To Michael Malbin’s credit, he is taking seriously the political parties’ complaint about the terms under which they must compete for resources and influence with “outside” or independent groups. He accepts that a “rebalancing” is in order, and he proposes a compromise: more room for parties to coordinate their spending with candidates, in return for tighter enforcement of coordination rules against independent expenditure groups. He calls this a “third approach” to reform that which rejects both full de-regulation of party spending and any frontal challenge to the constitutional protections for independent spending.
The authors of the Bright Line Project proposal for ferreting out and regulating 501(c)(4) political intervention have given the matter a considerable amount of thought and have submitted to the IRS a detailed proposal. In a number of respects, the approach that they originally announced has changed. Its purpose, however, remains one of offering clarity where now there is very little, much to the frustration of practitioners looking to offer clear guidance to their clients. It is a worthy project and addresses a major problem: no one knows what distinguishes social welfare from electioneering activity, and the consequences of the confusion have been plain for all to see.
At the same time, the proposal has to answer the question of whether it is possible for the Internal Revenue Service to tackle questions like this with a reasonable prospect of general public acceptance and confidence. There is reason to doubt it. For as noted in analysis of an earlier Bright Line Project proposal, and as seems still true in this revised version, the agency would have considerable discretion in deciding whether 501(c) communications have crossed into the restricted political zone. And this task—operating within the political world—is one which tax agency officials are not trained or well suited for, nor expected to be.
In a second round, at the second level of the Chevron test, a federal district court has struck down the FEC's attempt to read a "purpose" requirement into the “electioneering disclosure” rule. Van Hollen v. Federal Election Commission, No. 11-0766 (ABJ), 2014 WL 6657240 (D.D.C. November 25, 2014). The general view is that the Court probably got this right and that to the extent that the issue has remained unresolved for this long, the FEC (once again) should take the blame. Those adopting this position point to Judge Jackson's opinion, in which she lays out in some detail the obscure route by which the FEC arrived at its position.
But, as so often, the FEC is paying handsomely for the complexity of the issue and the sins of others. A fair share of the responsibility for this disclosure controversy lies with the Supreme Court's garbled jurisprudence, which has produced confusion about the constitutionality of campaign finance requirements applied to “issues speech”.
- Coordination Controversy in the Twitterverse
- On Bush v. Gore and “Bad Hair Days” at the Court
- Campaign Finance Deadlock, Part II: Campaign Finance Reform as Reform of the Electoral Process
- Campaign Finance Deadlock, Part I: “Undue Influence” Theories and the Cost-Benefit Calculation
- Money in the Midterms, and Beyond
- The Different Complaints about Judicial Politics
- The FEC, the Internet Squabble and the February Hearing
- Entry Points for a Conversation about Campaign Finance
- Thinking about the Paths for Campaign Finance Regulation
- Crawford and the Politics of Voter ID