A champion of campaign finance de-regulation, Senator Mitch McConnell has set his sights on discrediting one facet of the reform program—disclosure—that the Republican Party long proclaimed it could live with. He suggests a change of heart brought about by the misdeeds of political adversaries, but others have noted how the Republican turn-about on disclosure coincided with the Supreme Court’s decision in Citizens United. So it is worth considering again whether the case the Senator is making is an example of anti-reform politics, significant more as a tactical exercise than a serious statement of constitutional principle or public policy.

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.

In concluding that the IRS used “inappropriate criteria” in screening tax exempt applications, an Inspector General’s review cites as one source of this mismanagement “confusion” among employees about the law. The report recommends further internal guidance on the nature of an organization’s “primary” activity, and training or workshops designed to educate staff about “ political campaign intervention versus general advocacy.”

The Federal Election Commission could not figure out a way around DOMA and authorize by Advisory Opinion separate contributions by same sex couples, married or in civil unions, from shared assets. This was not for want of credible arguments, including ones advanced by my colleagues and me on behalf of the Democratic national party committees. But the Commissioners confronted what they took to be an impassable obstacle in the form of DOMA’s statutory command. One question fairly asked is how the FEC understands its authority to take constitutional issues into account in interpreting the law. The Commissioners did not believe that it was their legitimate function to weigh in on one side or the other of a case, which is not a campaign finance case, pending before the Supreme Court, or to take into account what they imagine the result will be. But what might the FEC have done with fresh, relevant constitutional adjudication in the very field of campaign finance? The agency would be expected to pay close attention to that.