Defining Express Advocacy for Purposes of Campaign Finance Reporting and Disclosure Laws

Abstract:     
One of the most important and difficult questions confronting campaign finance reform is the extent to which states or Congress may require reporting and disclosure of the sources and uses of independent expenditures made for the purposes of influencing elections. Because campaign finance laws may not directly limit independent expenditures, reporting and disclosure requirements are the principal means of regulating independent expenditures in connection with political campaigns. The express advocacy requirement of Buckley v. Valeo, however, has made it relatively easy for those making independent expenditures to avoid application of reporting and disclosure requirements. By eschewing the use of “magic words” or other explicit language urging the audience to vote for or against a candidate or candidate, an individual or group (other than a political committee) can make independent expenditures for “issue advertisements” that are clearly designed to further the election or defeat of a candidate yet are exempt from reporting and disclosure requirements. As a result, the use of issue advertising has proliferated and has become the target of campaign finance reform efforts.

Buckley and subsequent decisions, however, leave unclear the extent to which states may apply reporting and disclosure requirements to independent expenditures that contain a clear message of support for or opposition to a candidate without using the magic words of express advocacy or otherwise explicitly urging the audience to vote for or against that candidate. In Kansans for Life v. Gaede, the Federal District Court for the District of Kansas recently held that this this sort of issue advocacy was constitutionally protected such that the person placing sich an advertisement may not required to disclose the source of the funds used to pay for it. My concern lies not so much with the result, which is arguably correct, but with the court's reasoning, which I believe is overly broad and reflects some common misconceptions regarding the meaning of Buckley and its progeny. My goal with this article is to bring some order to the chaos of constitutional doctrine in the hope that decisionmakers can proceed with a better understanding of the limits of campaign finance reporting and disclosure laws.

I begin with a relatively detailed exposition of the relevant portions of Buckley, which focuses on separating the constitutional and statutory components of the Court's analysis of reporting and disclosure laws. This analysis suggests that Buckley in fact recognized two distinct constitutional concerns: the protection of “issue advocacy” from overbroad reporting and disclosure laws and the problem of vague statutory provisions that provide insufficient notice to the speaker regarding what independent expenditures are covered by reporting and disclosure requirements. The article then considers these constitutional concerns in light of subsequent Supreme Court and lower court decisions, concluding that neither Buckley nor subsequent decisions erect an absolute constitutional barrier to the application of reporting and disclosure requirements to advertisements that advocate for or against candidates but contain issue advocacy. Moreover, because the express advocacy requirement of Buckley was imposed as a matter of statutory construction, reporting and disclosure requirements can be extended to campaign related speech that is not express advocacy, provided that the statute in question contains a clear definition of the communications to which it applies and prevents its broad application to pure issue advocacy. The article then criticizes the Gaede decision in light of these conclusions, and examines the implications of the decisions for the future reform of campaign finance regulation in the state.

Number of Pages in PDF File: 36

Accepted Paper Series