In a second round, at the second level of the Chevron test, a federal district court has struck down the FEC's attempt to read a "purpose" requirement into the “electioneering disclosure” rule. Van Hollen v. Federal Election Commission, No. 11-0766 (ABJ), 2014 WL 6657240 (D.D.C. November 25, 2014). The general view is that the Court probably got this right and that to the extent that the issue has remained unresolved for this long, the FEC (once again) should take the blame. Those adopting this position point to Judge Jackson's opinion, in which she lays out in some detail the obscure route by which the FEC arrived at its position.

But, as so often, the FEC is paying handsomely for the complexity of the issue and the sins of others. A fair share of the responsibility for this disclosure controversy lies with the Supreme Court's garbled jurisprudence, which has produced confusion about the constitutionality of campaign finance requirements applied to “issues speech”.

The IRS is now receiving comments on its Notice of Proposed Rulemaking on (c)(4) activity, and certain of the views so far underscore the choice that the agency faces and does not make in its first set of proposed rules. It is the choice of line, and the “brightness” of that line, distinguishing “candidate-related” from social welfare 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.

In his recently published criticism of Stanley Fish, Russell Jacoby returns to Fish's position (in Jacoby’s words) that “there are no abstract principles outside of society and history.” “Making It,” The New Republic (September 2, 2013 at 36). This position, Jacoby reminds the reader, accounts for Fish’s insistence “that there’s no such thing as free speech”—that speech has no worth independent of context and any value it is assigned is the outcome of a political struggle. See, e.g. Stanley Fish, There’s No Such Thing As Free Speech (1994) at 102. (“Free speech is not independent value but a political prize….”)

A report produced by the Commission on Accountability and Policy for Religious Organizations calls for the reform of the IRS ban on campaign intervention by 501(c)(3) groups. Government Regulation of Political Speech by Religious and Other 501(c)(3) Organizations (2013). It makes the point that the test by which the IRS judges political intervention is loosely constructed and unpredictable in application. The report also notes the additional problem that IRS enforcement is erratic; this is not the agency’s favorite assignment and the agency by and large either does what it can to avoid it, or gives up quickly in the face of dedicated resistance. The report’s authors, presenting their recommendations to Senator Chuck Grassley, propose a remedy in two major parts: one to address the treatment of “no cost” sermons and other religious statements made in the ordinary course of a religious organization’s operations, and the other to cover any other institutional expenditures for political purposes. The first of the recommendations makes sense, but the second does not.