Gregg Polsky and Guy Charles have posted Regulating 527 Organizations (forthcoming George Washington Law Review) on SSRN. Here is the abstract:

In this Essay, we consider whether the Federal Election Commission (“FEC”) has the authority to regulate independent 527 organizations (e.g., Swiftboat Veterans for Truth, Moveon.org, etc.) as political committees under the Federal Election Campaign Act. This issue, which was hotly debated during the last election cycle when it was considered and ultimately tabled by the FEC, is an extremely complex one that requires a deep understanding of election, tax, administrative, and constitutional law. After considering how these areas of law intersect, we conclude that the FEC lacks the authority to regulate independent 527 organizations as political committees.