest set of ads here (scroll down to Tester).

Congressman Rehberg, too, has felt the sting of outside interest group money: a group of Montana Hunters and Anglers bought spots attacking the Congressman for his plan to allow the U.S. Border Patrol waivers from a variety of federal regulations when operating on public land. American United for change also sponsored some spots telling the Congressman to keep his hands off of Medicare. You can view these spots here and here.

I have in the past written about how all this outside money drives candidates crazy because they lose control of their message. Senator Tester has a solution to the problem: he is offering Congressman Rehberg a pledge to disavow any third party advertising expenditures. The pledge, according to a Tester campaign release, is as follows:

THIRD-PARTY ADVERTISING AGREEMENT

1) By signing this agreement, both Jon Tester and Denny Rehberg, and their respective Senate campaigns (Montanans for Tester and Montanans for Rehberg) publicly reject and work to prevent the broadcast of all third-party radio and TV ads from date of signature through 8:00 p.m. MST on November 6, 2012, when polls in Montana close on Election Day.

2) Any cable, satellite or over-the-air broadcast of a TV or radio advertisement funded by a third-party—either negative or positive—that specifically mentions or references either candidate, through narration, text or images, shall result in a one-time penalty for the other candidate’s campaign (see #5), and this agreement is then nullified. For example, if a third-party organization airs an ad attacking Congressman Rehberg, Montanans for Tester must pay the penalty, and all third-party organizations are then free to advertise without penalty.

3) A third-party is defined as any organization other than Montanans for Tester or Montanans for Rehberg. Both campaigns are free to run their own advertising as allowed by law. Examples of third-party organizations include but are not limited to the Montana Democratic Party, the Montana Republican Party, The Democratic Senatorial Campaign Committee, the National Republican Senatorial Committee, American Crossroads or Crossroads GPS or any of their affiliates, labor unions, and the U.S. Chamber of Commerce. A third-party may also be a single person responsible for funding a broadcast ad.

4) Any effort by a third-party to undermine the spirit of this agreement by running a disingenuous advertisement meant only to trigger the penalty for either campaign will result in a penalty and nullification of this agreement. For example, if an organization that actually supports Sen. Tester runs an ad attacking Sen. Tester only to incur the penalty for Montanans for Rehberg, then Montanans for Tester must pay the penalty and the agreement is then nullified. In the event that a previously unknown third-party organization or person runs an advertisement, both Montanans for Tester and Montanans for Rehberg will ask broadcasters to immediately pull the ad, and it will be subject to a review and a challenge before any penalty is incurred.

5) The Penalty: If a third-party organization that funds or broadcasts any TV or radio advertisement that specifically mentions or references either candidate, through narration, text or images, then the opposite candidate must pay a one-time penalty equal to the cost of the ad buy to the Montana charity or charities of the penalized candidate’s choice. The penalty shall not be greater than $250,000 and must come from a candidate’s campaign coffers.

The Billings Gazette wrote about this pledge in today's paper (read the article here). In it, I mentioned that this type of pledge is a variation on an old theme. In 1980, the National Conservative Political Action Committee (NCPAC) launched an aggressive advertising strategy aimed at defeating nine liberal Democratic senators. 7 of the 9 senators targeted lost reelection and NCPAC took credit (Senators Cranston and Eagleton of California and Missouri, respectively, survived). The incumbents who were at the receiving end of the advertising barrage attacked NCPAC as an outside organization who was trying to buy elections, and often the incumbents would ask their opponents to disavow the organization. In the 1990s, when independent expenditures and soft money exploded on the airwaves, candidates would also ask their opponents to sign pledges asking outside organizations to stay out of campaigns. Most notably, Senator Russ Feingold--author of the Bipartisan Campaign Finance Reform Act--successfully convinced his opponent, Congressman Mark Neumann, to disavow soft money advertisements and to agree to overall spending caps. Neumann, who was first elected in the Republican landslide of 1994, had already refused to accept any PAC donations. Feingold went on to win that very close race. More recently, Senator Scott Brown and Elizabeth Warren have also agreed to "curb political attack ads from outside groups" (see article here). In fact, it seems that the Tester pledge is largely based on the pledge that the Massachusetts candidates worked up.

Do I think this is the right political move for Senator Tester? Yes. The Senator's campaign narrative is a populist one and this pledge fits squarely within that narrative. Montanans are skeptical of big corporations and the big federal government. The Montana Supreme Court recently upheld the state's strict campaign finance laws barring corporate and labor union contributions, and Senator Tester applauded the decision. This is another way in which Senator Tester is attempting to highlight how his record, beliefs, and values are consistent with those most Montanans hold. Congressman Rehberg also has a strong record of supporting transparency, and this pledge--by disavowing outside money--prevents organizations like Crossroads GPS that accept campaign contributions but do not disclose them from using that money on advertisements. It puts the Congressman in a bit of bind.

Do I think the pledge will work if Congressman Rehberg agrees to sign it? I am doubtful because I'm not sure what the incentive is for outside groups to hold their fire in this race. I am also not entirely convinced that the pledge helps Senator Tester in the long run. Sure, it would seem that the amount of money being spent nationally favors Republican candidates right now. On the other hand, there will be all kinds of organizations spending money to support Democrats--especially given the President's apparent blessing of SuperPACs. And that money might not be plainly visible because it may not be spent on television but on other equally effective activities, such as voter mobilization.

Will Congressman Rehberg sign the pledge? If I were a betting man, I would suspect that they will make a counter-offer before Senator Tester's self-imposed deadline on Friday.

If you want more information on SuperPACs and how they work, I would highly recommend listening to NPR's Morning Edition on February 9th, which discusses the Crossroads set of organizations in particular and features commentary from fellow political scientist, Robin Kolodny, at Temple University.