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

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 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