Arguments about transparency have become hard to follow. Government can demand an accounting of money spent to influence politics or public policy; it can certainly compel disclosure of the paid, direct lobbying of legislators. But this is among the easier cases, after which there is disagreement—and confusion—about what the government has the power to do or members of the public have the right to resist.

David Keating and Senator Durbin had just such a difference of opinion. Durbin had asked the Center for Competitive Politics and other organizations (including the Cato Institute) to state for the record whether they had funded ALEC in 2013, and whether they had supported the organization’s “stand your ground” legislation. See, e.g., Letter from Senator Richard J. Durbin to John Allison, President and CEO of the Cato Institute (August 6, 2012). Keating disputed the request’s propriety. Letter from David Keating to Senator Richard J. Durbin (September 16, 2013). To his mind, the request was an act of intimidation and an abuse of office. Any association with ALEC was for political purposes, and Durbin, no friend of ALEC, was using official letterhead and a call for information to accomplish government intimidation of a political adversary.

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.

Justin Levitt and Brad Smith are each top-flight thinkers about campaign finance who bring very different perspectives to issues in their field. Now a Professor at Loyola, Justin’s affiliations have included the Brennan Center for Justice. Brad, a Professor at Capital University Law School, founded and chairs his own Center, (the Center of Competitive Politics) and the two Centers are not at all alike in outlook or mission. Levitt and Smith have each recently written a piece—Levitt on the contribution/expenditure doctrine, Smith on the regulation of tax-exempt organizations—that, read side by side, track major, persistent disputes in political law. Each gets much right, but then overstates his case. For Levitt, his defense of regulation comes at the price of an understanding of the political costs. Smith is highly skeptical of regulation but in a way that gives short shrift to one complex regulatory goal that will not go away—public disclosure of certain kinds, and at certain levels, of spending to influence politics or policy.

Here is another reply by Greg Colvin, answering the second post here on the topic. Colvin picks up on the last word of the June 5 posting—“intent”—and argues that it is well settled that the IRS does not look into intent when judging political activity. He also defends the liberalizing effect that the proposed rules would have on certain voter education activity.

Greg, it seems, may be overstating his assurances that “intent” is not, as a matter of law, a permissible factor in the test of whether a 501(c)(4) organization is engaged in “political intervention.” This is an important issue for those disinclined to have the federal tax law enforcement agency ferreting out the possible political intent of issue advocacy communications.

Rick Hasen recently published an interesting article on the legal remedies for malicious lying in politics. Richard L. Hasen, A Constitutional Right to Lie in Campaigns and Elections, 74 Mont. L. Rev. 53 (Winter 2013) . He fears that “false and misleading speech may be increasing” in a “highly charged partisan atmosphere, in which each side cannot agree upon the basic facts,” and that the media, including the burgeoning fact-checking corps, “are not able to meaningfully curb candidates' lies and distortions.” Id. at 54. 55. Legal responses seem largely beyond reach, particularly after the Supreme Court’s decision in Alvarez v. United States, 132 S. Ct. 2537 (2012), which Hasen reads to indicate that “broad laws targeting false speech stand little chance of being upheld, regardless of topic.” Id. at 69.