Campaign Finance Reform: A Legal Analysis of Issue and Express Advocacy
Released: 2002-03-15T00:00:00

Campaign Finance Reform: A Legal Analysis of Issue and Express Advocacy

98-282 -- Campaign Finance Reform: A Legal Analysis of Issue and Express Advocacy

Updated March 15, 2002

Background

Used to describe political advertisements, the terms "issue advocacy" and "express advocacy," were created by the Supreme Court and do not appear in federalcampaign finance law, i.e. the Federal Election Campaign Act (FECA). (1) However, whether an advertisement is classified as either "issue advocacy" or "expressadvocacy" will determine whether it is subject to FECA regulation. The attendant practical implications aresignificant. If a communication is deemed toconstitute "express advocacy," it will be subject to the disclosure requirements, source restrictions, and contributionlimits set forth in FECA. (2) On the other hand,if a communication is deemed to be "issue advocacy," it cannot be constitutionally subject to any regulation and,therefore, may be funded with unregulated or"soft money."

Supreme Court Decisions

In the 1976 landmark decision, Buckley v. Valeo , (3) the Supreme Court provided the genesis for the concept of issue and express advocacy communications. In Buckley, the Court evaluated the constitutionality of provisions of the Federal Election Campaign Act(FECA) that applied to expenditures "relative to a clearlyidentified candidate" and "for the purpose of influencing an election." The Court found that such provisions did notprovide a sufficiently precise description ofwhat conduct was regulated and what conduct was not regulated, in violation of First Amendment "void forvagueness" jurisprudence. Furthermore, the Courtwas concerned, under the overbreadth doctrine, that the statute could encompass not only communications with anelectoral connection, but could encompassconstitutionally protected issue-based speech as well.

In order to avoid these vagueness and overbreadth problems, the Court held that the government's regulatory power under FECA would be construed to reach onlythose funds spent for communications that "include express words of advocacy of the election or defeat" of a clearlyidentified candidate. Hence, the Buckley Court began to distinguish between communications that expressly advocate the election or defeat of a clearlyidentified candidate and those communications thatadvocate a position on an issue. The Court found that the latter type of communication is constitutionally protectedFirst Amendment speech and that only"express advocacy" speech could be subject to regulation. (4) Further, in animportant footnote, the Court provided some guidance as to how to determine whethera communication is "express advocacy" or "issue advocacy." That is, the Court stated that its construction of thesubject provisions of FECA would only apply tocommunications that included words "such as," "vote for," "elect," "support," "cast your ballot for," "Smith forCongress," "vote against," "defeat," or "reject." (5) These terms are often referred to as the "magic words," which many lower courts have ruled are required, under Buckley, in order for a communication toconstitute express advocacy.

In the 1986 decision of Federal Election Commission v. Massachusetts Citizens for Life, Inc., (MCFL) , the Supreme Court continued to distinguish between issueand express advocacy, holding that an expenditure must constitute express advocacy in order to be subject to theFederal Election Campaign Act (FECA)prohibition against corporations using treasury funds to make an expenditure "in connection with" any federalelection. (6) In MCFL the Court ruled that apublication urging voters to vote for "pro-life" candidates, while also identifying and providing photographs ofcertain candidates who fit that description, couldnot be regarded as a "mere discussion of public issues that by their nature raise the names of certain politicians." Instead, the Court looked at the "essentialnature" of the publication and found that it "in effect" provided an "explicit directive" to the reader to vote for theidentified candidates. Consequently, the Courtheld that the publication constituted express advocacy. (7)

Federal Election Commission Regulations

In 1995, the Federal Election Commission (FEC) promulgated regulations defining express advocacy, which are currently in effect:

Expressly advocating means any communication that-(a) Uses phrases such as "vote for the President," "re-elect yourCongressman," "support the Democratic nominee," "cast you ballot for the Republican challenger for U.S. Senatein Georgia," "Smith for Congress," "BillMcKay in '94," "vote Pro-Life" or "vote Pro-Choice" accompanied by a listing of clearly identified candidatesdescribed as Pro-Life or Pro-Choice, "vote againstOld Hickory," "defeat" accompanied by a picture of one or more candidate(s), "reject the incumbent," orcommunications of campaign slogan(s) or individualword(s), which in context can have no other reasonable meaning than to urge the election or defeat of one or moreclearly identified candidate(s), such as posters,bumper stickers, advertisements, etc. which say "Nixon's the One," "Carter '76," "Reagan/Bush" or "Mondale!"; or (b) When taken as a whole and with limited reference to external events, such as the proximity to the election,could only be interpreted by a reasonable person ascontaining advocacy of the election or defeat of one or more clearly identified candidate(s) because-- (1) The electoral portion of the communication is unmistakable, unambiguous, and suggestive of only onemeaning; and (2) Reasonable minds could not differ as to whether it encourages actions to elect or defeat one or more clearlyidentified candidate(s) or encourages some otherkind of action. (8)

Prevailing View of Federal Circuit Courts

With the exception of the Ninth Circuit, the prevailing view of the U.S. appellate courts is that Supreme Court precedent mandates that a communication containexpress words advocating the election or defeat of a clearly identified candidate in order to be constitutionallyregulated. In Federal Election Commission v.Furgatch , the Ninth Circuit in 1987 found that in order to constitute express advocacy, speech need notinclude any of the specific words set forth in Buckley v.Valeo . (9) Instead, the court of appeals presented a three part test fordetermining whether a communication is issue advocacy:

First, even if it is not presented in the clearest, most explicit language, speech is 'express advocacy' for the presentpurposes if its message is unmistakable and unambiguous, suggestive of only one plausible meaning. Second,speech may only be termed 'advocacy' if it presentsa clear plea for action, and thus speech that is merely informative is not covered by the Act. Finally, it must be clearwhat action is advocated. Speech cannot be'express advocacy of the election or defeat of a candidate' when reasonable minds could differ as to whether itencourages a vote for or against a candidate orencourages the reader to take some other kind of action. (10)

Notably, the third prong of the test exempts speech from constituting "express advocacy" when reasonable minds could disagree as to whether it encourages a votefor or against a candidate or encourages some other kind of action.

In contrast, in Maine Right to Life Committee v. Federal Election Commission, (MRLC) , the First Circuit invalidated the "reasonable person" standard, which theFederal Election Commission has promulgated into regulations consistent with the Furgatch decision. (11) In MRLC , the court found that the Supreme Court in Buckley had drawn a "bright line" that errs toward "permitting things that affect the election process,but at all costs avoids restricting, in any way, discussion ofpublic issues." According to the First Circuit, the advantage of this rigid approach, as presented in Buckley , is that it notifies a speaker or writer at the outset ofwhat communication is regulated and what is not. (12) Consistent with MRLC , in the 1997 case of Federal Election Commission v. Christian Action Network ,theFourth Circuit also found that the Supreme Court has "unambiguously" held that the First Amendment "forbids theregulation of our political speechunder...indeterminate standards." Further, the court noted that the Supreme Court has held that express wordsadvocating the election or defeat of a candidate arethe "constitutional minima." (13)

In June 2000, in Vermont Right to Life v. Sorrell , the Second Circuit similarly interpreted Buckley to stand for the proposition that in order to regulate acommunication, it must expressly advocate the election or defeat of a clearly identified candidate. According to theSecond Circuit, the Supreme Court limitationreflects a concern that because disclosure requirements can significantly infringe on privacy of association and beliefas guaranteed by the First Amendment, they"must be specifically directed to the government's legitimate purpose in seeking to insure 'the reality and theappearance of the purity and openness of' theelection process." The Supreme Court adopted the standard of express advocacy, the Second Circuit opined, toinsure that the regulations were neither too vaguenor intrusive on First Amendment protected issue advocacy. (14)

Most recently, on January 17, 2001, in Florida Right to Life v. Lamar, (15) the Eleventh Circuit upheld a lower court ruling striking down a Florida statute because itunconstitutionally regulated issue advocacy through an overbroad definition of "political committee." The Floridastatute required disclosure of any group whose"primary or incidental purpose" is to support or oppose candidates, issues, or parties. The court found no error inthe lower court enjoining the enforcement of thestatute because it was "unconstitutionally overbroad under the First Amendment." (16)

Legislative Overview in the 107th Congress

S. 27 , the "Bipartisan Campaign Reform Act of 2001," (McCain/Feingold), passed the Senate on April 2, 2001. With regard to issue and expressadvocacy, it incorporates the Snowe/Jeffords amendment language and would create a new term in federal electionlaw, "electioneering communication." Specifically, it would regulate political ads that: "refer" to a clearly identified federal candidate, are broadcast within30 days of a primary or 60 days of a generalelection, and are made to an audience that "includes" voters in that election. Generally, it would require disclosureof disbursements over $10,000 for suchcommunications, including identification of each donor of $1,000 or more, and such communications would beprohibited from being financed with union orcertain corporate funds. With respect to corporate funds, it exempts Internal Revenue Code � 501(c)(4) or � 527tax-exempt corporations from making"electioneering communications" with funds solely donated by individuals, who are U.S. citizens or permanentresident aliens, unless the communication is"targeted," i.e., it was distributed from a broadcaster or cable or satellite service whose audience"consists primarily" of residents of the state in which thecandidate is running for office. S. 27 expressly exempts from the definition news events, "expenditures," and"independent expenditures." If thisdefinition of "electioneering communication" is ruled unconstitutional, S. 27 provides an alternativedefinition, based on FEC v. Furgatch, (807 F.2d857 (9th Cir. 1987)): a communication promoting, supporting, attacking, or opposing a candidate,regardless of whether it expressly advocates a vote for or againsta candidate and is suggestive of no plausible meaning other than an exhortation to vote for or against a candidate.

With regard to issue and express advocacy, H.R. 2356 , the "Bipartisan Campaign Finance Reform Act of 2001," (Shays/Meehan), which passed theHouse on February 14, 2002, is similar to S. 27 : it would create a new term in federal election law,"electioneering communication," which wouldregulate political ads that: "refer" to a clearly identified federal candidate, are broadcast within 30 days of a primaryor 60 days of a general election, and (differingfrom S. 27 ) for House and Senate elections, is "targeted to the relevant electorate." Generally, it wouldrequire disclosure of disbursements over$10,000 for such communications, including identification of each donor of $1,000 or more, and suchcommunications would be prohibited from being financedwith union or certain corporate funds. With respect to corporate funds, it exempts Internal Revenue Code �501(c)(4) or � 527 tax-exempt corporations frommaking "electioneering communications" with funds solely donated by individuals, who are U.S. citizens orpermanent resident aliens, unless the communicationis "targeted," i.e., (differing from S. 27 ) it was distributed from a broadcaster or cable or satelliteservice and is received by 50,000 or more persons inthe state or district where the Senate or House election, respectively, is occurring. H.R. 2356 expresslyexempts from the definition news events,"expenditures," and "independent expenditures," and (differing from S. 27 ) candidate debates and certainother communications expressly exemptedby FEC regulation. If this definition of "electioneering communication" is ruled unconstitutional, H.R. 2356 provides an alternative definition, basedon FEC v. Furgatch, (807 F.2d 857 (9th Cir. 1987)): a communication promoting,supporting, attacking, or opposing a candidate, regardless of whether itexpressly advocates a vote for or against a candidate and is suggestive of no plausible meaning other than anexhortation to vote for or against a candidate.

Conclusion

The Supreme Court, in Buckley and Massachusetts Citizens for Life, has distinguished between express advocacy and issue advocacy communications. With theexception of the Ninth Circuit, the prevailing view of the federal circuit courts is that Supreme Court precedentmandates that a communication contain expresswords advocating the election or defeat of a clearly identified candidate in order to be constitutionally regulated. If a communication fails to meet this "brightline" express advocacy standard, most lower courts have considered it issue advocacy, notwithstanding whether thecommunication is likely to be interpreted tofavor or disfavor certain candidates while also informing the public about an issue.