The Democratic Disconnect: this is title of a report produced for the Transatlantic Academy by scholars who describe a critical breach in the relationship of citizen to government. Seyla Benhabib et al, The Democratic Disconnect (May 2013), http://www.gmfus.org/archives/the-democratic-disconnect-citizenship-and-accountability-in-the-transatlantic-community. They argue that around the world, the US included, "democracy is in trouble" as governments fail to answer to their citizens who respond with a deepening lack of trust and withdrawal from traditional channels of political engagement. Id. at 3. The urgent need is for "fairer and fuller citizen participation," a revival of civic engagement from the "bottom-up." Id. at 5, 118.

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?

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 a policy paper just published by the Cato Institute, John Samples takes up the constitutional amendments proposed in response to Citizens United and attempts to expose their dangers. Samples, a distinguished scholar of campaign finance, has much to offer here, regardless of where a reader stands on the feasibility of these proposals. It may be true, as Samples writes, that the constitutional amendments he criticizes “provide answers to constitutional questions, not a means for courts to reconsider those questions.” John Samples, Move to Defend: The Case against the Constitutional Amendments Seeking to Overturn Citizens United (April 2013) at 9. They do provide a means for others to reconsider those questions. And, in fact, Samples’ analysis leads him to return to first principles and to ask the question: what control should we entrust to the government in matters of campaign finance, and on what theory?