The authors of the Bright Line Project proposal for ferreting out and regulating 501(c)(4) political intervention have given the matter a considerable amount of thought and have submitted to the IRS a detailed proposal. In a number of respects, the approach that they originally announced has changed. Its purpose, however, remains one of offering clarity where now there is very little, much to the frustration of practitioners looking to offer clear guidance to their clients. It is a worthy project and addresses a major problem: no one knows what distinguishes social welfare from electioneering activity, and the consequences of the confusion have been plain for all to see.

At the same time, the proposal has to answer the question of whether it is possible for the Internal Revenue Service to tackle questions like this with a reasonable prospect of general public acceptance and confidence. There is reason to doubt it. For as noted in analysis of an earlier Bright Line Project proposal, and as seems still true in this revised version, the agency would have considerable discretion in deciding whether 501(c) communications have crossed into the restricted political zone. And this task—operating within the political world—is one which tax agency officials are not trained or well suited for, nor expected to be.

The problem that these officials face under a proposal like Bright Line’s is better understood if removed from the sphere of abstraction to the more concrete example. Take the case of “genuine issue ads.” as these have been defined and given constitutional protection in cases like Wisconsin Right to Life. And consider an ad like this, which has been cobbled together from others of the kind aired in recent election cycles:

 

Congressman Jack Jones has repeatedly voted the interests of Big Business and their friends on Wall Street

 

He voted for bank bailouts;

 

He voted against limits on multimillion dollar bonuses for executives of companies that have been laying off their workers, leaving them with nothing;

 

And time and again he has refused to support a minimum wage for hard-working Americans.

 

It’s time for Congressman Jones to vote our interests – – for a change.

 

Call Congressman Jones: tell him to vote for fair wages for the all of us, not just big bonuses for the few.

 

Now, in defining “political intervention”, the Bright Line proposal includes a safe harbor or protection for communications that “influence official action, with no election reference.” The safe harbor does not cover any such communications disseminated through paid mass media advertising, and other criteria apply, as provided in the definition of the phrase “influence official action.” See Bright Lines Project Letter to IRS, November 15, 2014, at 4, 10 (available at http://www.citizen.org/documents/2014-11-15%20draft%20Regs%20and%20Cover%20FINAL.pdf)

An IRS official reviewing the Jones ad must determine whether the view expressed of the public official—that he is overly generous to Big Business and Wall Street—has a “direct, limited, and reasonable relationship to specific actions that the official may yet perform within his or her current term of office.” A number of specific examples of those actions are listed and include conducting hearings or investigations, or actually voting on bills. The proposed Bright Line definition reads as follows:

 

The relationship between the view [ expressed in the ad] and the specific action is “direct” if it refers expressly to the action, it is “limited” if it does not go beyond facts and arguments that pertain to the action, and it is “reasonable” if the connection between the view and persuading the official to take the action is logical and apparent to the reasonable reader viewer or listener.

 

Id. at 10. What next, then, for the reviewing tax official? The obvious intent behind the advertisement is to pressure the official to radically reverse course on every occasion possible, in a manner consistent with the policy preference the ad advocates for. Is that “direct” enough? The call for action does not identify a specific vote or action; it calls for a shift in policy or ideology. Is the reviewing official required to identify a specific action that might be on the horizon and that he or she could use to establish the change of heart?

And what if the candidate criticized by the advertisement has publicly challenged its veracity and establishes that, in fact, he did vote, say, for minimum-wage increases? This is a relevant to the expectation that IRS officials make hard judgments in a political world they don’t travel in. These ads are frequently contested: station managers are often in the middle of clashing claims about the truth and falsity of ads. Does a challenge to the truth of the ads draw the IRS official into these arguments, when called upon to determine, as he might, whether the view expressed is a sincerely meant exhortation to change voting or other patterns of official action?

The same questions can be raised about the other criteria specified in the Bright Line rule. Does the ad in question have the required “limited” relationship between the appeal made and the action requested, defined as content that does not “go beyond facts and arguments that pertain to the action”? Imagine again that the ad is false, or arguably so. At that point it could be easily suggested that the ad presents no relationship between content and the action it is urging the officeholder to take. Does this make the ad a “political intervention.” and if so, does the rule once again thrust the IRS into the position of judging the truth or falsity of a political advertisement?

The third of the requirements—that there be a “reasonable” relationship between the views expressed in the actions advocated—is very hard to judge in application, because it is vague and the explanation doesn’t help matters. What does it mean to say that the connection between the view expressed in the actions to be taken must be “logical and apparent” to the reasonable viewer? What would fail that test? And how is the tax official to know?

If the goal is to establish “bright lines,” then the Project is in part successful because lawyers advising clients will have more to work with under this proposal than they have today. But while an improvement for lawyers, it doesn’t resolve the fundamental concerns with vesting this much discretion under vague criteria in tax enforcement officials. Nothing obvious in their training, background or professional experience would have prepared them for it. Nothing in the public debate on these issues over many decades suggests that the tax official judgments on controversial advertising will meet with wide acceptance.

Brighter-line rules for long-suffering lawyers do not necessarily translate into adequate boundaries and a manageable mission for the Internal Revenue Service. The Project is right to insist on bright lines but the question will remain whether its lines are bright enough. The proposed rules run for 17 pages and there are 28 separate definitions. The simpler the rules, the better; the best of the alternatives would do more to keep IRS officials out of the complex and divisive business of analyzing the difference between “genuine issue” speech and campaign ads.