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.

It is disconcerting to discover that Brad Smith is disappointed in an earlier posting here. He holds strong views on political law issues but he expresses them clearly, expertly and with principled consistency: he rightly says that he has maintained an independent position against even the expectations, on some issues, of natural allies in the Republican Party. Now Brad expresses frustration that I misrepresented his tone and argument in an exchange with Paul Ryan of the Campaign Legal Center over the IRS's proposed regulation of 501(c)(4) political activity.

Immediately upon the Treasury and IRS's publication of proposed rules on 501(c)(4) activity, the political jockeying began. Reformers said high time; critics replied that the suppression of free speech was at hand. The IRS Notice is not all that dramatic because what the Service may eventually do is up in the air: the IRS invites comments on all aspects of the definition of (c)(4) political activity. There is no way of knowing how this will all end up many months from now. But the IRS appears to be doing what both sides had demanded that it do for different reasons—improve on current rules—and its notice of proposed rulemaking simply calls for comment on a baseline proposal, which is fairly normal for this type of agency rulemaking setting. This is a reasonable place to begin.

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.

Here is another reply by Greg Colvin, answering the second post here on the topic. Colvin picks up on the last word of the June 5 posting—“intent”—and argues that it is well settled that the IRS does not look into intent when judging political activity. He also defends the liberalizing effect that the proposed rules would have on certain voter education activity.

Greg, it seems, may be overstating his assurances that “intent” is not, as a matter of law, a permissible factor in the test of whether a 501(c)(4) organization is engaged in “political intervention.” This is an important issue for those disinclined to have the federal tax law enforcement agency ferreting out the possible political intent of issue advocacy communications.