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.

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.

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.

Greg Colvin, the Chair of the Bright Lines Project Drafting Committee, has replied to this posting that raised questions about the Project’s proposed revision of the standards for determining tax-exempt political intervention. Colvin concentrates his defense on the retention of a role, which he describes as limited, of the indefinite, poorly understood and variously applied “facts and circumstances” test. Under the Project’s re-definition, he writes, the test is reserved for use on a “limited basis” in a “small number of cases” and is necessary to address “unforeseen situations,” outside the bright lines, that trigger First Amendment concerns. He provides a crisp summary of the Project proposal and argues that, all in all and with a place for “facts and circumstances,” it “would correct the serious absence of neutral, objective criteria…that led to instances of ideological bias in the IRS review of tax-exempt applications.”

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.