The FEC Offers a Hand—Or Two Hands—to the IRS

February 28, 2014
posted by Bob Bauer

Under the federal campaign finance laws, the FEC and the IRS are directed to “consult and work together” in making their rules “mutually consistent.” 2 U.S.C. § 438(f). The IRS now proposes new 501(c)(4) tax exempt advocacy rules, responding to campaign finance controversies associated with the old ones, and the time has come for it to “consult and work together” with the FEC.  But the FEC Commissioners don’t themselves “work together” very well on these issues and so, splitting along party lines, they have presented two views to the Service. The difference in viewpoint is predictable—Democrats favor disclosure, Republicans are suspicious of it—but the real interest of these submissions lies more in the strategies behind these presentations than in their substance.

Here, then, are summaries of each set of comments, following by a “translation” into more straightforward terms of what rival camps are really trying to say and do.

The Democrats

Argument: The IRS is not obligated to the defer to the FEC.  Its role in enforcing the tax code is independent of the FEC’s mission in its own, separate domain.  At the same time, tending to its business, the IRS should recognize the value of disclosure, particularly at a time when shadowy groups are spending so much “political money.” In any event, there is no unified FEC for the IRS to consult: the agency is divided on the fundamental regulatory questions and can’t advise the Service clearly, with one voice.

Translation: Our agency is in shambles on this issue—don’t come anywhere near us.  Nothing good can come out of it. But take it from us on this side of aisle: you can and should still read your statute without our help to allow for strengthened disclosure. So while respectfully suggesting for the record that this is really none of our business, we have a few thoughts about what you might do.  Among them: don’t hesitate to impose disclosure requirements on activities we have been unable to reach.  After all, a town could always use two sheriffs if one is somewhat incapacitated.

The Republicans

Argument: These tax exempt advocacy rules touch on vital First Amendment rights. Congress directed the agencies to work together on rules like this, and it is quite right that they should: the IRS is a revenue collection agency that does not possess the FEC’s experience and expertise in fashioning rules that govern political speech and association. Moreover, only by paying attention to FEC rules and precedent can the IRS hope to achieve harmony  and reduce conflict to the extent possible between the two regulatory regimes.

Translation:  Based on what we have seen of your proposed rules, we can see that you folks may run wild and erect a speech-crushing and association-demolishing disclosure program. Stick to taxes and “harmonize” your rules with ours. This should work far better than your going off on your own, because our steadfast disharmony as an agency will result in a “harmonization” with our rules that we can live with. The worst that can come of this disharmonious harmonization process is that nothing happens, and that you’re stuck: welcome to our world! But should you choose to closely consider our views, we  could perhaps impart to you a little of the First Amendment sensitivity that you plainly lack.

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