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.
This disappointment will not come about for want of trying or application by the best minds in the business. The authors of the Bright Line Project have devoted considerable, expert attention to proposing improved tests for political intervention. The Bright Lines Project: Clarifying IRS Rules on Political Intervention (Interim Draft, May 23, 2013). But as noted here, the outcome of this work so far is a complex contraption, and clarity ends up giving ground to a freely roaming “facts and circumstances” analysis. Their work is also helpful in bringing out yet one more problem: the conflict between enforcement priorities and the protections we would expect under First Amendment doctrine for “controversial speech.” Controversial speech grabs attention and is laden with the potential to “influence” voters: this moves it up the list of regulatory priorities, but the very same category of speech is especially dear to the hearts of reform critics who wish to protect it from regulation.
The Bright Line Project’s “general speech rule,” designed to capture political intervention, consists of two prongs: a communication’s reference to a candidate and its expression of a “clear view” of that candidate. “Bias or favoritism of any kind” results in a “clear view,” including content that is neither wholly positive nor negative, but simply “nuanced.” Id. at 12. So the Project’s authors argue for allowing tax-exempts to engage in voter education—speech about campaign issues, not advocacy for particular candidates—on the condition that the tax-exempt speak “neutrally.” Id. at 14.
Full Article: Controversial Speech and the Education of Voters.