A funny thing happened after Citizens United, the 2010 Supreme Court ruling that tossed out decades-old campaign-finance laws and allowed corporations, unions and so-called dark-money groups to spend unlimited sums on American elections.
Democrats, who had warned that the decision would unleash a torrent of undisclosed money in support of Republicans, learned to love it.
As my colleagues Kenneth P. Vogel and Shane Goldmacher have reported, “donors and operatives allied with the Democratic Party embraced dark money with fresh zeal” during the 2020 election, “pulling even with and, by some measures, surpassing Republicans.”
According to OpenSecrets, a group that tracks money in politics, “outside groups” — that is, organizations independent from the official party committees and campaigns — spent $4.5 billion in the decade after the Citizens United ruling, up from $750 million during the previous two decades.
Much of that money came from wealthy individuals. The top 10 donors and their spouses spent $1.2 billion on federal elections during the same period. In 2018 alone, that same group was responsible for 7 percent of all election-related giving, up from 1 percent in 2008.
Democrats, even as they embraced campaign-finance reform, often said they would not “unilaterally disarm” in the face of Republican big-money groups. In Senate races like Representative Martha McSally’s 2020 special election in Arizona — which she lost to the former astronaut Mark Kelly — they buried their opponents with television advertising bankrolled by dark money. And even where Democrats came up short, as they did in a national effort by liberal donors to oust Senator Susan Collins of Maine, super PACs aligned with the party swooped into hotly contested races.
Karl Evers-Hillstrom, a researcher with OpenSecrets, noted in a 2020 report that 2018 was “the first election cycle since Citizens United that liberal nonparty outside groups outspent their conservative counterparts.”
So, as Democrats have embraced the world of dark money, some Republicans have begun to take a second look at Citizens United.
Don’t get me wrong: “Campaign-finance reform” is still very much a Democratic project.
A bill in the House calling for a constitutional amendment to abrogate the Citizens United ruling and allow states to regulate money in elections as they see fit has just one G.O.P. co-sponsor: Representative John Katko of New York, who is retiring at the end of his term this year. Katko supported the impeachment of President Donald Trump after the storming of the Capitol on Jan. 6, 2021, so he’s not exactly a bellwether of Republican sentiment in Congress.
But this week, as I tagged along with members of American Promise, a nonpartisan group promoting a 28th Amendment to the Constitution that would track closely with Katko’s bill, I found some faint signs that the winds were shifting on the right.
American Promise recently hired a new executive director, Bill Cortese, who came up through the ranks of the Republican operative class. A onetime campaign aide to former Representative Chris Shays, a Connecticut Republican who sponsored what became known as the McCain-Feingold Act in 2002, Cortese has worked for Gov. Chris Christie of New Jersey and for Mercury Strategies, a government-affairs firm that works with Democrats and Republicans alike.
Cortese is helping the group hone its pitch to Republicans — talking up shared concerns about the role of Silicon Valley billionaires in elections, for instance, and finding allies in the business community who can relate to conservative lawmakers wary of anything that smacks of liberal do-gooderism.
One surprising proponent of the group’s proposed amendment is Doug Mastriano, the hard-right Pennsylvania Republican state senator who is now running for governor. On Sept. 21, Mastriano, who is being vastly outspent by his Democratic opponent, introduced a resolution with five other Republicans expressing support for the idea.
A few local chambers of commerce, normally bastions of Republican Party support, have signed on, too. David Black, a former aide to Gov. Tom Ridge of Pennsylvania and a past president of the Harrisburg Regional Chamber who is active in American Promise, is a champion of the concept. Rick Bennett, a Republican state senator and former majority leader from Oxford, Maine, spoke at American Promise’s conference this week in Washington.
In Maine, a group called Protect Maine Elections has pitched the proposed amendment as a means of regulating foreign money that has flooded the state amid a fierce political battle over power-transmission lines promoted by Canadian and Spanish companies.
The U.S. affiliate of one Canadian utility, Hydro-Québec, “built an army of foreign agents in the lead-up to the Nov. 2 referendum,” Anna Massoglia of OpenSecrets reported. “Those foreign agents reported more than $2.5 million in payments as part of the influence operation since 2020.”
The hard part
The bar for passing a constitutional amendment is high by design. It takes two-thirds votes of both the House and Senate just to propose one, or a convention requested by two-thirds of the 50 states. Then, three out of four state legislatures — a total of 38 — have to ratify it in order for it to become law.
That’s why we have only 27 amendments so far. The last one, which prohibits Congress from raising its own pay — increases may take effect only after an intervening election — passed in 1992 after a decade of concerted lobbying.
Persuading Republican senators to sign on would be exceedingly difficult.
On Wednesday, the actress Debra Winger, a board member of American Promise, prepared activists from the group before they headed toward Capitol Hill on Thursday, serenaded by a bagpiper, for brief meetings with aides to Senators Collins, Lisa Murkowski of Alaska and Marco Rubio and Rick Scott of Florida, along with Representative Scott Perry of Pennsylvania and a few other Republican House members.
They emerged encouraged that they had found an audience, but they received no firm commitments of support.
“I applaud what they’re doing. It’s important work, and we need these conversations. But in Washington, Republicans have not gotten better on this,” said Adam Bozzi, vice president of communications at End Citizens United, a left-leaning group that supports overhauling campaign-finance laws. “And the Supreme Court is getting worse.”
Last week, Republican senators blocked a vote on a Democratic-sponsored bill to require any organization spending money during a federal election to disclose donors of $10,000 or more. News outlets, fully expecting the bill to fail, barely covered it.
Collins, for one, was a co-sponsor of McCain-Feingold and has criticized the Supreme Court’s ruling in Citizens United. But she has waffled on new disclosure laws, backing one proposal years ago by Senators Angus King of Maine and Jon Tester of Montana while opposing others.
Senator Tim Kaine, Democrat of Virginia, has said that restrictions on election spending are a no-go for Mitch McConnell of Kentucky, the Senate minority leader.
On the state level, the picture is mixed. In several states, including Missouri and South Dakota, voters have passed ballot initiatives to restore some controls on campaign finance. In 2012, a Republican-held legislature in Montana passed a law to regulate dark money, but it was thrown out by a federal court.
Since then, Montana seems to have gone in the opposite direction. In February, State Senator Steve Fitzpatrick, a Republican, introduced a bill that would relax certain disclosure rules, which he said was intended to toss out “nit-picky things that we’ve all grown to hate in our campaign-finance system.”
Gov. Greg Gianforte, who has been accused of violating campaign-finance laws, signed a version of the bill in May.
What the voters think
If there’s any hope for the long-shot 28th Amendment project, it’s this: Polls show widespread public dissatisfaction with the role of money in American politics.
A 2018 poll by the Center for Public Integrity, for example, found that 66 percent of Republicans backed a constitutional amendment to reverse Citizens United.
In a CBS News poll in August, 86 percent of all voters listed “influence of money in politics” as one of the top threats to democracy — higher than “potential for political violence” or “attempts to overturn elections.”
Private polling by Global Strategy Group and Impact Research, which work primarily for Democrats, has found that 92 percent of voters in battleground states agreed with the statement “End dark money by making all political contributions transparent.”
Those kinds of numbers suggest, at a minimum, that Republican Party leaders are at odds with their constituents when it comes to money in politics, giving groups like American Promise at least an opening.
“Republican voters,” Bozzi said, “don’t like this.”
What to read
As a congressman in 2013, Ron DeSantis voted against federal aid for the New York region after Hurricane Sandy, calling it irresponsible. But as governor of Florida during Hurricane Ian, his state needs help, Matt Flegenheimer writes.
Six Republican-led states took legal action to try to block President Biden from erasing billions of dollars in student loan debt, Michael Shear reports.
J.R. Majewski, a U.S. House candidate in Ohio, promotes himself as a combat veteran, but the Air Force has no record of it, Neil Vigdor writes. Now, there is evidence he was demoted for drunken driving, despite his claims to the contrary.
In her race for governor, Katie Hobbs, a Democrat, has struggled to compete against Kari Lake. Jack Healy and Jazmine Ulloa report from Arizona, where Hobbs is speaking in highly personal terms about the need for abortion rights.
Boris Epshteyn, one of former Donald Trump’s most prominent lawyers, testified before a special grand jury in Atlanta as part of a criminal investigation into election interference, Danny Hakim and Sean Keenan report.
Thank you for reading On Politics, and for being a subscriber to The New York Times. — Blake
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