Letter to FEC Re: Regulation of Express Advocacy

December 8, 1997

Susan E. Propper
Assistant General Counsel
Federal Election Commission
999 E Street, NW
Washington, DC 20463

Dear Ms. Propper:

I would like to take this opportunity to comment on behalf of the Brennan Center for Justice and the NYU School of Law in opposition to the Petition for Rulemaking submitted by James Bopp Jr. on behalf of the James Madison Center for Free Speech. The Madison Center contends that Federal Election Commission. is prohibited from defining “express advocacy” in any manner that goes beyond the narrow “magic words” approach, which was adopted by the First Circuit in Maine Right to Life Committee v. F.E.C., 98 F.3d 1 (1st Cir. 1996).

The Brennan Center believes that the F.E.C. properly rejected the “magic words” approach recently adopted by the First Circuit in Maine Right to Life, in favor of the long-standing and better reasoned decision of the Ninth Circuit in F.E.C. v. Furgatch, 807 F.2d 857 (9th Cir. 1987), cert. denied, 484 U.S. 850 (1987). We believe that the Madison Center and the First Circuit err in concluding that the Supreme Court’s decision in Buckley v. Valeo, 424 U.S. 1 (1976), requires a narrow “magic words” approach in defining “express advocacy.”

Relying on Maine Right to Life, the Madison Center contends that whether a particular advertisement constitutes “express advocacy” can be judged simply on the face of the advertisement, without reference to any other facts. Under the Madison Center’s theory, the absence of specific “magic words,” such as “vote for,” “support,” or “defeat” is the sole permissible test of whether an advertisement constitutes express advocacy. Thus, it is the Madison Center’s position that, even if there were clear, unambiguous, and undisputed proof that advertisements were conceived, produced, and shown for the sole purpose of advocating the defeat of a particular identified candidate, and even if every viewer of those advertisements understood them to be advocating the defeat of the identified candidate, the ads nevertheless would not constitute express advocacy so long as they failed to use a “magic word” like “defeat” or “vote against.”

As the Ninth Circuit properly held in Furgatch, nothing in the Constitution or the Supreme Court’s decision in Buckley requires such a wooden, mechanical reading of the election laws. The F.E.C. properly invoked its rulemaking authority to define “express advocacy” in accordance with both the letter and the spirit of the nation’s election laws.

In Buckley v. Valeo, the Supreme Court, in order to avoid vagueness and overbreadth problems, adopted the express advocacy standard as a narrowing construction for two Federal Election Campaign Act (FECA) provisions. First, the Court held that section 608(e)(1), which imposes a $1,000 limit on independent expenditures “relative to a clearly identified candidate” should apply only to express advocacy. 424 U.S. at 39–44. Similarly, the Court held that section 434(e), which imposes reporting requirements on independent expenditures aggregating over $100, should likewise be construed “to reach only funds used for communications that expressly advocate the election or defeat of a clearly identified candidate.” 424 U.S. at 80.

In footnote 52, the Court provided an illustrative sample of phrases that met its definition of express advocacy. The Court stated, “This construction would restrict the application of 608(e)(1) to communications containing express words of advocacy of election or defeat, such as ‘vote for,’ ‘elect,’ ‘support,’ ‘cast your ballot for,’ ‘Smith for Congress,’ ‘vote against,’ defeat,’ ‘reject.’” 424 U.S. at 44 n.52. It is this isolated language from footnote 52 that the Madison Center contends locks election law jurisprudence into an inescapable box governed solely and exclusively by the use of “magic words.”

The Madison Center’s reading of Buckley is incorrect. The examples provided by the Court in footnote 52 are intended to illustrate some of the phrases that clearly meet the express advocacy standard; they do not purport to provide the exclusive test for meeting the express advocacy standard. It is important to remember that Buckley was decided in the abstract, on an expedited basis, and without analysis of specific factual situations. In similar situations, the Supreme Court itself has cautioned, “the language of an opinion is not always to be parsed as though we were dealing with language of a statute.” CBS, Inc. v. FCC, 453 U.S. 367, 385 (1981), quoting Reiter v. Sonotone Corp., 442 U.S. 330, 341 (1979).

The Court adopted the express advocacy test for the purpose of distinguishing between advertisements that advocate the election or defeat of a particular candidate and advertisements that are engaged purely in issue discussion. 424 U.S. at 79. Because of this, Buckley’s “express advocacy” formulation is best understood as requiring an electioneering message that is clear and unambiguous. That accords with ordinary meaning of the word “express,” which is defined in Black’s Law Dictionary as “[c]lear; definite; explicit; plain; direct; unmistakable; not dubious or ambiguous.” Black’s Law Dictionary 580 (6th ed. 1990). It is the lack of ambiguity, not the presence of “magic words,” that was the focus of Buckley. See 424 U.S. at 80 (FECA regulations were “directed precisely to that spending that is unambiguously related to the campaign of a particular federal candidate") (emphasis added). The Court’s desire in Buckley to distinguish between express advocacy and true issue advocacy, cannot be reduced to an irrelevant word game.

Indeed, the Supreme Court’s post-Buckley pronouncements do not support the exclusive use of a “magic words” test for express advocacy. The only time the Supreme Court has applied the express advocacy test to concrete facts, in FEC v. Massachusetts Citizens for Life, Inc., 479 U.S. 238 (1986), the Court failed to rely on the wooden, literal approach. Massachusetts Citizens for Life involved a pro-life newsletter that urged readers to “vote pro-life” in an upcoming primary election, listed every candidate for state and federal office, and identified each candidate’s view on pro-life issues, together with a disclaimer that the newsletter did not endorse any particular candidate. 479 U.S. at 243. Despite the disclaimer, the Court found that the pro-life newsletter contained express advocacy:

The Edition cannot be regarded as a mere discussion of public issues that by their nature raise the names of certain politicians. Rather, it provides in effect an explicit directive: vote for these (named) candidates. The fact that this message is marginally less direct that “Vote for Smith” does not change its essential nature. The Edition goes beyond issue discussion to express electoral advocacy. The disclaimer of endorsement cannot negate this fact.

Id. at 249 (emphasis added). Thus, the Court’s analysis was not limited to the presence or absence of specific “magic words;” rather the Court also relied upon the “essential nature” of the message and what it conveyed “in effect.” Thus, Massachusetts Citizens for Life makes it clear that the test for express advocacy is not one that ignores context and true intent. Massachusetts Citizens for Life’s focus on the “essential nature” and “effect” of the speech at issue is the proper reading of Buckley.

The Court in Buckley was properly concerned that an ambiguous test for express advocacy might serve to chill constitutionally protected issue advocacy. However, the Court did not conclude that, in order to avoid any possible vagueness problem, it should adopt a wooden “magic words” test that elevates form over substance and eviscerates the effectiveness of the regulatory scheme. In every area of First Amendment jurisprudence, courts are required to engage in delicate line drawing between protected speech and speech that properly may be regulated. In none of these areas has the Supreme Court thrown up its hands and adopted a wooden, mechanical test that ignores either the context of the speech at issue or the purpose underlying the regulatory scheme.

For example, despite legitimate First Amendment concerns, the Court allows legislatures to criminalize the use of “fighting words” without requiring a well-defined list of such words. The test used by the Court for determining whether speech constitutes fighting words is based not only on the words themselves, but also on the context in which the words are uttered. See Cohen v. California, 403 U.S. 15, 20 (1971) (“No individual actually or likely to be present could reasonably have regarded the words on appellant’s jacket as a direct personal insult”) (emphasis added); Eaton v. City of Tulsa, 415 U.S. 697, 700 (1974) (Powell, J., concurring) (“Whether the language used by petitioner in a courtroom during trial justified exercise of the contempt power depended upon the facts”) (emphasis added); Hess v. Indiana, 414 U.S. 105, 107 (1973) (“Even if under other circumstances this language could be regarded as a personal insult, the evidence is undisputed that Hess’ statement was not directed to any person or group in particular”) (emphasis added).

Similarly, in the area of obscenity, the Court has not required (indeed it will not permit) legislatures to adopt either a bright-line test or a formulaic list of words and sexual acts constituting obscenity. Rather, the test for obscenity requires a determination of: (1) whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest; (2) whether the work depicts or describes specified sexual conduct in a patently offensive way, and (3) whether the work, taken as a whole, lacks serious literary, artistic, political or social value. Miller v. California, 413 U.S. 15, 24 (1973). This test, of course, is far from unambiguous.

Likewise, in libel cases involving the press, the Court has eschewed the simple bright-line approach of imposing liability based on the truth or falsity of the statement published. Instead, the Court has developed a multi-factor analysis that examines, among other things, whether the subject of the statement is a public figure, whether the statement involves matters of public concern, whether the speaker acted with reckless disregard for the truth or falsity of the statement, and whether a reasonable reader would perceive the statement as stating actual facts or merely rhetorical hyperbole. See, e.g., Milkovich v. Lorain Journal Co., 497 U.S. 1, 14–17 (1990); Gertz v. Robert Welch, Inc., 418 U.S. 323, 334–39 (1974); Greenbelt Cooperative Publishing Assn, Inc. v. Bresher, 398 U.S. 6, 13 (1970).

In all of these areas, the Court has not adopted a wooden, bright-line test and instead relies on the context and nature of the expression at issue. There is no reasonable basis for concluding that election regulations alone, among all of the activities raising First Amendment concerns, should be governed by a mechanical, formulaic test. See Denver Area Educ. Telecommunication Consortium v. FCC, 116 S.Ct. 2374, 2385 (1996) (plurality opinion) (“the First Amendment embodies an overarching commitment to protect speech . . . without imposing judicial formulae so rigid that they become a straightjacket that disables Government from responding to serious problems”).

Section 100.22 of 11 C.F.R. appropriately looks to the context of an advertisement, and limits itself to regulating those ads in which “[t]he electoral portion of the communication is unmistakable, unambiguous, and suggestive of only one meaning.” Because the definitional line adopted by the F.E.C. is appropriately narrow and the scope of the coverage is predictable, the concerns of the Court in Buckley are satisfied, and there is no constitutional objection to defining “issue advocacy” in a manner that regulates blatant electioneering that simply fails to utilize “magic words.”

Respectfully submitted,

Glenn J. Moramarco