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.

In a policy paper just published by the Cato Institute, John Samples takes up the constitutional amendments proposed in response to Citizens United and attempts to expose their dangers. Samples, a distinguished scholar of campaign finance, has much to offer here, regardless of where a reader stands on the feasibility of these proposals. It may be true, as Samples writes, that the constitutional amendments he criticizes “provide answers to constitutional questions, not a means for courts to reconsider those questions.” John Samples, Move to Defend: The Case against the Constitutional Amendments Seeking to Overturn Citizens United (April 2013) at 9. They do provide a means for others to reconsider those questions. And, in fact, Samples’ analysis leads him to return to first principles and to ask the question: what control should we entrust to the government in matters of campaign finance, and on what theory?

Mark Schmitt has replied effectively and thoughtfully to Ezra’s Klein’s warning about small donors and their politics. Klein contends that we are overlooking the polarizing tendencies of small contributions made by Americans at the extremes of our politics. He argues that, just as small donations are becoming the stuff of myth, big money, while more “corrupting,” gets less credit than it should for pushing against polarization: “Big money often wants the two parties to get along” whereas small money exacerbates political divisions. Schmitt questions Klein’s claims about the part that big or small fundraising plays in either promoting or lessening polarization—and he decries “cynicism about money and reform that seems to be infecting the wonk class.”

In concluding that the IRS used “inappropriate criteria” in screening tax exempt applications, an Inspector General’s review cites as one source of this mismanagement “confusion” among employees about the law. The report recommends further internal guidance on the nature of an organization’s “primary” activity, and training or workshops designed to educate staff about “ political campaign intervention versus general advocacy.”

Discussion of the IRS’ mishandling of the tax exempt applications process might include a fundamental question: what role do we want to assign the IRS in approving tax-exemptions for groups engaged in one form or another of political, legislative or policy activity? And to keep the discussion still simpler, stripped of an additional complicating factor, the focus might be mostly on 501(c)(4) “social welfare organizations,” which, unlike their (c)(3) kin, do not offer donors a tax deduction and raise the additional issue of tax subsidies.