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How candidates can sidestep Supreme Court rulings on campaign finance

After the Citizens United ruling, reformers worry the Supreme Court may further loosen campaign finance restrictions with this term's McCutcheon case. But there's a new way to limit money in politics: private agreements between candidates not to allow third-party campaign spending.

By Ganesh SitaramanOp-ed contributor / October 22, 2013

Republican activist Shaun McCutcheon (center) leaves the Supreme Court after the court's hearing on campaign finance in McCutcheon v. Federal Election Commission on Oct 8.

Susan Walsh/AP

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Nashville, Tenn.

Earlier this month, the Supreme Court heard arguments in McCutcheon v. Federal Election Commission, the most recent challenge to campaign finance restrictions. With the real possibility of the court striking down yet another campaign finance law, reformers are starting to worry about what happens next.

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Since the Supreme Court’s ruling in Citizens United opened the floodgates for corporate money in elections three years ago, legislative efforts to limit the corrupting influence of money in politics have been unsuccessful. But that does not mean there is no hope.

Recently, another approach has emerged: private contracts between candidates about spending by third party groups outside the control of the campaign. Private contracts are not a silver bullet, but in the context of a gridlocked Congress and a Supreme Court that has been hostile to campaign finance restrictions, they can help limit the worst excesses of campaign spending.

The private contract approach gained visibility last year with the Elizabeth Warren–Scott Brown Senate race in Massachusetts. In late January 2012, the two candidates signed what they called “The People’s Pledge,” which succeeded in keeping third-party groups – including those from outside the state – out of TV, radio, and Internet advertising in the most-expensive Senate race in American history.

The pledge required each campaign to pay to charity the equivalent of 50 percent of any outside group's advertising costs, for ads that benefited their candidacy. Up until that point, outside, third-party groups like the League of Conservation Voters and Karl Rove’s Crossroads USA spent millions of dollars on advertisements on the candidates. After two minor third-party incursions in March (with penalties paid by the Brown campaign)*, the People’s Pledge held until Election Day, with no other outside groups entering the race for fear of harming their preferred candidate.

Since the Warren-Brown race last year, there has been a small but emerging trend of other campaigns debating – and in some cases adopting – variations on the People’s Pledge. The trend has especially taken hold in Massachusetts, where the pact originated.

For example, the People’s Pledge was adopted with slight variations in the 2013 Senate primary to fill now-Secretary of State John Kerry’s Senate seat in Massachusetts and in the 2013 special election primary to fill now-Sen. Ed Markey’s seat in the House.

The People’s Pledge has also been debated publicly for this year’s Boston mayoral race and for next year’s Massachusetts gubernatorial race. It was also discussed in the recent special election primary race in New Jersey to fill Frank Lautenberg’s Senate seat. (Newark Mayor Cory Booker won the Democratic primary and the election).

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