Don McGahn has made his mark on the Federal Election Commission, and the recent Boston Globe account tells the story in familiar terms: he was dedicated to the evisceration of the campaign finance laws, he could count on the support of his Republican colleagues, and he did not go about this business with a soft touch. Commissioners now decline to reach across the aisle except to swat at one other, leaving two senior members to argue over the question of which of the them refused to answer the other's phone calls. The agency’s operations are defined by dysfunction, its atmosphere by disharmony. As the Globe dates these developments, the year 2008, when McGahn came to the FEC, is the turning point.

To accept that this is an unattractive portrait of the FEC—that this is not a model of constructive regulatory exertion even on difficult issues—is not to say that the picture is complete. The FEC has found the going rough for years, as the Globe noted: "stalled from the start," in the words of an early Common Cause critique. If what was once a stall has developed into flaming breakdown, the explanation must rest on more than the obduracy since 2008 of Don McGahn and his colleagues. The Globe makes a light pass on other factors but they remain in the background, diminished and incomplete.

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.

As the combatants see it, each side in its own way, the stand-off within the Federal Election Commission is a conflict over principle and the proper reading of the law. Commissioners affiliated with the Democratic Party say they seek reasonable but vigorous enforcement; the Republican-affiliated Commissioners say they apply only the law as it is, within constitutional limits, and not as the Democrats wish it to be. The disagreements run through a host of regulatory decisions; they affect the writing of advisory opinions, the outcome of enforcement decisions, and the decisions over whether to appeal adverse court judgments. Bad feeling seems to run high. But, as one might expect, no Commissioner would concede in the slightest that partisanship or power politics accounts for the way their positions are formulated or their votes are cast. And it is always difficult when there are differences over matters of substance to be certain of the play of politics beneath the surface. It might be suspected; it is often hard to prove.

No one questions that campaign finance law has struggled through multiple, agonized revisions in distinguishing issues from campaign speech and the discussion of campaign issues from advocacy for candidates or parties. The statute is little help; it speaks of the “purpose of influencing” an election,” 2 U.S.C. §431(8)(A)(i), and broader Commission glosses on the phrase, such as a test for whether a message was “electioneering” in content, eventually came to grief. The Supreme Court held the express advocacy line briefly, then gave in to a conception of the “functional equivalent” of express advocacy, and has since cast much of discussion into obsolescence by extending to corporations the right to make independent expenditures. Now tax policy-makers and tax law face pressure to work through the same issue, in limiting political intervention by 501(c)(4)s, and the results might be expected to be the same.

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?