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

Publication Date: March 2002

Publisher: Library of Congress. Congressional Research Service

Author(s):

Research Area: Politics

Type:

Abstract:

Issue advocacy communications have become increasingly popular in recent federal election cycles. These advertisements are often 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 determined that issue ads are constitutionally protected First Amendment speech that cannot be regulated in any manner. According to most lower court rulings, only speech containing express words of advocacy of election or defeat, also known as “express advocacy” or “magic words” can be regulated as election-related communications and therefore be subject to the requirements of the Federal Election Campaign Act (FECA). Unlike express advocacy communications, therefore, issue ads may be paid for with funds unregulated by federal law, i.e., soft money.

H.R. 2356 (Shays/Meehan), as passed by the House, would create a new term in federal election law, “electioneering communication,” which would regulate political ads that: “refer” to a clearly identified federal candidate, are broadcast within 30 days of a primary or 60 days of a general election, and, for House and Senate elections, are “targeted to the relevant electorate.” Generally, it would require disclosure of disbursements over $10,000 for such communications, including identification of each donor of $1,000 or more, and would prohibit the financing of such communications with union or certain corporate funds. Likewise, S. 27 (McCain/Feingold), as passed by the Senate, would regulate the same communications as H.R. 2356 in the same manner except, with regard to the audience receiving the communication, S. 27 provides that the communication be made to an audience that “includes” voters in that election.