After Brad Smith of the Center for Competitive Politics took to the pages of The Wall Street Journal to criticize the IRS’s proposed rules on tax-exempt political activity, Paul Ryan of the Campaign legal Center answered in a letter to the editor. Smith had complained about an agency "power grab" cheered on by anti-speech zealots on the left. Ryan's villain was the same—the IRS—but in this instance he depicted an agency struggling to its feet after years of “derelict” failure to police special interest misuse of the law.

The IRS is now receiving comments on its Notice of Proposed Rulemaking on (c)(4) activity, and certain of the views so far underscore the choice that the agency faces and does not make in its first set of proposed rules. It is the choice of line, and the “brightness” of that line, distinguishing “candidate-related” from social welfare activity.

Immediately upon the Treasury and IRS's publication of proposed rules on 501(c)(4) activity, the political jockeying began. Reformers said high time; critics replied that the suppression of free speech was at hand. The IRS Notice is not all that dramatic because what the Service may eventually do is up in the air: the IRS invites comments on all aspects of the definition of (c)(4) political activity. There is no way of knowing how this will all end up many months from now. But the IRS appears to be doing what both sides had demanded that it do for different reasons—improve on current rules—and its notice of proposed rulemaking simply calls for comment on a baseline proposal, which is fairly normal for this type of agency rulemaking setting. This is a reasonable place to begin.

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.