One theme in the narrative about the IRS is that it faces a special challenge in enforcing the (c)(4) rules in the wake of Citizens United. A (c)(4) organization, which is typically a corporation, can make independent expenditures, so long as this campaign activity and others do not make up its primary purpose.

Two basic reform models have been advanced to protect against the misuse of these nonprofits to make these and other campaign-related expenditures. One is that the Service should generally employ more rigor in rooting out organizations that have exceeded their limit for political activity. Another is that the IRS should change its rules, switching the test from a "primary” social welfare purpose to an "exclusive one" without any campaign activity mixed in, and rid itself of the problem altogether: effectively, the no-tolerance option.

In both cases, however, the proposed solutions may have to scale steep walls erected by Supreme Court precedent. These issues have to be taken into account in judging the role that IRS enforcement can play in campaign finance regulation.

Professor Michael McConnell defends Citizens United, but it is a highly qualified defense. He is critical of the Court’s craftsmanship—the “overlong opinion” is the least of the problems, secondary in significance to a holding that ranged “beyond what the parties argued or the facts demanded,” and that has prolonged the jurisprudential agonies inflicted by the long-standing contribution/expenditure distinction. McConnell believes that the Court, relying on a rationale he views as “naïve” or “obtuse,” missed a better argument for the outcome. So much for the defense. He then proposes an alternative way of seeing—and more favorably evaluating—the decision to bless corporate independent spending.