Copy of Book5 - Brennan Center for Justiceiv T he Brennan Center for Justice is a nonprofit...

C A M P A I G N F I N A N C E R E F O R M S E R I E S

REGULATING ELECTIONEERING:

DISTINGUISHING BETWEEN�EXPRESS ADVOCACY� & �ISSUE ADVOCACY�

B Y G L E N N M O R A M A R C O

Copyright © 1998 by the Brennan Center for Justice at New York University School ofLaw. All rights reserved. No part of this book may be reproduced or transmitted withoutpermission in writing from the publisher, Brennan Center for Justice, 161 Avenue of theAmericas, 5th Floor, New York, New York 10013.

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Brennan CenterBoard of Directors

Nancy BrennanExecutive Director, Plimouth Plantation

Murray H. BringVice Chairman & General Counsel,

Philip Morris Companies Inc.

David W. CarpenterSidley & Austin

Professor Peggy C. DavisNYU School of Law

Peter M. FishbeinKaye, Scholer, Fierman, Hays & Handler

Professor Martin GuggenheimNYU School of Law

Hon. A. Leon Higginbotham, Jr.Kennedy School of Government;

Paul, Weiss, Rifkind, Wharton & Garrison

Professor Thomas M. JordeUniversity of California, Berkeley

School of Law;President, LECG; Inc.

Edward J. Kelly, IIIManaging Director, J.P. Morgan & Co.

Professor Larry KramerNYU School of Law

Anthony LewisThe New York Times

Professor Nancy MorawetzNYU School of Law

Professor Burt NeuborneLegal Director, Brennan Center;

NYU School of Law

Ronald L. OlsonMunger, Tolles & Olson

Dwight D. OppermanChairman, Key Investment, Inc.

Daniel A. RezneckGeneral Counsel, District of Columbia Financial

Responsibility & Management Assistance Authority

Dean John E. SextonNYU School of Law

Walter J. Smith, S. J.President & C.E.O.,

The HealthCare Chaplaincy, Inc.

Clyde A. SzuchPitney, Hardin, Kipp & Szuch

Affiliations are for identification only.

Jeannemarie E. Smith, TreasurerC.F.O., NYU School of Law

Steven A. Reiss, General CounselWeil, Gotshal & Manges

William J. Brennan, III, ChairSmith, Stratton, Wise, Heher & Brennan

E. Joshua Rosenkranz, Executive Director

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The Brennan Center for Justice is a nonprofit institute devoted to discourse and action onissues of justice central to the jurisprudence of Justice William J. Brennan, Jr. The Centerwas founded in 1995 by Justice Brennan’s family, friends, former law clerks, and admirers,

in partnership with New York University School of Law. The Democracy Program is one of theCenter’s primary program areas. In keeping with its mission to enhance the openness of ourdemocracy, the Brennan Center is a public education and litigation resource for campaign financereform advocates, local and national public officials, and journalists. The Brennan Center has alsoworked on ballot access rules. In 1996, it participated in a successful lawsuit challenging NewYork’s Republican presidential primary ballot rules and subsequently published Voter Choice ’96,a 50-state survey of state ballot access laws.

About the Campaign Finance Reform Series

This paper is one of a series of papers issued by the Brennan Center exploring issues of moneyand politics. The following titles are part of the series:

Campaign Finance Reform and the Constitution: A Critical Look at Buckley v. ValeoBy Burt Neuborne

The Values of Campaign Finance ReformBy Burt Neuborne

A Survey of Existing Efforts to Reform the Campaign Finance SytemBy Burt Neuborne

The Flow of Money in Congressional ElectionsBy Kenneth Weine

Regulating Electioneering: Distinguishing Between “Express Advocacy” & “Issue Advocacy”By Glenn Moramarco

For more information, or to order a Brennan Center publication, contact:

Brennan Center for Justice161 Avenue of the Americas

5th FloorNew York, New York 10013

(212) 998-6730Fax: (212) 995-4550

About the Brennan Center for Justice

Cover design by Jennifer Eisenpresser

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About the Author

This paper was prepared under the auspices of the Brennan Center’s Democracy Program.The Brennan Center is grateful for the ongoing support of the following foundations, whichfund the Center’s Democracy Program:

Arca Foundation

Carnegie Corporation of New York

Deer Creek Foundation

Ford Foundation

Joyce Foundation

Stewart R. Mott Charitable Trust

Open Society Institute

Florence & John Schumann Foundation

The following people made helpful comments on earlier drafts of this paper: DeborahGoldberg, Jonathan Krasno, Burt Neuborne, and E. Joshua Rosenkranz. The Center is grateful toJennifer Eisenpresser for the cover design of the papers in this series.

Glenn J. Moramarco is a Senior Attorney at the Brennan Center for Justice at NYU Schoolof Law. He graduated from Yale Law School (1986), where he served as an editor of theYale Law Journal, after receiving a B. Phil. in Philosophy, Politics, and Economics from

Oxford (1983) and a B.A. from Harvard (1981). Upon graduating from law school, he clerked forJudge Leonard I. Garth on the U.S. Court of Appeals for the Third Circuit (1986-87). He has spentequal amounts of time in civil and criminal litigation, working for Wilmer, Cutler & Pickering inWashington, D.C. (1987-89) and Fine, Kaplan & Black in Philadelphia (1994-97), with adistinguished five-year tenure as an Assistant U.S. Attorney in New Jersey (1989-94).

Acknowledgments

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Table of Contents

Introduction ........................................................................................................................................................1

�Issue Advocacy � and �Express Advocacy � -- The Paradigm Cases ..................3

The Supreme Court Invents �Issue Advocacy � ....................................................................5

The �Magic Words � Test ............................................................................................................................... 6

The Appellate Courts Disagree About How To Define�Express Advocacy � ........................................................................................................................................... 6

The Real World Practices .......................................................................................................................9

�Magic Words � and First Amendment Jurisprudence ................................................11

Recent Attempts to Better Define �Express Advocacy � .............................................13

The FEC Adopts a �Reasonable Person � Approach .............................................................13

Senators Propose a Delimited Time Period Approach ........................................................14

Additional Approaches and Refinements ....................................................................................17

Conclusion........................................................................................................................................................19

Introduction

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For most of this century, one of the pri-mary goals of federal campaign financelaws has been to restrict wealthy interests

from exerting undue influence over the politicalprocess. Thus, in 1907, Congress passedlegislation that prevented corporations frommaking financial contributions or expendituresin connection with any election for federaloffice. Forty years later, the ban was extendedto labor unions, and in the early 1970s, Congresspassed the Federal Election Campaign Act(FECA), which sought, among other things, tolimit contributions by “fat cat” or wealthydonors to political parties and candidates.

Although these reforms did not completelyremove the influence of “big money” frompolitics, the reforms nevertheless enjoyed somemodest success in preventing the appearance ofcorruption that arises when wealthy donors andpowerful corporations contribute directly andheavily to political campaigns. However, inrecent years these reforms have lost theireffectiveness, as wealthy donors, includingprohibited contributors such as corporations andlabor unions, have evaded the clear intent of thelaw.

In the 1996 federal elections, corporations,labor unions, political parties, and advocacygroups spent an estimated $135 to $150 millionin advertisements that were wholly unregulatedby the federal government because, the sponsorsof the ads claimed, they were engaged in “issueadvocacy” rather than “express advocacy.”However, rather than educating the publicbroadly about issues, the typical “issue ad”mentioned a single candidate, targeted thesegment of the public eligible to vote for thatcandidate, began to run when an election wasimminent, and ended abruptly on Election Day.

The following is an example of anadvertisement, run during the 1996 campaign,which the sponsor claimed was an un-regulated “issue ad” rather than a regulatedelectioneering ad:

It’s our land; our water. America’senvironment must be protected. Butin just 18 months, CongressmanGanske has voted 12 out of 12 timesto weaken environmental protections.Congressman Ganske even voted to letcorporations continue releasingcancer-causing pollutants into our air.Congressman Ganske voted for the bigcorporations who lobbied these billsand gave him thousands of dollars incontributions. Call CongressmanGanske. Te ll him to protectAmerica’s environment. For ourfamilies. For our future.

The sponsors of this advertisement claim itis an “issue ad” because, rather than urgingviewers to “vote against” or “defeat”Congressman Ganske, the ad merely urges themto call Congressman Ganske. Surgicallyexcising explicit words of advocacy, such as“elect” or “defeat,” they claim, converts blatantelectioneering into mere “issue advocacy,”which is wholly unregulated and immune fromfederal disclosure laws.

Of course, to the eyes of the voting public,the above advertisement is indistinguishablefrom electioneering ads that CongressmanGanske’s opponent would run. This ad and thevast majority of so-called “issue ads” thatappeared during the 1996 federal electionseason had the unmistakable intent ofencouraging the viewer to vote for or against

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particular candidates. Although there are noreliable estimates concerning the dollaramount spent on “issue advocacy” in state andlocal races, it is nevertheless clear that theproblem is not limited to federal elections.The presentation of electioneering ads underthe guise of “issue advocacy” has given riseto a separate parallel track of whollyunregulated electioneering, a developmentthat threatens to make a mockery of the entire

REGULATING ELECTIONEERING

scheme of federal and state campaign financeregulation.

This paper reviews the history of the riseof “issue advocacy,” describes the currentlegal landscape, and explains some of theleading regulatory approaches for defining“express advocacy” and “issue advocacy” ina more realistic and constitutionally-permissible manner. ❑

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The phrase “issue advocacy,” like thephrase “express advocacy,” appears no-where in the statutes that comprise

federal campaign finance law. Rather, theconcepts were created by the Supreme Court inBuckley v. Valeo, 424 U.S. 1 (1976), which heldthat political advertisements that expresslyadvocate the election or defeat of a candidateare subject to federal regulation, but politicaladvertisements that merely relate to politicalissues (without expressly advocating theelection or defeat of a candidate) are not subjectto regulation.

Relying on the Buckley decision, somelower federal court decisions have adopted avery narrow, bright-line test -- the “magicwords” test. Under the “magic words” test,regardless of the intent of the speaker or theeffect of the advertisement on the listener, anadvertisement that fails to use “magic words”such as “elect,” “defeat,” “support,” “reject” (ornearly identical synonyms) is considered “issueadvocacy” rather than “express advocacy.”However, the proper legal test for defining“express advocacy” and “issue advocacy”remains a hotly contested legal issue. Beforethat issue can be addressed, it is necessary tounderstand what it is the law is attempting todifferentiate between when it uses the terms“issue advocacy” and “express advocacy.”

The paradigms are relatively easy todescribe. A paradigmatic “issue advocacy”advertisement: (1) addresses an issue of nationalor local political importance, (2) discusses onlythe issue and not the actions of particularpolitical actors in regard to that issue, and (3) isbroadcast at a time when legislative or executiveaction on the issue may be pending orcontemplated, but no election is imminent.

Recent examples of the “issue advocacy”paradigm are advertisements that labor unionsran in late 1993, when the Senate wasconsidering ratification of the North AmericanFree Trade Agreement (NAFTA):

In Washington, big corporations andlobbyists are spending millionsmaking false claims about theNAFTA trade deal. But acrossAmerica, people going to factories,to farms, to offices know it meansjobs going south. Economistswho’ve studied job loss say we’lllose up to 500,000 jobs to NAFTA.Americans want to expand trade, butnot by trading away their jobs.NAFTA: It’s a bad deal for America,and Americans know it.

When these anti-NAFTA advertisementswere broadcast, there was no national electionpending, and the primary purpose of theadvertisements was to sway public andCongressional opinion on this important publicpolicy choice.

Similarly, in late 1993 and early 1994, whenPresident Clinton proposed comprehensivenational health care reform, the HealthInsurance Association of America ran a seriesof paradigmatic “issue advocacy” radio andtelevision spots. The advertisements featuredan ordinary American couple -- Harry andLouise -- discussing their fears about theproposed health care reform package. Again,there were no national elections pending, andthe advertisements were intended to sway publicopinion against health care reform and convinceCongress to reject the President’s health careinitiatives.

�EXPRESS ADVOCACY� & �ISSUE ADVOCACY�

�Issue Advocacy � and � Express Advocacy � --The Paradigm Cases

A paradigmatic “express advocacy”advertisement: (1) names one or moreindividual candidates for public office, (2)attributes one or more actions or beliefs to thecandidate, (3) appears in close proximity to anelection, and (4) explicitly urges the viewer tovote either for or against the candidate. Thefollowing advertisement is an example of“express advocacy”:

Senator Smith is standing in the wayof reform. Voting against curbs onfrivolous lawsuits that cost jobs.What’s worse, Senator Smith’s madea career of putting the rights ofcriminals ahead of the rights ofvictims. Voting to deny employersthe right to keep convicted felons outof the workplace. That’s wrong,that’s liberal, but that’s SenatorSmith. On Tuesday, vote againstSenator Smith.

The majority of political advertisements thatappear during an electoral season fall in betweenthese paradigms. The decision to classify anadvertisement as either “express advocacy” or“issue advocacy” has enormous practical

implications. If the communication is deemedto be “express advocacy,” then threeconsequences follow under federal election law.First, the communication is subject to disclosurerules. FECA requires that speakers engagingin “express advocacy” disclose the sources oftheir money and the nature of their expenditures.Second, the communication is subject to sourcerestrictions. FECA bars certain speakers, suchas corporations and unions, from spendingmoney to engage in “express advocacy.” Third,the communication is subject to fund-raisingrestrictions. FECA limits not only the sourcesfrom which speakers may raise their money, butalso the size of contributions they may receive.

If, however, the communication is deemedto be “issue advocacy,” then the communicationis not, and indeed cannot constitutionally be,subject to regulation, including sourcerestrictions, fund-raising restrictions, or evenpublic disclosure. Thus, it is vitally importantthat campaign finance law be able to distinguishintelligently between “issue advocacy,” whichis intended to educate the public about importantpublic issues, and “express advocacy,” whichis intended to persuade a voter to support ordefeat a particular candidate at the polls. ❑


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In 1974, on the heels of President Nixon’sresignation and public hearings on theWatergate scandals, Congress built on

reforms begun initially in 1971, and enactedFECA -- a comprehensive set of campaignreforms that established: (1) contribution limitsfor donations to politicians and political parties;(2) expenditure limits that applied to privateparties, political parties, and those seekingpublic office; (3) disclosure rules for bothcontributions and expenditures; and (4) publicfinancing of presidential elections. Thesereforms, which were set to go into effect withthe upcoming 1975-76 election cycle, wereimmediately challenged in the courts.

The Supreme Court reviewed theconstitutionality of FECA in Buckley v. Valeo, 424U.S. 1 (1976). In general, the Court upheld thedisclosure rules and the public financing ofpresidential elections. However, on the issue oflimits on campaign contributions andexpenditures, the Court issued a split decision. TheCourt upheld the limits on contributions asnecessary to further the government’s compellinginterest in avoiding corruption or the appearanceof corruption. However, the Court struck downthe limits on expenditures as violating acandidate’s First Amendment rights withoutserving a compelling government interest.

FECA attempted to regulate not onlycandidate and party expenditures, but alsoexpenditures by private parties. One section ofFECA imposed a $1,000 limit on expenditures“relative to a clearly identified candidate.”Another section of FECA imposed reportingrequirements for persons who makeindependent expenditures of over $100 “for thepurpose of influencing” a federal election. TheCourt in Buckley concluded that these

regulations presented potential problems bothof vagueness and overbreadth.

Under First Amendment “void forvagueness” jurisprudence, the governmentcannot punish someone without providing asufficiently precise description of what conductis legal and what is illegal. A vague or imprecisedefinition of “express advocacy” might serveto “chill” some political speakers who, althoughthey desire to engage in discussions of politicalissues, may be afraid that their speech could beconstrued as electioneering. The Court inBuckley found that the FECA regulations, whichapplied to expenditures “relative to a clearlyidentified candidate” and “for the purpose ofinfluencing an election” were not sufficientlyprecise to provide the certainty necessary forthose wishing to engage in political speech.

Similarly, the overbreadth doctrine in FirstAmendment jurisprudence is concerned with aregulation that, however precise, sweeps toobroadly and reaches constitutionally protectedspeech. In Buckley, the Court was concernedthat a regulation that applies to any expenditurethat is done “for the purpose of influencing” afederal election or that is “relative to a clearlyidentified candidate” could encompass not onlydirect electioneering, but also protected speechon issues of public and political importance. Forexample, the Harry and Louise health careadvertisements, which were intended to be“issue advocacy” communications, mightnevertheless have the effect of influencingviewers to oppose Democrats in general orPresident Clinton in particular. If the FECAregulations were interpreted to reach allexpenditures that merely mention a politicalcandidate or could influence the outcome of afederal election, the sweep would be broadindeed.


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The Supreme Court Invents �Issue Advocacy �

In order to avoid these vagueness andoverbreadth problems, the Court held that thegovernment’s regulatory power under FECAwould be construed to reach only funds usedfor communications that “expressly advocate”the election or defeat of a clearly identifiedcandidate. Thus, it was the Supreme Court, andnot the Congress, that invented the distinctionbetween “express advocacy,” which may beregulated, and “issue advocacy,” which cannotbe regulated. Although the words “expressadvocacy” and “issue advocacy” appearnowhere in the statutory language, they are nowan important part of the statutory andconstitutional federal election law framework.

The �Magic Words� Test

In an important footnote in the Buckleyopinion, the Supreme Court provided someguidance on how to decide whether acommunication is “express advocacy” or “issueadvocacy.” The Court stated that its constructionof FECA would limit the reach of the statute “tocommunications containing express words ofadvocacy of election or defeat, such as ‘vote for,’‘elect,’ ‘support,’ ‘cast your ballot for,’ ‘Smith forCongress,’ ‘vote against,’ ‘defeat,’ ‘reject.’” It isthis footnote from Buckley that has led some toconclude that the Supreme Court has adopted a“magic words” test for distinguishing between“express advocacy” and “issue advocacy.” Underthe “magic words” approach, unless a com-munication contains one of the words listed bythe Supreme Court in this footnote, or a near-perfect synonym, the communication is “issueadvocacy,” regardless of the intent of the speakeror the likely reaction of any reasonable listener.

Proponents of the “magic words” approachinterpret it strictly. Thus, the followingadvertisement, even if aired within days of anelection, would be considered “issue advocacy”by strict constructionists:


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Congresswoman Smith voted toincrease income taxes, sales taxes andcapital gains taxes by over a billiondollars. Then she voted against thelargest property tax cut in history. Isshe: (a) a liberal, (b) a big spender, (c)out of touch, or (d) all of the above? Ifyou said “(d) all of the above,” you’vemade the right call. Make another rightcall to Congresswoman Smith. Shenever met a tax she didn’t hike.

Because the tag line on the ad says “call”Congresswoman Smith rather than “defeat”Congresswoman Smith, it would be deemed an“issue ad” under the strict “magic words”approach. If adopted by the courts, the “magicwords” approach, with its narrow and woodendefinition of “express advocacy” would createa potentially massive loophole in the campaignfinance laws that would allow advocacy groupsand prohibited donors to spend unlimitedresources on unregulated electioneeringadvertisements like the one cited above.

The Appellate Courts DisagreeAbout How To Define � ExpressAdvocacy�

The Supreme Court has only once appliedthe “express advocacy” test to a concrete set offacts, and that case, FEC v. MassachusettsCitizens for Life, Inc., 479 U.S. 238 (1980), hasaspects that both support and undermine the“magic words” approach. In that case,Massachusetts Citizens for Life, a nonprofitcorporation, published a “Special ElectionEdition” of its newsletter which urged its readersto “vote pro-life” in an upcoming primaryelection, listed every candidate for state andfederal office, and identified each candidate’sview on pro-life issues, together with adisclaimer stating that the newsletter did notendorse any particular candidate.

The Supreme Court held that, despite thedisclaimer, the pro-life newsletter contained“express advocacy.” The Court began itsanalysis by returning to Buckley, and reiteratingthat a finding of “express advocacy” dependsupon the use of language such as “vote for,”“elect,” or “support.” However, despite the factthat the newsletter used the explicit phrase “votepro-life,” the Court did not limit its analysis tothe mere presence or absence of these “magicwords.” Rather the Court examined thenewsletter as a whole and rested its decision onthe “essential nature” of the message and whatit conveyed “in effect.” Thus, MassachusettsCitizens for Life can be read as supporting atest for “express advocacy” that looks beyondthe mere presence or absence of “magic words”and considers the context and true intent of acommunication.

Because the Supreme Court has notdefinitively settled the issue of how todifferentiate between advertisements thatconstitute “issue advocacy” and advertisementsthat constitute “express advocacy,” the issue hasbeen left to the lower federal courts. The federalcourts of appeals have split in theirinterpretation of “issue advocacy.”

One of the earliest decisions in this area isFEC v. Furgatch, 807 F.2d 857 (9th Cir. 1987).In that case a private citizen, Harvey Furgatch,placed a full page advertisement in the New YorkTimes and the Boston Globe that was critical ofPresident Carter during the week preceding the1980 election. Furgatch’s advertisement statedthat President Carter was “cultivat[ing] thefears, not the hopes, of the voting public,” and“degrading the electoral process and lesseningthe prestige of the office.” Furgatch’sadvertisement accused President Carter oftrying “to buy entire cities, the steel industry,the auto industry, and others with public funds”during the election campaign. Finally, theadvertisement warned that “[i]f he succeeds the

country will be burdened with four more yearsof incoherencies, ineptness and illusion, as heleaves a legacy of low-level campaigning.DON’T LET HIM DO IT.”

The FEC sued Furgatch for, among otherthings, failing to report his expenditures on thesenewspaper advertisements. The United StatesCourt of Appeals for the Ninth Circuit held that,even though Furgatch’s advertisements did notuse any of the “magic words” listed in Buckley,they nevertheless expressly advocated the defeatof President Carter, and thus had to be reportedto the FEC as independent expenditures.

According to the appellate court, the “magicwords” test urged by Furgatch would preserve theFirst Amendment interest in unfettered expressiononly at the expense of eviscerating FECA.Nominally independent campaign spenders couldtoo easily circumvent the Act by simply avoidingcertain key words while conveying a message thatis unmistakably an electioneering message. TheCourt held that a communication is “expressadvocacy” when the communication, when readas a whole and with limited reference to externalevents, is reasonably susceptible to interpretationonly as an exhortation to vote for or against aspecific candidate.

Despite this important early ruling by theUnited States Court of Appeals for the NinthCircuit, the recent trend among federal appellatecourts has been to adopt the “magic words”approach for “express advocacy.” For example,in FEC v. Christian Action Network, Inc., 110F.3d 1049 (4th Cir. 1997), the FEC brought anenforcement action against the Christian ActionNetwork, alleging that the followingadvertisement, which was aired in the weeksleading up to the November 3, 1992 presidentialelection, should not have been funded withcorporate money because it expressly advocatedthe defeat of President Clinton and Vice-President Gore:


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Bill Clinton’s vision for Americaincludes job quotas for homosexuals,giving homosexuals special civil rights,allowing homosexuals in the armedforces. Al Gore supports homosexualcouples’ adopting children andbecoming foster parents. Is this yourvision for a better America? For moreinformation on traditional familyvalues, contact the Christian ActionNetwork.


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Despite the obvious intent of this televisioncommercial, the United States Court of Appealsfor the Fourth Circuit, in very strong language,criticized the FEC’s position that the ad, whichfailed to use “magic words” such as “defeat” or“vote against,” was expressly advocating thedefeat of Clinton and Gore. The court foundthat the Supreme Court had limited the FEC’sregulatory authority to communicationscontaining explicit words urging election ordefeat of candidates. ❑

Corporations, labor unions, politicalparties, and advocacy groups haveseized upon the “magic words”

approach adopted by some courts and haveengaged in multi-million dollar electioneeringcampaigns under the guise of “issue advocacy.”A recent report by the Annenberg Public PolicyCenter at the University of Pennsylvaniaexamined the “issue advocacy” expenditures of27 organizations in the 1995-96 election cycle(groups such as the AFL-CIO, the NRA, theNEA, and the Sierra Club) and found that these27 organizations alone spent an estimated $135million to $150 million in election-relatedadvertising. This was at a time when all federalcandidates for office combined (President,Senate, and House of Representatives) spent anestimated $400 million on advertising. Indeed,in some races, “issue advocacy” spending byinterested groups exceeded the advertisingexpenditures of the candidates themselves. Asthe Annenberg Center noted, this level ofspending by unregulated groups is “unprece-dented, and represents an important change inthe culture of campaigns.”

The “issue advocacy” advertisementssponsored by these organizations are virtuallyindistinguishable from the campaign com-mercials put out by the candidates. Forexample, during the 1996 election season,Citizens for the Republic Education Fund, a tax-exempt organization founded by Lyn Nofzigeron June 20, 1996, spent hundreds of thousandsof dollars on “issue ads” that were intended tohelp Republican Senate candidates. Citizensfor the Republic Education Fund aired thefollowing television commercial againstArkansas Democratic Senate candidate WinstonBryant:

Senate candidate Winston Bryant’sbudget as Attorney General increased71%. Bryant has taken taxpayerfunded junkets to the Virgin Islands,Alaska, and Arizona. And spent about$100,000 on new furniture. Un-fortunately, as the state’s top lawenforcement official, he’s neveropposed the parole of any convictedcriminal, even rapists and murderers.And almost 4,000 Arkansas prisonershave been sent back to prison forcrimes committed while they were outon parole. Winston Bryant: govern-ment waste, political junkets, soft oncrime. [Superimposed: Call WinstonBryant and tell him to give the moneyback.]

Because the ad urges the viewer to “callWinston Bryant,” rather than vote against him,the Citizens for the Republic Education Fundconsidered this an issue advertisement, notsubject to federal regulation, rather than“express advocacy,” which would have beensubject to spending limits and disclosure.

Similarly, the Democratic NationalCommittee in 1996 ran an advertisement inwhich the announcer states:

Protect families. For millions ofworking families, President Clintoncut taxes. The Dole/Gingrich budgettried to raise taxes on eight million.The Dole/Gingrich budget would’veslashed Medicare $270 billion, cutcollege scholarships. The Presidentdefended our values, protectedMedicare. And now a tax cut of $1,500


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The Real World Practices

a year for the first two years of college,most community colleges free. Helpadults go back to school. ThePresident’s plan protects our values.

Because the advertisement never used themagic words, “vote for” Clinton or “defeat”Dole, the Democratic National Committeeconsidered this an issue ad that did not expresslyadvocate the reelection of President Clinton orthe defeat of Senator Dole.

The “magic words” approach is a loopholethat threatens to swallow the entirety of federalcampaign financing law. The bans on corporateand labor union expenditures are renderedmeaningless when corporations and laborunions run multi-million dollar advertising


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campaigns that target individual legislators fordefeat under the banner of “issue advocacy.”Similarly, the $5,000 limit on contributionsto PACs, which was upheld by the SupremeCourt, is rendered meaningless whenindividuals contribute sums substantially inexcess of that amount in order to fund multi-million dollar advertising campaigns thatattempt to influence the outcome of specificelectoral races. And the expenditure limitswhich the presidential candidates voluntarilyagreed to abide by as a condition for receivingpublic matching funds are renderedmeaningless when the national partycommittees run unregulated advertisingcampaigns that mirror those of their nominees.❑

The federal court decisions that reject theNinth Circuit approach in Furgatch andadopt a “magic words” test for “express

advocacy” construe Buckley as imposingrestrictions that are beyond those imposed inany other First Amendment context. In everyarea of First Amendment jurisprudence, courtsare required to engage in delicate line drawingbetween protected speech and speech thatproperly may be regulated. For example, inanother election-related context -- unionrepresentation elections -- employers arepermitted to make “predictions” about theconsequences of unionizing, but they may notissue “threats.” Although the courts havedeveloped an extensive jurisprudence todistinguish between “predictions” and “threats,”there is no bright-line test, and an employercould harbor considerable uncertainty as towhether the words he is about to utter are eitherprotected under the First Amendment orsanctionable as illegal advocacy.

Similarly, in libel cases involving the press,an area of core First Amendment concern, theCourt has eschewed the simple bright-lineapproach of imposing liability based on the truthor falsity of the statement published. Instead,the Court utilizes a multi-factor analysis thatexamines, among other things, whether thesubject of the statement is a public figure,whether the statement involves matters of publicconcern, whether the speaker acted withreckless disregard for the truth or falsity of thestatement, and whether a reasonable readerwould perceive the statement as stating actualfacts or merely rhetorical hyperbole.

In no area of First Amendment juris-prudence has the Court mandated a wooden,mechanical test that ignores context and


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�Magic Words� and First Amendment Jurisprudence

purpose. In no area of First Amendmentjurisprudence has the Court held that the onlyconstitutionally permissible test is one thatwould render the underlying regulatory schemeunenforceable. It is doubtful, therefore, that theSupreme Court in Buckley intended to singleout election regulations as requiring amechanical, formulaic, and utterly unworkabletest.

Moreover, many of those courts that haveadopted the “magic words” approach haveapplied it uncritically to all of the variousdifferent types of possible election lawrestrictions, and have thereby failed to grapplewith the important distinction in FirstAmendment jurisprudence between restrictionson speech and mere disclosure rules. InBuckley, the Court made it clear that thegovernmental interests that justify disclosure ofelection-related spending are broader than thegovernmental interests that justify prohibitionsor restrictions on election-related speech. Whenlegislation does not proscribe speech, there isless of a concern about either chilling orvagueness. Thus, even if certain advertisementscannot be prohibited because they are arguablywithin the ambit of “issue advocacy,” it doesnot follow that the speaker cannot be requiredto disclose the funding sources for those ads.If a legislature were to pass a law requiring, forexample, that the source of funds be disclosedfor every communication whose cost exceeds$10,000 and mentions a specific candidate forpublic office within 60 days of an election, sucha law might well be upheld regardless of how“express advocacy” and “issue advocacy” aredefined in other contexts.

Finally, and most importantly, even ifBuckley should be read as limiting the current

regulatory reach of FECA to advertisementsusing “magic words,” that holding would notforeclose future legislatures, either state orfederal, from adopting new legislation thatregulates electioneering or defines “expressadvocacy” more broadly. The decision tonarrowly construe a statute to save it frompotential vagueness and overbreadth problemsdoes not prevent further legislative refinementsthat eliminate those problems. For example, inthe obscenity context, the Supreme Court inMiller v. California, 413 U.S. 15 (1973),provided specific examples of “hard core”sexual conduct that could be prohibited understate or federal obscenity laws. In a companioncase, United States v. 12 200-Ft. Reels of Super8mm. Film, 413 U.S. 123 (1973), the Courtstated that, if necessary to eliminate potentialvagueness and overbreadth problems in federalobscenity statutes, the Court was prepared tonarrowly construe such statutes to reach onlythose specific examples of “hard core” sexualconduct specifically delineated in Miller v.California. However, the Court made it clear thatCongress remained free to enlarge upon thisnarrowing construction and go beyond thespecifically enumerated “magic acts.” 12 200-Ft. Reels of Super 8mm. Film, 413 U.S. at 130 n.7(“Of course, Congress could always define otherspecific ‘hard core’ conduct.”)

This same reasoning doubtless applies in theelection law context. In Buckley, the Court wasconfronted with FECA regulations thatpurported to regulate all expenditures that were“relative to a clearly identified candidate” and“for the purpose of influencing” an election --two very broad and imprecise phrases. Whenthe Court chose to save FECA fromconstitutional invalidity by narrowly construingthese phrases to reach only “express advocacy,”it was forced to invent its own definition of“express advocacy” without any legislativelanguage to use as a guide. Even if the Courtintended to limit “express advocacy” in FECAto “magic words,” future legislative attemptsto regulate electioneering activity are notnecessarily bound by that limitation. Futurelegislatures are, of course, bound by thevagueness and overbreath concerns thatundergird the Buckley decision. But as long asthe legislation is both sufficiently narrow andprecise, future legislatures are free to adopt amore refined definition of “express advocacy”and regulate electioneering activity in a mannerthat accords with political reality. See Miller v.California, 413 U.S. at 25 (the function of theCourt is not to propose regulatory schemes, butinstead to await concrete legislative effortswhile providing the general principles foracceptable constitutional definitions). ❑


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Spurred in part by the abuses of the lastelection cycle, where corporations, laborunions, political parties, and advocacy

groups spent hundreds of millions of dollars onadvertisements that they claimed were mere“issue ads” despite a clear electioneering intent,the government and reformers inside andoutside of government have attempted to codifya definition of “express advocacy” that goesbeyond the “magic words” approach and betterreflects real world electioneering practices.Prominent among the recent attempts to define“express advocacy” are two different generalapproaches: (1) a “reasonable person” approach,which has been adopted by the FEC, and (2) adelimited time-period approach, which has beenproposed in the Senate. These two approachesdemonstrate the tension inherent in any attemptto satisfy simultaneously the Supreme Court’sdual concerns regarding vagueness andoverbreadth. The “reasonable person” approachtends to tilt in favor of increased breadth ofcoverage, but sacrifices some clarity. The“delimited time-period” approach offers clarity,but raises issues of potential over- and under-breadth of coverage. Either of these twoapproaches, however, is a clear improvementover the unworkable “magic words” approach.

The FEC Adopts a �ReasonablePerson� Approach

The FEC promulgated a regulation whichincorporated a “reasonable person” approachinto its definition of “express advocacy.” Underthe regulation, “express advocacy” is definedto include not only those communications whichcontain “magic words,” but also com-munications that “[w]hen taken as a whole andwith limited reference to external events such

as the proximity to the election, could only beinterpreted by a reasonable person as containingadvocacy of the election or defeat of one or moreclearly identified candidates(s) . . . .” Theregulation further states that, under itsreasonable person approach, the electoralportion of the communication must be“unmistakable, unambiguous, and suggestive ofonly one meaning.”

The definition of “express advocacy”contained in this FEC regulation attempts tocodify the expanded definition of “expressadvocacy” that met with the court’s approvalin Furgatch. It goes beyond “magic words” byincorporating a “reasonable person” standardthat applies in only a very narrow set ofcircumstances. In short, if “magic words” arenot used, the advertisement is “expressadvocacy” only if the electioneering purposeof the advertisement is unmistakable,unambiguous, and so clear that reasonableminds simply could not differ. Thus, theregulation attempts to bring within theregulatory sphere some of the most egregiousinstances of electioneering that occur withoutthe use of “magic words.”

Despite its narrow reach, this regulation wasimmediately challenged in the courts as anunconstitutional encroachment on free speech.In Maine Right to Life Committee, Inc. v. FEC,914 F. Supp. 8 (D. Me. 1996), a non-profitmembership corporation brought suit in federaldistrict court in Maine, arguing that thisdefinition of “express advocacy” was beyondthe FEC’s authority because it was both toobroad and unconstitutionally vague. The trialcourt concluded that this FEC definition of“express advocacy,” although derived from theappellate language in the Furgatch opinion,


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Recent Attempts To Better Define �Express Advocacy�

goes further than permitted by Supreme Courtprecedent. In a thoughtful opinion, the trialcourt nevertheless showed great sympathy forthe FEC’s regulatory attempt:

[T]he Federal Election Campaign Actis designed to avoid excessivecorporate financial interference inelections and the FEC presumably hassome expertise on the question whatform that interference may take basedon its history of complaints,investigations and enforcementactions. . . . Language, moreover, isan elusive thing. The topic here iscommunication and it is commonplacethat the meaning of words is not fixed,but depends heavily on context as wellas the shared assumptions of speakerand listener. . . . One does not need touse the explicit words “vote for” ortheir equivalent to communicateclearly the message that a particularcandidate is to be elected. [This]appears to be a very reasonable attemptto deal with these vagaries of languageand, indeed, is drawn quite narrowlyto deal with only the “unmistakable”and “unambiguous,” cases where“reasonable minds cannot differ” onthe message. “Limited reference toexternal events” is hardly a radicalidea. It is required even by the Buckleyterminology. After all, how does oneknow that “support” or “defeat” meansan election rather than an athleticcontest or some other event withoutconsidering the external context of afederal election with specificcandidates?

Despite these words of endorsement, thecourt reluctantly concluded that Buckley andMassachusetts Citizens for Life required themore rigid “magic words” approach. The court

believed that the Supreme Court endorsed abright line test in order to protect free speech,regardless of the effect on enforcement of theelection laws. As the court noted, “[t]he resultis not very satisfying from a realisticcommunications point of view and does not givemuch recognition to the policy of the electionstatute to keep corporate money frominfluencing elections in this way.” Thus,although the court candidly indicated that itbelieved that “the FEC had the better of theargument on its regulation so far as the logic oflanguage is concerned,” it neverthelessconcluded that Buckley had foreclosed anythingother than the narrow “magic words” test.

This trial court decision was affirmed bythe United States Court of Appeals for the FirstCircuit. Because that decision conflicts withthe decision by the United States Court ofAppeals for the Ninth Circuit in Furgatch, thegovernment asked the Supreme Court to reviewthe case and resolve the split among theappellate courts. The Supreme Court declinedto consider the case, and thus the split remains.

Senators Propose a DelimitedTime Period Approach

In response to criticism that the “reasonableperson” approach and other similar tests thatinvolve subjective criteria are too vague, somereformers have sought to define “expressadvocacy” through clearly delimited criteria thatexpand upon the “magic words” approach.Prominent among these types of reforms is a“delimited time period” approach. Under thisapproach, any advertisement that airs within aspecified period of time prior to an election isdeemed “express advocacy” if it refers to aspecifically identified candidate.

In the McCain-Feingold Bill introduced inthe Senate in 1997, for example, the definitionof “express advocacy” included not only


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communications that contain “magic words,”but also communications that advocate theelection or defeat of a candidate by “referringto one or more clearly identified candidates ina paid advertisement . . . within 60 calendar dayspreceding the date of an election. . . .” Underthis delimited time period approach, a potentialspeaker knows with certainty whichadvertisements will be deemed “expressadvocacy,” since the criteria -- explicitlyreferring to a candidate and the date on whichthe advertisement is communicated -- are clearand objectively determined.

The principal objection leveled against thedelimited time period approach is that it ispotentially overbroad. One can imagine anadvertisement which, although its intent is toinfluence the debate on an issue, mentions ordepicts a political candidate who is stronglyidentified with that issue. Thus, for example,opponents of the Vietnam War might desire toair an anti-war advertisement that depictsPresident Johnson, or opponents of some morerecent congressional initiative might desire toproduce advertisements that depict NewtGingrich.

Despite these theoretical possibilities, thedelimited time period approach is based on thecommon-sense recognition that, in the realworld, advertisements that depict candidatesand are run shortly before an election are almostinvariably intended to influence the election ordefeat of the depicted candidate. In fact, thepublic rarely sees commercials depicting a

politician or political candidate exceptimmediately before an election, and thosecommercials are broadcast in that time frameprecisely because they are intended to influencethe outcome of the imminent election.

Under McCain-Feingold’s delimited timeperiod approach, a person who desires toproduce an issue advertisement is given clearnotice of what is and is not permissible.Advertisements that simply discuss issues,without naming candidates are alwayspermissible. Advertisements that are com-municated more than 60 days prior to an electionmust simply avoid the use of “magic words.”Advertisements that are communicated within60 days of an election can discuss issues, aslong as the ads do not depict a particular candidate.

The commercials listed below in the columnon the left, all of which were broadcast duringthe 1996 election, were considered issue ads bytheir sponsors. Under the McCain-Feingoldproposal, these advertisements would all berecharacterized as “express advocacy.”However, the advocacy organizations, if theirtrue intent is to educate the public rather thaninfluence the outcome of a specific election,could easily reformulate these ads as shown inthe column on the right, and run thoseadvertisements any time, even within days ofan election. Additionally, because the ads inthe column on the left fail to use “magic words,”under the McCain-Feingold proposal they canbe broadcast without change as “issue ads”when an election is more than 60 days away. ❑


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EXPRESS ADVOCACY

Announcer: They worked hard alltheir lives. They’re our neighbors, ourfriends, our parents. They earnedSocial Security and Medicare. ButCongressman X voted five times to cuttheir Medicare. Even their nursinghome care. To pay for a $16,892 taxbreak he voted to give the wealthy.Congressman X, it’s not your moneyto give away. Don’t cut theirMedicare. They earned it.

Announcer: Some things are wrong.They’ve always been wrong. And nomatter how many politicians saythey’re right, they’re still hateful andwrong. Stand up for the right values.Call Representative X today. Ask himwhy he voted against the FlagProtection Amendment. Against thevalues we hold dear. TheConstitutional Amendment to safe-guard our flag, because America’svalues are worth protecting.

Announcer: Election year. There’llbe a lot flying through the air. Butwhen you look through the mud, yousee what Congressman X has helpedto achieve: The first real cut inspending since World War II. 270wasteful government programseliminated. Historic welfare reformthat requires recipients to work fortheir benefits. Why would we ever goback to the past? When you see themud, remember the accomplishments.Call Congressman X and tell him tokeep on reforming our government.

ISSUE ADVOCACY

Announcer: They worked hard alltheir lives. They’re our neighbors, ourfriends, our parents. They earnedSocial Security and Medicare. NowCongress wants to cut their Medicare,even their nursing home care. Why?To pay for a $16,892 tax break for thewealthy. Write or phone yourCongressman and tell him not to cutMedicare. They earned it.

Announcer: Some things are wrong.They’ve always been wrong. And nomatter how many politicians saythey’re right, they’re still hateful andwrong. Stand up for the right values.Call your Congressman and ask himto support the Flag ProtectionAmendment. Get Congress to supportthe values we hold dear. TheConstitutional Amendment tosafeguard our flag, because America’svalues are worth protecting.

Announcer: Election year. There’llbe a lot flying through the air. Butwhen you look through the mud, yousee what Congress has achieved: Thefirst real cut in spending since WorldWar II. 270 wasteful government pro-grams eliminated. Historic welfarereform that requires recipients to workfor their benefits. Why would we evergo back to the past? When you seethe mud, remember the accomplish-ments. Call your Congressman andurge him to keep on reforming ourgovernment.


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As the above examples illustrate, it ispossible to define “express advocacy” in amanner that both upholds the intent of thefederal election laws (by preventing blatantelectioneering with unregulated expenditures),while providing clear notice to advocacy groupsconcerning the limits imposed on “issueadvocacy” when an election is imminent.Although the delimited time period approachhas a broader sweep than some advocacy groupsmight ideally desire, it nevertheless provides avery wide berth for true issue-orientedcampaigns, even when they are conducted inthe midst of a federal election. The rule ofthumb would be, if you are interested inadvancing an issue, rather than a candidate, thenstick to the issue being advanced, rather thanthe political personalities who may beassociated with the issue, at least when anelection is imminent.

Additional Approaches andRefinements

The “reasonable person” approach and thedelimited time-period approach do not, ofcourse, exhaust the spectrum of possiblereforms that can provide the requisite level ofcertainty without prohibiting too much non-electioneering speech. Another model forreform is an intent-based approach, whichattempts to regulate advertisements based onthe speaker’s actual intent. Under this approach,a statute might prohibit, for example,advertisements in which the speaker’s “primarypurpose” is to influence voters to elect a clearlyidentified candidate.

The intent-based approach raises no seriousconcerns in regard to overbreadth — it isnarrowly-tailored to reach only thoseadvertisements that are truly intended to beelectioneering ads. Neither is it impermissiblyvague, for if there is one thing that any


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individual speaker surely knows, it is his or herown purpose or intent. Of course, the problemarises at the enforcement stage, since althoughan individual speaker will know his or her ownintent, that intent cannot be objectivelyascertained by a fact-finder. In practice, theenforcement of an intent-based approach wouldlikely mirror the enforcement of a “reasonableperson” approach. A person is presumed tointend the normal consequences of his actions,and regulators would assume that the intent ofan advertisement can be discerned from howthe ad is received by the viewing public.

A regulatory solution to defining “expressadvocacy” and “issue advocacy” can adopt oneor more of these approaches, in whole or in part.There are also a multitude of refinements thatcan be made to any of these approaches. Forexample, one could add a dollar threshold, adoptvarious targeting requirements, adopt higherburdens of proof, use legal presumptions, orallow limited exemptions, to name just a fewpossibilities.

A dollar threshold, for example, is usefulfor insuring that the election law does not inhibitde minimis electoral communications andlikewise does not become a trap for small andunsophisticated groups not engaging in asignificant amount of electioneering. Thus, astatute could specify that expenditures by anindividual or organization during an electioncycle that, in the aggregate, amount to less thanperhaps $10,000 are not subject to regulation.

A separate targeting requirement is helpfulin ensuring that the regulations are narrowlytailored to reach advertisements that are in factintended to influence the outcome of a particularelection. Thus, a regulation could prohibitcommunications that refer to a clearly identifiedcandidate and are “targeted to or substantiallydistributed in the geographic area in which the


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candidate is seeking election.” Under thisrefinement, if the Sierra Club, for example,wants to educate the American publicconcerning the anti-environmental record of theSpeaker of the House, it can do so during anelection year if the ads are run nationally ratherthan targeted to the media market for theSpeaker’s district.

Another method for addressing potentialoverbreadth problems in the “reasonableperson” or intent-based approaches is to raisethe standard of proof required for an exerciseof regulatory power. For example, there is aworld of difference between regulating anadvertisement which a reasonable person couldinterpret as containing an electioneeringmessage, and regulating advertisements that noreasonable person could take as containinganything other than an electioneering message.The first approach sweeps in all ads that arearguably electioneering, while the latterapproach sweeps in only those ads that areindisputably electioneering. Similarly, anintent-based approach could require a regulatorto present “clear and convincing” evidence of aspeaker’s electioneering intent before findingan election law violation, a standard whichwould reduce the likelihood of governmentover-regulation of speech that is close to theline.

The use of presumptions provides anotherpotential refinement that can serve to addressthe overbreadth issue in regard to any of theseapproaches. For example, an intent-basedapproach could incorporate a rebuttablepresumption that ads which mention a candidateand are aired within a certain time frame arefor an electioneering purpose. Because thepresumption is rebuttable, rather than

conclusive, there is less risk of overbreadth.Thus, the Vietnam War protestors discussedabove could air their advertisement depictingPresident Johnson, although they would be onnotice that, if the ad is run close to an electionin which President Johnson is a candidate, theburden will be on them to demonstrate their non-electioneering intent. The use of objectivepresumptions, while providing speakers with ahigh degree of certainty concerning what typeof speech will normally be subject to regulation,also provides a safety-valve that allows speakersto demonstrate that their communication,although in a format usually associated withelectoral advocacy, is in fact not electioneering.

Finally, exemptions can also be providedfor specific electioneering conduct that raisesheightened First Amendment concerns. Forexample, an exemption can be provided forspeech with an electioneering message that iscommunicated solely to an organization’s ownmembership. Such an exemption eliminates thepossibility that prohibitions on electioneeringwill attempt to reach regular editions of anewsletter put out by a corporation or laborunion and sent only to their members. Similarly,an exemption can be tailored for non-partisanvoting cards, such as those put out by the Leagueof Women Voters.

As this short discussion indicates, reforminitiatives are not limited to any single approachfor defining “express advocacy.” There areseveral different types of approaches thatprovide the requisite level of certainty withoutrestricting too much speech that truly is notelectioneering in nature. Likewise, there aremany refinements which can, in principle, helpmake the major approaches more narrowly-tailored to reach only electioneering speech. ❑

Any attempt by campaign financereformers to expand the definition of“express advocacy” beyond “magic

words” will likely lead to a court challengeuntil the Supreme Court resolves the splitamong the appellate courts concerning thisissue. While the Court in Buckley was properlyconcerned that an ambiguous test for “expressadvocacy” might serve to chill constitutionallyprotected “issue advocacy,” that concern doesnot justify a wooden “magic words” test thatelevates form over substance and evisceratesthe effectiveness of the entire regulatoryscheme governing electioneering. In everyarea of First Amendment jurisprudence, courtsare required to engage in delicate line drawingbetween protected speech and speech thatproperly may be regulated. It is unlikely thatthe First Amendment requires, in the area ofelection regulations alone, a mechanical,formulaic test that readily invites evasion.


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Conclusion

The challenge facing campaign financereformers seeking to regulate electioneeringcommunications is to develop a test for “expressadvocacy” that meets the Supreme Court’s dualconcerns regarding vagueness and overbreadth,which are necessarily in tension with each other.The test must be clear enough so that personsor organizations seeking to engage in politicaladvertising will be able to determine withreasonable certainty beforehand whether anadvertisement will be treated as regulated“express advocacy.” Additionally, the test mustbe broad enough to cover situations in whichan electioneering intent and message are clear,but not so broad as to sweep in true “issueadvocacy.” Recent proposals by the FEC andCongressional reformers are promising attemptsto define “express advocacy” and “issueadvocacy” in both a more realistic and aconstitutionally permissible manner. ❑

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