One theme in the narrative about the IRS is that it faces a special challenge in enforcing the (c)(4) rules in the wake of Citizens United. A (c)(4) organization, which is typically a corporation, can make independent expenditures, so long as this campaign activity and others do not make up its primary purpose.
Two basic reform models have been advanced to protect against the misuse of these nonprofits to make these and other campaign-related expenditures. One is that the Service should generally employ more rigor in rooting out organizations that have exceeded their limit for political activity. Another is that the IRS should change its rules, switching the test from a "primary” social welfare purpose to an "exclusive one" without any campaign activity mixed in, and rid itself of the problem altogether: effectively, the no-tolerance option.
In both cases, however, the proposed solutions may have to scale steep walls erected by Supreme Court precedent. These issues have to be taken into account in judging the role that IRS enforcement can play in campaign finance regulation.
- A new recipe for election reform
- Professor Briffault on Super PACs and the Question of “Coordination”
- Justice O’Connor’s Second Thoughts
- Professor McConnell’s Defense of Citizens United
- The FEC and the Contribution Limits of Same-Sex Couples
- The Right to “Do Politics” and Not Just to Speak: Thinking about the Constitutional Protections for Political Action
- Campaign Contributions in the Criminal Law
- The McCutcheon Case and the Contribution/Expenditure Limit Problem