Organizations required to register and report under New York’s new lobbying disclosure laws have begun to seek exemptions to protect their donors from anticipated reprisal or harassment. This concern for donor privacy was once most prevalent among conservative critics of political regulation, more on the “right” than on the “left,” or at least its articulation there has been most prominent. It was also once primarily an issue in campaign finance disclosure. See, e.g., Buckley v. Valeo, 424 U.S. 71, 74; Brown v. Socialist Workers, 459 U.S. 87 (1982). It seems, however, that the argument is finding favor across the political spectrum and has spread to the regulation of lobbying. Putting aside particular cases and their merits, it is a development with much to suggest about the confused state of mandatory disclosure policy.

Justin Levitt and Brad Smith are each top-flight thinkers about campaign finance who bring very different perspectives to issues in their field. Now a Professor at Loyola, Justin’s affiliations have included the Brennan Center for Justice. Brad, a Professor at Capital University Law School, founded and chairs his own Center, (the Center of Competitive Politics) and the two Centers are not at all alike in outlook or mission. Levitt and Smith have each recently written a piece—Levitt on the contribution/expenditure doctrine, Smith on the regulation of tax-exempt organizations—that, read side by side, track major, persistent disputes in political law. Each gets much right, but then overstates his case. For Levitt, his defense of regulation comes at the price of an understanding of the political costs. Smith is highly skeptical of regulation but in a way that gives short shrift to one complex regulatory goal that will not go away—public disclosure of certain kinds, and at certain levels, of spending to influence politics or policy.

Edmund Corsi from Ohio has strong views about politics and political candidates, and he makes them known through a website, and in other ways, in the name of the Geauga Constitutional Council. Corsi was called on to answer to the Ohio Elections Commission for failing to register a “political committee” under Ohio state law. Corsi lost there, and then in two appeals, and the Center for Competitive Politics has petitioned for writ of certiorari, challenging the basis upon which Ohio has applied its definition of a “political committee.” Ohio Rev. Code. Ann. § 3517.01(B)(8).

DOJ is taking an exceptional action in suing for large fines against an "habitual" violator of the federal lobbying disclosure laws. United States of America v. Biassi Business Services, Inc., No. 13-0853 (D.D.C., filed June 7, 2013). The delinquencies alleged in the Complaint, for late or unfiled reports, are sobering: 28 quarterly reports and 98 semi-annual reports since 2009. Even the remedial actions taken, the Complaint alleges, lagged behind the statutory requirement, indifferent to the 60 day deadlines for correcting problems once the filer is officially notified of them. The U.S. Attorney’s arrival on the scene to issue additional warnings apparently had little effect: the defendant “ignored or failed to respond to numerous letters sent by the U.S. Attorney’s Office…” Id at 11. Assuming the facts as alleged, this first enforcement action hardly qualifies as an overreaction or a trial run of an innovative enforcement theory. And yet it is a “first.” So it is an occasion for considering the relative weights assigned as a matter of federal law and policy to the two disclosure regimes of campaign finance and lobbying.

The Bright Lines Project is a production of experienced tax law specialists seeking a clearer, more predictable test for “political intervention by 501(c)(4) organizations. In a detailed Drafting Committee Explanation, the team (including my partner Ezra Reese) lays out its proposed test and the rationale for it, and additional explanation of their goal appears in an op-ed written by Gary Bass and Beth Kingsley. The Bright Lines Project: Clarifying IRS Rules on Political Intervention (Interim Draft, May 23, 2013). What the Project authors have come up with is constructive and interesting, but this is the key question: does its utility lie in a fruitful application to the tasks the IRS faces, or in showing that even well-reasoned, thoughtful tests will bog the agency down in the political analysis—and therefore political resistance and controversy—that it is or should be trying to escape?