Sen. Susan Collins (R-Maine) criticized the DISCLOSE Act in July, but Democrats hope for her vote on a modified version of the bill. (Louie Palu/ZUMA Press)

Despite widespread public opposition to the Supreme Court’s Citizens United decision and multiple exhortations by the president for Congress to act, Senate Democrats were unable to overcome a Republican filibuster to pass the DISCLOSE Act, a bill requiring interest groups to name the donors behind their campaign ads, in the months leading up the midterm elections. Next year, when the GOP claims a majority in the House, the odds of passage are slim. “Um, no,” said presumptive House Speaker John Boehner’s spokesman when asked if Republicans might introduce a version of the DISCLOSE Act next year.

[Economy1] The last chance, then, for Congress to put some form of disclosure legislation on the books before the shadowy spending process repeats itself, in grander fashion, in 2012 might be now, the lame-duck session in advance of the swearing-in of the much more Republican 112th Congress in January.

But if the numerical chances of the bill’s passage in the Senate — it will only need the votes of two Republican senators to overcome a filibuster when Congress returns from its campaigning break next week — will never look better, the level of trust and communication between key Democratic and Republican Senate offices typically engaged on the issue of campaign finance stands at a seeming all-time low.

Democrats in leadership are now weighing the idea of stripping the less essential provisions of the DISCLOSE Act — measures to prohibit spending from companies holding government contracts or those exceeding a certain threshold of foreign ownership — as an act of good faith in order the counter Republican qualms about the bill and make one last-ditch effort to pass it. They’ll only do so, however, if they anticipate success, and the current breakdown in negotiations between the key parties is making them wary about the bill’s chances of garnering any GOP support at all.

How has a year’s worth of legislative effort on a popular measure now found itself on the brink of failure, and what might make it still succeed? An understanding of the bill’s chances in the lame-duck session requires a look back at its struggles through Congress and the reasons for the current standstill.

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The DISCLOSE Act’s problems began with its personnel. The bill originated in the offices of Sen. Chuck Schumer (D-N.Y.) and Rep. Chris Van Hollen (D-Md.), legislators best known for their efforts, as chairmen of the Democratic Senatorial Campaign Committee and Democratic Congressional Campaign Committee, respectively, to get their fellow Democrats elected. Consequently, it was viewed with suspicion by House Republicans.

“When you immediately go to the two lawmakers who are responsible for getting Democrats elected and say, ‘Please write us the bill,’ a lot of Republicans looked at that and said, ‘Huh, that’s a curious choice,’” said Sean Parnell, president of the Center for Competitive Politics, which advocates against imposing limits on campaign spending. “It was the chair of the DCCC and former chair of DSCC leading the process. There was no way that was not going to be seen as partisan. From there it just kind of all went downhill.”

With the Senate calendar and key staffers still tied up with health care reform and financial regulation, it fell to the House to get the ball rolling — but House Democrats said the bill’s basic idea never gained traction among Republicans.

“We released a framework to the public four months in advance of introducing the bill and we reached out to specific Republicans who normally engage in campaign finance issues,” said a Democratic aide who worked on the bill. “We never were approached by Republicans to say they’d vote for stripped-down disclosure provisions.”

Only two Republicans — Reps. Ahn Cao (La.) and Mike Castle (Del.) — signaled support for the bill, so House Democrats proceeded to make it something of a wish list. They added provisions barring companies with federal contracts or those exceeding a certain threshold of foreign ownership from spending independently to influence elections. And they also made an exception for longstanding nonprofits — like the Sierra Club or the National Rifle Association — that met certain membership requirements.

The result was a bill that arrived fully formed in the Senate at the end of June, but one that also provided ample opportunity to its opponents (or would-be supporters) to hammer it as partisan or unfair. The provisions barring certain companies from spending looked to some like built-in advantages for unions, while the NRA carve-out, as it became known, provided an ironic special-interest twist on a bill meant to be about good government.

When the bill came up for its first Senate vote in July, however, Democrats hoped they could still pressure Republicans with a reputation for past leadership on campaign finance issues — like Maine Sens. Olympia Snowe and Susan Collins — or newly elected Sen. Scott Brown to cast a vote in favor of the overarching concept of disclosure. But these senators objected to the lack of a committee mark-up or other opportunities to make constructive changes to the bill.

“Unfortunately, the Senate Majority Leader chose to bring forward a bill that doesn’t live up to its title,” Collins wrote in a statement after her first procedural vote against the DISCLOSE Act. “It was drafted by Democrats behind closed doors. No committee hearings were ever held on this legislation; therefore, there never was an opportunity to make any changes to this bill or mark-up in the committee process before we were asked to consider it.”

Democratic aides in the Senate, however, insist they gave Republican senators like Snowe, Collins and Brown every opportunity for input into the bill.

“When I say we offered them a seat at the table it was, literally, ‘Come write the bill with us. Here’s a list of principles and tell us how you’d like to write it,’” said a Democratic staffer who worked on the bill in the Senate. “It could not have been a more welcoming process, but there was very little input offered.” After initial signs of engagement on the issue, Republican offices stopped responding to emails from Democratic staffers. (The offices of Sens. Snowe and Collins also did not respond to repeated requests for comment for this story.)

But by allowing a vote on the same bill that had passed the House and not anticipating the attacks that would be leveled against it, Senate Democrats failed to move the bill and, worse, lost the battle of public perception over whether the bill was a push for transparency or a thinly veiled attempt to sway the outcome of the pending midterm contests in their favor.

By the time the bill was slated to be brought up again in Congress for a vote in late September, it suffered from a breakdown in trust. Both sides realized that the current bill was a nonstarter, but there was no time in the packed legislative schedule to take the multiple days required to introduce a new, stripped-down version. Instead, Democrats urged Snowe and Collins to vote for cloture on the bill as it stood, on the assurance that the Democratic leadership would scrap whatever the senators didn’t like when it came time for debate and amendments. But such a deal would have required the confidence of all parties.

“My understanding — and I’ve talked to both Republican and Democratic offices — is that Democrats were saying, ‘Well, just tell us what you want,’ and Republicans were saying, ‘Tell us how you’ll change it and then we’ll talk,’” said Meredith McGehee, who lobbies for greater transparency in campaign finance for the Campaign Legal Center.

Other campaign finance reform advocates take a more cynical view. “A pared-down version was being discussed in the last round and that wasn’t what the issue was,” said Craig Holman, a campaign finance expert at Public Citizen, a citizen lobby group. “The Republicans, down to Collins and Snowe, even though their public denunciations were about unions, none of them ever meant that. All they wanted was anonymous corporate support in 2010 and 2012.”

In either case, the Maine senators, having already decried the bill once, cited their same complaints and voted ‘no’ once again. A vote for cloture was too close to a vote for the bill itself, and moreover, it opened the door to the possibility of Democrats pulling a fast one and passing the bill without amendments, denying them any input and earning them the wrath of the Republican caucus for enabling Democrats to enact their agenda. The bill failed to overcome a filibuster by a single vote.

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Now, facing a lame-duck session with a host of pressing items on the agenda — from the START Treaty to an unemployment extension to the expiration of the Bush tax cuts — Senate Democratic leaders are skeptical that a disclose-only bill can earn Republican support. On the one hand, it would address the bulk of Republicans’ complaints about the current bill, but on the other hand, trust is so frayed that neither side is able to receive assurances as to the other’s thinking on the issue.

The impending seating of a new Republican senator later this month, special election winner Mark Kirk of Illinois, has added a new element of suspense to the mix. While his arrival raises the bar of Republican support required to proceed with debate, some campaign finance experts see in Kirk the kind of moderate voice who spoke in favor of better disclosure laws on the campaign trail and could champion a stripped-down bill as a triumph of good, clean government over the larded Democratic bill. But others doubt that casting a vote against the wishes of Senate Minority Leader Mitch McConnell (R-Ky.) — who has made a personal mission out of rolling back campaign finance laws — is high on the to-do list of the incoming freshman senator. (Requests for comment from Kirk’s office were not returned by the time of publication.)

Even if the bill is unlikely to pass, argue some advocates, at least Democrats could finally get Republicans to go on the record definitively on the issue of disclosure.

“Bring up a bill with just the disclosure provisions and take away a number of arguments that we feel are not correct but others have used to make excuses about not voting for it,” said Fred Wertheimer, president of the campaign finance reform group Democracy 21.

Whether the benefits of a symbolic vote on disclosure outweigh the importance of floor time that could be spent on other issues, however, remains an open question. Senate Majority Leader Harry Reid’s (D-Nev.) office said that Reid will defer to Schumer on the content of the bill and that the Democratic leadership has not yet reached any decisions on what it will push in the lame-duck session.

But Holman, speaking on the eve of the election, was less hopeful. “If the results are a fairly sweeping Republican victory,” he said, “then I would fully expect the lame-duck Congress to honor the tradition of doing lame-duck work.”

The New York Times obtained a draft of a confidential memo to be distributed to all incoming House Republican lawmakers, in which Armey and FreedomWorks president Matt Kibbe tell lawmakers that working to repeal health care reform is “nonnegotiable,” and they’ll become the target of a major backlash if they don’t succeed in doing so.

“Politically speaking, your only choice is to get on offense and start moving boldly ahead to repeal, replace and defund Obamacare in 2011, or risk rejection by the voters in 2012,” Armey and Kibbe wrote.

Meanwhile, Erikson wrote yesterday, “We have a significant opportunity to improve the Senate GOP through some primaries [in 2012],” and he provided a list of all the Senate Republicans up for re-election in the next cycle:

John Barasso (WY)
Scott Brown (MA)
Bob Corker (TN)
John Ensign (NV)
Orrin Hatch (UT)
Kay Bailey Hutchison (TX)
Jon Kyl (AZ)
Richard Lugar (IN)
Olympia Snowe (ME)
Roger Wicker (MS)

Note that this is just the list of Senate Republicans running. Not all will be targets, but it will be from these men and women that the tea party movement starts looking for targets.

Now, before you all get giddy about Olympia Snowe, I would respectfully suggest that Corker, Hatch, Hutchison, Lugar, and Wicker make better targets as we have a much greater certainty of both beating them in primaries and also winning the general election.

Wicker and Corker in particular make exciting prospects for the tea party movement.

At this point, the aforementioned writings represent idle threats and not any sort of movement with real popular backing. But with the experiences of their successfully primaried colleagues like Sen. Bob Bennett (R-Utah), Rep. Mike Castle (R-Del.) and Sen. Lisa Murkowski (R-Alaska) fresh in the minds of most Republican congressmen, such threats might be enough to keep them marching in lockstep with the Tea Party’s demands throughout the next legislative session.

“Candidates matter,” said Sen. Lindsey Graham (R-S.C.). “It was a good night for Republicans but it could have been a better one. We left some on the table.”

Referring to the debate within the right about whether the party was better off losing the Delaware seat than winning with a moderate Republican like Rep. Mike Castle, who lost the GOP primary to Christine O’Donnell, Graham was even more blunt.

“If you think what happened in Delaware is ‘a win’ for the Republican Party then we don’t have a snowball’s chance to win the White House,” he said. “If you think Delaware was a wake-up call for Republicans than we have shot at doing well for a long time.”

Republicans took extra care to blast DeMint, who lavished millions on Tea Party candidates, like O’Donnell, who were not the preferred pick of the establishment. Conservatives were quick to fire back that the NRSC wasted $8 million in California on a fool’s errand trying to unseat Sen. Barbara Boxer (D) — money that could have been better spent in tight races.

But does the GOP establishment’s blame game have any merit? On an race-by-race basis, the answer is most likely yes. Castle was a popular House representative who could have easily won Delaware, while Sen. Harry Reid’s (D-Nev.) negatives were high enough that only a figure as polarizing as Angle seemed capable of making him look like the lesser of two evils to Nevadans.

Candidates don’t run in a vacuum, however, and blaming the Tea Party for the loss of a few seats misses the point that the movement undoubtedly provided the energy and enthusiasm to win an historic wave in Congress. Without the Tea Party, in other words, Republicans might have beaten Reid, but it’s unlikely that longtime Democratic congressmen like Reps. John Spratt (S.C.) and Ike Skelton (Mo.) and Blue Dogs like Reps. Baron Hill (Ind.), Zack Space (Ohio) and Patrick Murphy (Pa.) would have all been defeated.

You don’t have to go far back in time to get another example of this phenomenon. The Netroots largely failed in getting liberal candidates — like Ned Lamont — elected to statewide office, but few would deny the important role the Online Left played in generating momentum for Democratic wave years in 2006 and 2008.

“I’ve never been a surrogate for Sharron Angle. I’ve never spoken on her behalf,” he said. “I simply expressed my views on the Senate race, which I have a First Amendment right to do.”

Tarkanian, however, said he had planned to officially speak for Angle at an event this week, but backed out after he learned of the complaint.

Phoebe Sweet, a spokeswoman for the Democrats, said the withdrawal, “is clearly an admission of guilt that Angle and Tarkanian have been illegally coordinating and have now been caught red-handed.”

With the election season heating up, complaints of campaign finance improprieties filed by political rivals like this one are growing more and more common. The DCCC levied a big complaint with the IRS against Americans for Prosperity the same week the group was hosting its big Washington, DC, confab in August; Republicans in Colorado filed an FEC complaint against now-GOP Senate candidate Ken Buck during his primary run against Jane Norton; and the Delaware State GOP attempted the same thing against the Christine O’Donnell campaign and Tea Party Express when things started looking grim for Rep. Mike Castle (R-Del.) in his GOP Senate primary.

Sometimes the complaints have merit, but often they are just a way for political rivals to wrestle up negative coverage, notes Richard Hasen, a Loyola Law School elections law professor. But then again, “Anytime you have someone wearing two hats, there is the risk of illegal coordination,” Hasen adds.

But five months later, the group of 34 has emerged from primary season not much worse for the wear. Every one of the 30 lawmakers who voted against the health care bill and is seeking another term won re-nomination.

Of course, Democrats’ laissez faire attitudes towards their candidates’ diversity of views is one of the reasons they were able to claim such a large majority in 2008, but the lack of an effective means of enforcing party discipline though effective primary challenges poses its own problems.

With no fallout for bucking their party on health care, wavering Democrats will likely experience few incentives to tow the line on other tough issues, like energy or immigration. There’s a fine line between promoting inclusiveness and enforcing orthodoxy, and it’s one with which both parties are evidently still struggling.

On the first question, the Washington Post’s Chris Cillizza cites three reasons: big margins of victory for O’Donnell in the more rural and conservative southern and central parts of Delaware, Castle’s unwillingness to court voters in those areas at all, and the fact that by the time Castle realized he had a problem, it was probably too late.

Cillizza’s critique of Castle is consistent with the complaints conservative tea party activists raised with me during interviews I conducted last week. While it’s unclear whether any degree of outreach would have swayed these folks, tea party group leaders repeatedly referenced the fact that Castle never responded to their requests to show up at their candidate forums, solidifying the impression among voters that he was arrogant and out of touch with the people of his state. Says Cillizza:

While Castle attacked O’Donnell relentlessly over the final two weeks of the race, he did little to hide his disdain for the tea party movement — a purposeful poking-in-the-eye that almost certainly revved up the conservative base against him.

One exasperated Republican strategist noted that Castle repeatedly reminded voters that O’Donnell didn’t have Washington experience — accidentally highlighting a major plus for her in the eyes of voters looking to shake up the status quo.

But now Republicans appear more interested in trying to broaden the map by reaching for West Virginia and Connecticut, where they’re running self-funding candidates, than in trying to back a candidate like O’Donnell, who has little cash and much baggage.

“We will look at the best way to allocate our resources,” is all National Republican Senatorial Committee spokesman Brian Walsh would say when asked if the committee would support O’Donnell.

Privately, though, senior Senate officials signaled that they were almost certainly finished with Delaware.

The bulk of the frustration, meanwhile, seems concentrated on Sen. Jim DeMint (R-S.C.), who threw himself into the Delaware race on behalf of O’Donnell against the wishes of most Republicans. DeMint, hardly a favorite among his colleagues as it stood, is now being blamed for imperiling any chances of a GOP takeover of the Senate, but he’s not taking the criticism lying down:

“It speaks volumes that in Jim DeMint’s world, the ‘principles of freedom’ are more important than a candidate who pays their taxes, is honest with voters and who isn’t a complete fraud,” said a senior GOP aide. “Senator DeMint may be patting himself on the back tonight but many Republicans look forward to post-November 2nd when he has to explain why he helped the Democrats retain the majority for yet another two years.”

Firing back, DeMint spokesman Matt Hoskins said: “Based on the number of Republicans DeMint has helped get elected this year, I would say he’s done quite a bit to elect a majority. Perhaps the real reason some Washington insiders are upset is that these Republicans actually have principles.”

The two most closely watched races will be in Delaware and in New Hampshire. In Delaware, tea party Senate candidate Christine O’Donnell looked to be stumbling in her race against Rep. Mike Castle (R-Del.) before getting some important endorsements and even more important polling numbers this weekend. In New Hampshire, long time GOP favorite Kelly Ayotte is facing some heat from attorney Ovide Lamontagne, who snagged an endorsement from tea party celeb Sen. Jim DeMint (R-S.C.) last week.

The story for November is the same in both races: Castle and Ayotte look like easy favorites to win their respective Senate seats, while O’Donnell and Lamontagne would turn the races into toss ups, at best, pushing the Republicans that much further away  from capturing the Senate.

The primaries — which are also taking place in Maryland, Massachusetts, New York, Rhode Island, Wisconsin, and the District of Columbia — feature tea party candidates on the GOP primary ballot in New York and Wisconsin as well, prompting the Wall Street Journal to question whether the whole insurgent movement is working out so well for Republicans after all:

Mississippi Gov. Haley Barbour, chairman of the GOP’s gubernatorial campaign committee, said the party will benefit from keeping the tea party within its ranks.

“It would have been far, far, far worse if tea party candidates had decided to run as independents,” he told reporters last week. “I hope they would continue in the next cycle to run as Republicans, and I believe they will, because I believe the evidence is clear that they got a fair shake. They were welcomed and they participated, and in some places won primaries.”

The tea party movement has clearly played a big role in generating the “enthusiasm gap” between Republicans and Democrats — one of the primary factors that pollsters have been pointing ominously towards when they make predictions about big Republican gains in the fall. But then there are the numerous times that the movement has propelled fringe candidates who might ultimately hurt their party’s chances to the forefront — candidates like today’s New York GOP gubernatorial hopeful Carl Paladino:

In New York, some Republicans give Carl Paladino, a real-estate millionaire, little chance of winning the governor’s race if he beats former Rep. Rick Lazio for the GOP nomination. Mr. Paladino’s self-funding campaign has gained attention for his denunciations of both political parties and for such proposals as using empty prisons to train welfare recipients and the unemployed in new job skills and “personal hygiene.”

“The concern is that Paladino, because of his past statements, will be characterized as being not ready to be governor,” said John Faso, the last Republican nominee for governor in New York. “If Republicans are sullied or embarrassed by a candidate at the top of the ticket, then you could adversely affect turnout.”

Not too much has changed for O’Donnell in the interim, with the exception of an endorsement from Sarah Palin on Thursday night and another show of support on Friday evening from Sen. Jim DeMint (R-S.C.) via Twitter, meaning these nods may be proving important:

Just 35 percent of Delaware Republicans said that they were more likely to vote for someone who had Palin’s support, while 24 percent viewed Palin’s endorsement as a negative factor, and 41 percent had no opinion.

But among those who saw Palin’s support as a positive, O’Donnell led Castle by an enormous margin of 83 percent to 13 percent.

The other big story in the polling data is Castle’s approval numbers, which have sunk significantly in the last month. While the moderate Republican has had a long and successful career representing Delaware for nearly two decades, his votes with Democrats on a few key issues this past Congress (like the Waxman-Markey House climate bill) have been getting trotted out a lot recently by right wing activists eager to see him go.

Recent polls also show that if O’Donnell does pull off an upset tomorrow, Democrat Chris Coons has a much better shot at winning the seat.

The complaint — which The Atlantic’s Chris Good links to in full here — makes two claims, one of which is basic, the other a bit more complex. First, it argues that Tea Party Express and the O’Donnell campaign have engaged in message coordination over the outside group’s advertising. This is your basic “you can’t share strategy, messaging, or resources, etc.” kind of allegation.

Second, however, the complaint argues that Tea Party Express solicited donations that were specifically earmarked to support the O’Donnell race, and that such fundraising is illegal. The Delaware GOP is making this case by arguing that federal campaign law considers earmarked funds to be the same thing as contributions to a candidate, and that Tea Party Express therefore solicited individual contributions to the O’Donnell campaign that were in excess of contribution limits.

Because the Tea Party Express didn’t actually donate its earmarked funds to O’Donnell, my guess is that the FEC, especially in its current riven state, probably won’t agree with the Delaware GOP on this one. But if it does, Good notes that it’ll have a major impact on a number of outside groups, not just Tea Party Express, that engage in the same fundraising practices.

Yesterday evening, however, as I report today in my story about O’Donnell’s chances, Palin made things official. The former Alaska governor announced her endorsement on Sean Hannity’s radio program and also on her Facebook page. ”We can’t afford ‘more of the same’ in Washington,” she wrote. “Christine will help usher in the real change we need to get America on the right track.”

But with less than four days until the Delaware GOP primary, will it really matter? Palin’s endorsements throughout the midterm season have received a lot of attention, but she’s only batting about .500 when it comes to the success of her chosen ‘mama and papa grizzlies.’ Chris Good at The Atlantic, for one, thinks the endorsement might have less to do with Palin’s feelings about O’Donnell or her chances on Tuesday and more about simple repayment to Tea Party Express, the group that backed her up in launching Joe Miller over Sen. Lisa Murkowski (R) in Alaska.

There’s no doubt that Palin’s endorsement will focus still more national attention on the Delaware race and maybe help even out the fundraising deficit that O’Donnell faces. Even with the Tea Party Express pledging to to spend $250,000 on O’Donnell’s behalf, it doesn’t come close to Rep. Mike Castle’s (R-Del.) haul of $3.2 million, the bulk of which he is reported to still have on hand.

But national attention, I point out in my article, is not what O’Donnell lacks. The Tea Party Express and the national media, both eager talk up a possible upset in Delaware for different reasons, saw to that several weeks ago, and the increased scrutiny has done nearly as much to hurt her campaign as it’s helped.

On the local level, her endorsement will only work if it drives turnout among the O’Donnell faithful (mostly in southern Delaware), but it’ll backfire if it provokes more moderate Republican voters (mostly in the more populous northern part of the state) to realize the stakes of the election and come out in droves for Castle. Because O’Donnell and the Tea Party Express had already succeeded in getting the conservative base excited and eager to vote well before Palin ever got involved, my bet is that the nod will do more to energize her opponents that her supporters.