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Call for third-party ad ban reminiscent of ‘96 deal

Republican Scott Brown is calling on Democrat Elizabeth Warren to join him in denouncing negative ads by third-party groups that want to spend millions to support one or the other of them in their burgeoning US Senate campaign.

Warren, true to her roots as a Harvard Law School professor, is calling for the drafting of an “enforceable agreement” between their two campaigns to implement the ad ban.

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The posturing and high-minded rhetoric recall the last time when Massachusetts was treated to an epic Senate race, the 1996 battle between Republican William F. Weld and Democrat John Kerry.

It, too, featured a negotiated agreement to curb ad spending - $5 million apiece.

And it promptly fell apart when the campaign neared its decisive stage, the same fate all but certain to face any deal between Brown and Warren.

Simply put, the stakes are too high - and First Amendment principles like free speech at risk - for it to be any other way.

“At least with Weld and Kerry, nobody had tried it before, so I suppose it had some chance to work,” said Rob Gray, a Republican political strategist who was Weld’s campaign communications director. “But 15 years later, I find it funny that people actually think it could be enforceable and practical.”

Gray projected outside groups will spend up to $20 million in what is being pegged as a $60 million race - $20 million apiece by Brown and Warren, assuming she wins the Democratic nomination, and another $20 million from groups interested in their candidacies.

Scott Brown

Josh Reynolds/AP

Brown, an incumbent senator preparing to formally announce his reelection campaign on Thursday, sparked the discussion with a tart letter to Warren last week seeking an agreement.

The League of Women Voters and the League of Conservation voters have already aired over $3 million worth of ads attacking Brown’s record, while a conservative group, Crossroads GPS, has aired over $1 million in ads attacking Warren’s.

“It seems the only third-party ads you think are unfair are those that criticize you,” Brown said in his letter Friday. “The voters of Massachusetts deserve an honest campaign where candidates themselves are allowed to contest their ideas and are held accountable for the conduct of their campaign. 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.”

Warren responded with a voicemail left on Brown’s cellphone and a letter of her own.

“If you are serious about stopping the political games and getting to the hard work of keeping out third-party ads and independent groups, I’m ready,’’ Warren wrote in her letter.

She said her campaign manager could meet with Brown’s campaign manager to draft an “enforceable agreement” that would include “consequences’’ for either campaign failing to honor it.

“Too often, candidates call for an end to third-party influence but their words are just that, and their calls are more empty promises and politics as usual,’’ Warren replied to Brown.

Now that both campaigns have staked their high moral ground, reality sets in through the example of the Weld-Kerry agreement.

Fearing a spending race, the two Ivy League graduates decided to set an example for politicians elsewhere by personally negotiating an agreement limiting their respective campaigns to $5 million worth of TV ads apiece.

Elise Amendola/AP

Elizabeth Warren

(For context in the growth of campaign spending, Warren raised $5.7 million alone during the most recent quarter, while Brown already has $12.8 million in the bank.)

The deal fell apart after Kerry, trailing Weld as the campaign entered the fall of 1996, dumped an extra $1.7 million worth of ads on the airwaves. The incumbent senator claimed the sitting Massachusetts governor had first violated the spirit of the agreement by negotiating a lower commission for his ad buyer, allowing him to buy more commercials with his allotted funds.

While that agreement related to the money each candidate’s campaign could directly spend on ads - not the amount third-party groups would spend promoting Warren or Brown, or attacking one or the other - it’s all the more instructive for the current race because the two candidates can have no legally binding agreement controlling the behavior of outside groups.

Organizations like the League of Women Voters and League of Conservation Voters channel their spending through affiliated groups called “527s” for the section in the tax code governing their behavior.

Meanwhile, no less than the Supreme Court has ruled that the government cannot place limits on independent political spending by corporations and unions. Its 2010 “Citizens United” decision has given rise to “super PACs” like Crossroads GPS that are now pouring millions into congressional campaigns or the presidential race under the guise of being disconnected from candidates that some even support by name.

Groups like the League of Women Voters and League of Conservation Voters also argue that they are free to challenge Brown’s record on issues important to their members, even if the senator and independent analysts brand their commercials as negative ads.

While the Brown and Warren candidacies are the focal points of such groups’ activities, the spoils this year go far beyond Massachusetts or the two competitors in its campaign.

At stake potentially is control of the US Senate and all that could mean for a second-term President Obama or a newly elected Republican taking up residence in the White House.

“Most of the operatives inside the Weld and Kerry campaigns didn’t think an agreement could work, even with only two campaign committees being involved,” said Gray. “Now, it’s the Wild West, with 527s and super PACs, so a third-to-a-half of the campaign spending is likely completely outside of the candidates’ control. The candidates can’t tell a super PAC what to do. Period.”

Glen Johnson can be reached at johnson@globe.com. Follow him on Twitter @globeglen.
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