98-282 A
Updated May 15, 1998
CRS Report for Congress
Received through the CRS Web
Campaign Finance Reform: A Legal Analysis of
Issue and Express Advocacy
L. Paige Whitaker
Legislative Attorney
American Law Division
Summary
Issue advocacy communications have become increasingly popular over the last
two federal election cycles. Often these advertisements could be interpreted to favor or
disfavor certain candidates, while also serving to inform the public about a policy issue.
However, unlike communications that expressly advocate the election or defeat of a
clearly identified candidate, the Supreme Court has ruled that issue ads are
constitutionally protected First Amendment speech and cannot be regulated. Only
speech containing express words of advocacy of election or defeat, also known as
“express advocacy,” can be regulated and therefore be subject to the requirements of the
Federal Election Campaign Act (FECA). Currently, in the federal circuit courts, an
apparent conflict exists as to precisely which type of communications constitute express
advocacy versus which types of communications constitute First Amendment protected
issue advocacy.
H.R. 2183 (Hutchinson/Allen) would regulate an advocacy communication (by
requiring disclosure) that "mentions" or "includes (by name, representation, or likeness)"
any House or Senate candidate. H.R. 3526 (Shays/Meehan) would regulate an advocacy
communication (by subjecting it to full FECA coverage) that contains explicit language
that in context could have no other reasonable meaning than the express advocacy of the
election or defeat of a clearly identified candidate; or is a paid broadcast citing a
candidate within 60 days of the election; or taken as a whole, with limited reference to
external events, contains unambiguous advocacy.
Supreme Court Decisions
In the 1976 landmark decision, Buckley v. Valeo,1 the Supreme Court distinguished
between communications that expressly advocate the election or defeat of a clearly
identified candidate and those communications that advocate a position on an issue. The
1 424 U.S. 1 (1976).
Congressional Research Service ˜ The Library of Congress

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Court found that the latter type of communication is constitutionally protected First
Amendment speech and that only speech containing express words of advocacy of
election or defeat, also known as “express advocacy,” could be subject to regulation.2
Further, the Court found that express advocacy included certain words of advocacy of
election or defeat, such as, “vote for,” “elect,” “support,” “cast your ballot for,” “Smith
for Congress,” “vote against,” “defeat,” or “reject.”3 These words are often referred to as
the “magic words,” required under Buckley, in order for a communication to constitute
express advocacy.
More recently, in the 1986 decision of Federal Election Commission v.
Massachusetts Citizens for Life, Inc., (MCFL), the Supreme Court continued to
distinguish between issue and express advocacy, holding that an expenditure must
constitute express advocacy in order to be subject to the Federal Election Campaign Act
(FECA) prohibition against corporations using treasury funds to make an expenditure “in
connection with” any federal election. In
4
MCFL the Court ruled that a publication urging
voters to vote for “pro-life” candidates, while also identifying and providing photographs
of certain candidates who fit that description, could not be regarded as a “mere discussion
of public issues that by their nature raise the names of certain politicians.” Instead, the
Court found, that the publication effectively provided a directive to the reader to vote for
the identified candidates and ergo, constituted express advocacy.5
Federal Election Commission Regulations
In 1995, the Federal Election Commission (FEC) promulgated regulations defining
express advocacy:
Expressly advocating means any communication that--(a) Uses phrases such as
“vote for the President,” “re-elect your Congressman,” “support the Democratic
nominee,” “cast you ballot for the Republican challenger for U.S. Senate in Georgia,”
“Smith for Congress,” “Bill McKay in ‘94,” “vote Pro-Life” or “vote Pro-Choice”
accompanied by a listing of clearly identified candidates described as Pro-Life or Pro-
Choice, “vote against Old Hickory,” “defeat” accompanied by a picture of one or
more candidate(s), “reject the incumbent,” or communications of campaign slogan(s)
or individual word(s), which in context can have no other reasonable meaning than
to urge the election or defeat of one or more clearly 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 as
containing 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 one meaning; and
2 Id. at 40-44.
3 Id. at 44 n.52.
4 479 U.S. 238, 249-250 (1986). 2 U.S.C. § 441b(a) prohibits corporations from making
expenditures in connection with any federal election.
5 Id. at 249.

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(2) Reasonable minds could not differ as to whether it encourages actions to
elect or defeat one or more clearly identified candidate(s) or encourages some other
kind of action.6
Circuit Court Conflict
Currently, it appears that the circuit courts have not clearly defined what constitutes
express advocacy versus what constitutes issue advocacy. In Federal Election
Commission v. Furgatch, the Ninth Circuit found that in order to constitute express
advocacy, speech need not include any of the specific words set forth in Buckley v. Valeo.7
Instead, the court of appeals presented a three part test for determining 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 present purposes if its message is unmistakable and
unambiguous, suggestive of only one plausible meaning. Second, speech may only
be termed ‘advocacy’ if it presents a clear plea for action, and thus speech that is
merely informative is not covered by the Act. Finally, it must be clear what action is
advocated. Speech cannot be ‘express advocacy of the election or defeat of a
candidate’ when reasonable minds could differ as to whether it encourages a vote for
or against a candidate or encourages the reader to take some other kind of action. 8
Notably, the third prong of the test exempts speech from constituting “express advocacy”
when reasonable minds could disagree as to whether it encourages a vote for 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 the Federal
Election Commission has promulgated into regulations consistent with the Furgatch
decision.
9 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 of public 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 of what communication is regulated and what is not.10
Consistent with MRLC, most recently in the 1997 case of Federal Election Commission
v. Christian Action Network, the Fourth Circuit also found that the Supreme Court has
“unambiguously” held that the First Amendment “forbids the regulation of our political
speech under...indeterminate standards.” Further, the court noted that the Supreme Court
6 FEC definition of “Expressly advocating,” 11 C.F.R. § 100.22 (1997).
7 807 F.2d 857 (9th Cir. 1987), cert. denied, 484 U.S. 850 (1987).
8 Id. at 864.
9 914 F. Supp. 8, 12 (D. Maine 1996), aff’d 98 F.3d 1 (1 Cir. 1996),
st
cert. denied, 118 S.
Ct. 52 (1997). See supra text accompanying note 6 for the FEC regulation defining express
advocacy.
10 Id.

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has held that express words advocating the election or defeat of a candidate are the
“constitutional minima.”11
Conclusion
The Supreme Court has distinguished between express advocacy and issue advocacy
communications. According to the Court in Buckley and Massachusetts Citizens for Life,
issue advocacy is First Amendment protected speech and cannot constitutionally be
regulated. Communications that expressly advocate the election or defeat of a clearly
identified candidate, however, can be subject to regulation. According to the First and
Fourth Circuit Courts, in order to qualify as express advocacy, a communication must
contain the “magic words” identified by the Supreme Court in Buckley v. Valeo. In
contrast, the Ninth Circuit has ruled that, even if the “magic words” are not present, a
communication could constitute express advocacy if it passes the “reasonable person”
test. The Federal Election Commission regulations defining express advocacy are
consistent with the Ninth Circuit opinion.
11 110 F.3d 1049, 1064 (4th Cir. 1997).

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