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WISCONSIN RIGHT TO LIFE AND THE
RESURRECTION OF FURGATCH
Paul S. Ryan*
INTRODUCTION
Much debate has occurred among lawyers and scholars over the past thirty
years regarding the dividing line between “express advocacy” and “issue advocacy” (which some characterize as “grassroots lobbying”). The term “express
advocacy” dates back to the Supreme Court’s 1976 decision in Buckley v.
Valeo,1 where the Court narrowly construed the federal statutory definition of
“expenditure” to apply, for certain purposes, “only to expenditures for communications that in express terms advocate the election or defeat of a clearly identified candidate for federal office.”2 The Court listed examples of what have
since come to be known as the “magic words” of express advocacy: “‘vote for,’
‘elect,’ ‘support,’ ‘cast your ballot for,’ ‘Smith for Congress,’ ‘vote against,’
‘defeat,’ [and] ‘reject.’”3
Since the Court’s Buckley decision, lawyers have debated whether and how
the term “express advocacy” could be defined more broadly without running
afoul of the Constitution. Ten years after the Buckley decision, the Supreme
Court held in Federal Election Commission v. Massachusetts Citizens for Life
(MCFL)4 that a communication need not use the exact phrases listed in Buckley
in order to be deemed express advocacy, and instead could be “less direct” so
long as the “essential nature” of the message is “express electoral advocacy”—
but the question of how “less direct” persisted.5 Then in 1987, the Ninth Circuit
held in Federal Election Commission v. Furgatch6 that speech could be deemed
express advocacy when it is “susceptible of no other reasonable interpretation
* FEC Program Director and Associate Legal Counsel, The Campaign Legal Center.
B.A., University of Montana, 1998; J.D., University of California, Los Angeles, 2001.
1. 425 U.S. 1 (1976).
2. Id. at 44.
3. Id. at 44 n.52.
4. 479 U.S. 238 (1986).
5. Id. at 249.
6. 807 F.2d 857 (9th Cir. 1987).
130
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but as an exhortation to vote for or against a specific candidate.”7 This standard
became known as the “Furgatch standard” and was eventually incorporated
into the two-part regulatory definition of “express advocacy” promulgated by
the Federal Election Commission (FEC) (with the other part being the “magic
words” standard).8
The “magic words” standard and the Furgatch standard have served as the
two alternate standards defining “express advocacy” since the mid-1980s.
While critics of the “magic words” test have argued that the test is so easy to
avoid that it is meaningless, critics of the Furgatch standard have argued that it
is unconstitutionally vague and overbroad. By the turn of the century, numerous federal and state courts had rejected the Furgatch standard as unconstitutional and the FEC had stopped enforcing its Furgatch-like definition of “express advocacy.”9
For all intents and purposes, the Furgatch standard was considered dead.
But the tide began to shift again in 2003, when the Supreme Court in its
McConnell decision recognized that the “magic words” test is not required by
the Constitution and that, indeed, the test is “functionally meaningless.”10 Soon
after the Court’s decision in McConnell, the FEC resurrected its Furgatch-like
definition of “express advocacy” in the context of numerous enforcement actions against 501(c)(4) organizations and so-called 527 organizations that had
been active in the 2004 presidential election but that refused to comply with
federal “political committee” requirements and restrictions. Employing its Furgatch-like definition of “express advocacy” for the first time in years, the FEC
exacted millions of dollars in civil penalties from several 501(c)(4) and 527 organizations through settlement agreements.11
Finally, in mid-2007 in Federal Election Commission v. Wisconsin Right to
Life (WRTL),12 the Supreme Court revisited its decision in McConnell to determine whether or not a handful of specific ads were the “functional equiva7. Id. at 864.
8. See 11 C.F.R. § 100.22(a)-(b) (2007).
9. See, e.g., N.C. Right to Life, Inc. v. Leake, 344 F.3d 418 (4th Cir. 2003); Chamber
of Commerce of U.S. v. Moore, 288 F.3d 187 (5th Cir. 2002); Va. Soc’y for Human Life v.
FEC, 83 F. Supp. 2d 668 (E.D. Va. 2000); Governor Gray Davis Comm. v. Am. Taxpayers
Alliance, 102 Cal. App. 4th 449 (Cal Ct. App. 2002); League of Women Voters of Colo. v.
Davidson, 23 P.3d 1266 (Colo. App. 2001); Wash. State Republican Party v. Wash. State
Pub. Disclosure Comm’n, 141 Wash. P.2d 245 (Wash. 2000).
10. See McConnell v. FEC, 540 U.S. 93, 193 (2003).
11. See, e.g., In re National Assoc. of Realtors Conciliation Agreement, MUR 5577,
5620, § IV ¶ 13 (June 19, 2007), available at http://eqs.sdrdc.com/eqsdocs/00005DB9.pdf;
In re Progress for America Voter Fund, MUR 5487, § VII (Feb. 28, 2007), available at
http://eqs.nictusa.com/eqsdocs/00005AA7.pdf; In re Swiftboat Veterans and POWs for
Truth Conciliation Agreement, MUR 5511, 5525, §VI ¶ 1 (Dec. 13, 2006), available at
http://eqs.nictusa.com/eqsdocs/000058ED.pdf; In re Sierra Club Conciliation Agreement,
MUR 5634, § IV ¶ 11 (Nov. 15, 2006), available at http://eqs.nictusa.com/eqsdocs/
00005815.pdf.
12. 127 S. Ct. 2652, 2659 (2007).
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lent” of “express advocacy”—once again examining the line between candidate
advocacy and so-called grassroots lobbying.13 In doing so, Chief Justice Roberts articulated a test nearly identical to the much-disputed Furgatch test: “[A]
court should find that an ad is the functional equivalent of express advocacy
only if the ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.”14
This article examines the history of the “express advocacy” standards generally and the Furgatch “express advocacy” standard in particular—from the
Buckley decision to the Furgatch decision, to the FEC’s Furgatch-like regulatory definition of “express advocacy,” to the rejection of this standard by many
courts, to the abandonment of the standard by the FEC, to the FEC’s resurrection of the standard in 2006, to Chief Justice Roberts’s opinion in WRTL endorsing the standard as a constitutional means of distinguishing between candidate advocacy and issue advocacy / lobbying. To be certain, Chief Justice
Roberts’ test is already being called into question by his colleagues on the
Court and by those who attempted to influence the FEC’s rulemaking to interpret the WRTL decision. This article will conclude with an examination of this
latest round of criticism and a look to the future viability of the Furgatch/Roberts standard.
I. FROM BUCKLEY TO MCFL TO FURGATCH (1976-1987)
In 1974, Congress amended the Federal Election Campaign Act (FECA) to
provide that “[n]o person may make any expenditure . . . relative to a clearly
identified candidate during a calendar year which, when added to all other expenditures made by such person during the year advocating the election or defeat of such candidate, exceeds $1,000.”15 This provision was challenged on
First Amendment grounds in Buckley and the Court was troubled by the vagueness of the phrase “relative to a clearly identified candidate.” The Court noted
that the statutory language “clearly permits . . . the phrase ‘relative to’ a candidate to be read to mean ‘advocating the election or defeat of’ a candidate,” but
opined that such a construction failed to “eliminate[] the problem of unconstitutional vagueness altogether.”16 In order to preserve the expenditure limit from
invalidation on vagueness grounds, the Court narrowly construed the phrase
“relative to a clearly identified candidate” to “apply only to expenditures for
communications that in express terms advocate the election or defeat of a
clearly identified candidate for federal office.”17 The Court explained in a footnote that “[t]his construction would restrict the application of [the spending
13. Id. at 2659.
14. Id. at 2667.
15. Federal Election Campaign Act Amendments of 1974, Pub. L. No. 93-443, §
101(a), 88 Stat. 1263, 1263-66 (emphasis added); Buckley v. Valeo, 424 U.S. 1, 39 (1976).
16. Buckley, 424 U.S. at 42.
17. Id. at 44 (emphasis added).
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limit] 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.’”18 These phrases quickly became
known as the “magic words” of express advocacy. Notwithstanding the Court’s
narrow construction of the independent expenditure limit, the Court invalidated
the provision on the ground that it failed to serve any substantial government
interest and was unconstitutional under the First Amendment.19
In addition to amending FECA to include the independent expenditure
limit that produced the “express advocacy” test, Congress also amended FECA
in 1974 to require that every person spending more than $100 in a calendar year
“for the purpose of . . . influencing” the nomination or election of candidates to
federal office file a disclosure report with the FEC.20 This independent expenditure disclosure provision was likewise challenged on First Amendment
grounds in Buckley. The Court held that the “for the purpose of . . . influencing” definition of “expenditure” was constitutional and in no need of a narrowing construction as applied to candidates and groups with a “major purpose” of
nominating or electing candidates (i.e., political committees).21 However, the
Court had vagueness concerns regarding application of the “expenditure” definition and attendant reporting requirements to individuals and groups other than
political committees.22 The Court reasoned:
[W]hen the maker of the expenditure is not within these categories[—]when it
is an individual other than a candidate or a group other than a “political committee”—the relation of the information sought to the purposes of the Act may
be too remote. To insure that the reach of [the reporting requirement] is not
impermissibly broad, we construe “expenditure” for purposes of that section in
the same way we construed the terms of [the independent expenditure limit—]
to reach only funds used for communications that expressly advocate the election or defeat of a clearly identified candidate. This reading is directed precisely to that spending that is unambiguously related to the campaign of a particular federal candidate.23
Although the independent expenditure limit that initially prompted the
Buckley Court to articulate the “express advocacy” test was invalidated in the
same opinion, the Court upheld the disclosure requirements as a constitutionally permissible means of advancing the government’s interests in stemming
actual and apparent corruption and in informing the electorate about who financially supports particular candidates.24
The Buckley Court’s narrow “express advocacy” construction of FECA’s
18. Id. at 44 n.52.
19. FECA § 201(a), 88 Stat. at 1272-75 (defining expenditure); Id. § 204(c), 88 Stat. at
1277-78 (mandating disclosure for expenditures over $100); Buckley, 424 U.S. at 51.
20. Buckley, 424 U.S. at 74-77.
21. Id. at 78-79.
22. Id. at 79-80.
23. Id. (footnote omitted).
24. Id. at 80-81.
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“for the purpose of influencing” definition of “expenditure” was carried over
by the FEC into implementation and enforcement of various other federal campaign finance law provisions dependent upon the definition. Ten years after
Buckley, the FEC ended up before the Supreme Court in MCFL in an effort to
enforce the federal law prohibition on corporate and labor union “expenditures”
in connection with federal elections.25
In September 1978, just prior to a primary election, the nonprofit corporation Massachusetts Citizens for Life (MCFL) prepared and distributed more
than 100,000 copies of a publication with a headline reading “EVERYTHING
YOU NEED TO KNOW TO VOTE PRO-LIFE,” and admonishing readers that
“[no] pro-life candidate can win in November without your vote in September.”
The phrase “VOTE PRO-LIFE” was printed in large bold-faced letters on the
back page, and the publication listed the candidates for each state and federal
office in Massachusetts—identifying each one as either supporting or opposing
(with a “y” or “n”) what MCFL considered the correct position on three issues
and including an asterisk next to the names of incumbents who had made a
“special contribution to the unborn in maintaining a 100% pro-life voting record in the state house by actively supporting MCFL legislation.” The publication also featured the photos of thirteen candidates with exceptional “pro-life”
voting records.26
Based on a complaint filed with the FEC alleging that MCFL’s payment to
produce the publication constituted an illegal corporate “expenditure” under
FECA, the Commission investigated and determined that MCFL had violated
the law. When conciliation efforts failed, the FEC filed a complaint in federal
court seeking a civil penalty for the violation.27 Although the district court held
that MCFL’s payment to produce the publication was not an “expenditure” under federal law, the First Circuit held that the payment was an “expenditure.”28
The Supreme Court granted certiorari and agreed with MCFL’s assertion that
the FECA prohibition on corporate and union “expenditures” is subject to the
Buckley express advocacy narrowing construction, but rejected MCFL’s argument that its publication did not constitute express advocacy.29 The MCFL
Court reasoned that the corporation’s “publication not only urges voters to vote
for ‘pro-life’ candidates, but also identifies and provides photographs of specific candidates fitting that description.”30 The Court concluded that MCFL’s
publication went “beyond issue discussion to express electoral advocacy”31:
25.
26.
27.
28.
29.
30.
31.
479 U.S. 238 (1986).
Id. at 243-44.
Id. at 244-45.
Id. at 245.
Id. at 249.
Id.
Id. The Court nevertheless went on to hold that MCFL was entitled under the First
Amendment to an as-applied exemption from the FECA ban on corporate “expenditures” in
connection with federal elections due to three of the corporation’s characteristics: (1) it was
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“The fact that this message is marginally less direct than ‘Vote for Smith’ does
not change its essential nature.”32
The MCFL Court rejected the notion that Buckley’s express advocacy test
required “magic words” of advocacy to appear in the same phrase as a candidate’s name. “[M]arginally less direct” language could qualify as express advocacy. In this sense, the MCFL decision could be considered a small step away
from the strictest construction of Buckley’s express advocacy test. The FEC’s
next major independent expenditure enforcement action, however, would push
the boundaries of express advocacy much further.
During the week leading up to the 1980 presidential election, Harvey Furgatch paid approximately $25,000 to run an ad with the following text in The
New York Times and The Boston Globe:33
DON’T LET HIM DO IT.
The President of the United States continues degrading the electoral process
and lessening the prestige of the office.
It was evident months ago when his running mate outrageously suggested Ted
Kennedy was unpatriotic. The President remained silent.
And we let him.
It continued when the President himself accused Ronald Reagan of being unpatriotic.
And we let him do it again.
In recent weeks, Carter has tried to buy entire cities, the steel industry, the
auto industry, and others with public funds.
We are letting him do it.
He continues to cultivate the fears, not the hopes, of the voting public by suggesting the choice is between “peace and war,” “black or white,” “north or
south,” and “Jew vs. Christian.” His meanness of spirit is divisive and reckless
McCarthyism at its worst. And from a man who once asked, “Why Not the
Best?”
It is an attempt to hide his own record, or lack of it. If he succeeds the country
will be burdened with four more years of incoherencies, ineptness and illusion,
as he leaves a legacy of low-level campaigning.
DON’T LET HIM DO IT.34
In 1993, the FEC filed a complaint in federal district court alleging that
Furgatch had violated federal law by failing to file required independent exformed for the express purpose of promoting political ideas and cannot engage in business
activities; (2) it had no shareholders or other persons with a claim on its assets; and (3) it was
not established by a business corporation or union and did not accept contributions from
such entities. Id. at 263-64.
32. Id.
33. FEC v. Furgatch, 807 F.2d 857, 858-59 (9th Cir. 1987).
34. Id. at 858.
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penditure disclosure reports and include the required independent expenditure
“paid for by” disclaimer in the ad.35 The district court granted Furgatch’s motion to dismiss late in 1984, concluding that the ad did not expressly advocate
the defeat of Jimmy Carter and, therefore, did not constitute an “expenditure”
under federal law.36 The FEC appealed to the Ninth Circuit and, in January
1987, the court issued a decision viewing its task as “interpret[ing] and refin[ing]” Buckley’s express advocacy language.37
The Ninth Circuit began its analysis reasoning that:
A test requiring the magic words “elect,” “support,” etc., or their nearly perfect synonyms for a finding of express advocacy would preserve the First
Amendment right of unfettered expression only at the expense of eviscerating
the Federal Election Campaign Act, [because] “[i]ndependent” campaign
spenders working on behalf of candidates could remain just beyond the reach
of the Act by avoiding certain key words while conveying a message that is
unmistakably directed to the election or defeat of a named candidate.38
The court continued: “A proper understanding of the speaker’s message can
best be obtained by considering speech as a whole. Comprehension often requires inferences from the relation of one part of speech to another. The entirety may give a clear impression that is never succinctly stated in a single
phrase or sentence.”39
The court rejected Furgatch’s suggestion that it “isolate each sentence and
act as if it bears no relation to its neighbors” and, instead, recognized “that the
whole consists of its parts in relation to each other.”40 The court went on to
consider the relevance of context to its express advocacy analysis, noting that
context plays a significant role in the doctrines of subversive speech, “fighting
words,” libel, and speech in the workplace, but that “[w]hen the constitutional
and statutory standard is ‘express advocacy,’ . . . the weight that we give to the
context of speech declines considerably. Our concern here is with the clarity of
the communication rather than its harmful effects. Context remains a consideration, but an ancillary one, peripheral to the words themselves.”41 The court reasoned that “context cannot supply a meaning that is incompatible with, or simply unrelated to, the clear import of the words.”42 This issue—the degree to
which “context” may be considered when determining whether a given communication constitutes express advocacy—would prove to be a pivotal issue in
several future “express advocacy” court decisions, including the Supreme
35.
36.
37.
38.
39.
40.
41.
42.
Id. at 859.
Id. at 858.
Id. at 861.
Id. at 863 (emphasis added).
Id. at 863.
Id.
Id.
Id. at 864.
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Court’s decision twenty years later in WRTL.43
The Ninth Circuit in Furgatch concluded that:
[S]peech need not include any of the words listed in Buckley to be express advocacy under the Act, but it must, when read as a whole, and with limited reference to external events, be susceptible of no other reasonable interpretation
but as an exhortation to vote for or against a specific candidate. This standard
can be broken into three main components. First, even if it is not presented in
the clearest, most explicit language, speech is “express” for 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 clearly identified 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.
We emphasize that if any reasonable alternative reading of speech can be
suggested, it cannot be express advocacy subject to the Act’s disclosure requirements.44
The Ninth Circuit applied this standard to Mr. Furgatch’s ad and held that
the ad constituted express advocacy, stating that the court had “no doubt that
the ad asks the public to vote against Carter.”45
The Ninth Circuit’s decision in Furgatch marked a substantial departure
from the “magic words” interpretation of express advocacy that many believed
was required by the Buckley Court. Under Furgatch, “speech need not include
any of the words listed in Buckley to be express advocacy under the Act, but it
must, when read as a whole, and with limited reference to external events, be
susceptible of no other reasonable interpretation but as an exhortation to vote
for or against a specific candidate.”46
43. See, e.g., FEC v. Wis. Right to Life, 127 S. Ct. 2652, 2668-69 (2007); see also FEC
v. Christian Action Network, 894 F. Supp. 946, 958 (W.D. Va. 1995), aff’d per curiam, 92
F.3d 1178 (4th Cir. 1996).
44. Furgatch, 807 F.2d at 864 (emphasis added).
45. Id. The court reasoned:
The words we focus on are “don’t let him.” . . . In Furgatch’s advertisement we are presented with an express call to action, but no express indication of what action is appropriate. . . . Reasonable minds could not dispute that Furgatch’s advertisement urged readers to
vote against Jimmy Carter. This was the only action open to those who would not “let him do
it.” The reader could not sue President Carter for his indelicate remarks, or arrest him for his
transgressions. If Furgatch had been seeking impeachment, or some form of judicial or administrative action against Carter, his plea would have been to a different audience, in a different forum. If Jimmy Carter was degrading his office, as Furgatch claimed, the audience to
whom the ad was directed must vote him out of that office. If Jimmy Carter was attempting
to buy the election, or to win it by “hid[ing] his own record, or lack of it,” as Furgatch suggested, the only way to not let him do it was to give the election to someone else. Although
the ad may be evasively written, its meaning is clear.
Id. at 864-65.
46. Id. at 864 (emphasis added).
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II. FURGATCH’S BUMPY RIDE (1987-1997)
Throughout the decade beginning with the Ninth Circuit’s 1987 Furgatch
decision, disagreement among state and federal courts around the nation combined with disagreement among FEC Commissioners themselves regarding the
constitutionality of the Furgatch standard led to the FEC’s sporadic reliance on
the standard. By the end of the 1990s, the FEC had effectively abandoned the
Furgatch standard altogether.
Former FEC Commissioner Scott Thomas and his Executive Assistant
Jeffrey Bowman detailed the history of the FEC’s application of the express
advocacy standard during their tenure at the Commission in a 1998 article in
this journal.47 Thomas and Bowman, advocates of the Furgatch standard, discussed enforcement actions during the 1990s for which, though Thomas and
Bowman believed the communications at issue constituted express advocacy
under Furgatch, the Commission lacked the necessary four affirmative votes to
pursue alleged violations of law.
In Matter Under Review (MUR) 3376, for example, the Committee to ReElect Gerry Studds arranged and paid for ads, run in 1991 and 1992, featuring a
picture of Congressman Studds “speaking in a dynamic manner before a large,
attentive crowd.”48 Appearing above the picture were the words: “Congressman GERRY STUDDS”; below the picture were the words: “CARING –
FIGHTING – WINNING.”49 The ads lacked the “paid for by” disclaimer required by federal law to be included in express advocacy communications.50
Thomas and Bowman asserted that, if the Furgatch standard were applied,
“clearly the Studds advertisement [could] be ‘susceptible of no other reasonable
interpretation but as an exhortation to vote for . . . a specific candidate.’”51 The
Commission, however, split on whether the advertisement constituted express
advocacy, and without the necessary four affirmative votes to pursue the alleged violation of law, the Commission dismissed the matter.52
In 1994, a corporation named Americans for Tax Reform ran a radio ad in
the two days preceding and during the day of a congressional special election in
Kentucky between Republican candidate Ron Lewis and Democratic candidate
47. Scott E. Thomas & Jeffrey H. Bowman, Is Soft Money Here To Stay Under the
“Magic Words” Doctrine?, 10 STAN. L. & POL’Y REV. 33 (1998). Scott Thomas was an FEC
Commissioner from 1986 until 2006. Prior to his appointment as a commissioner, Thomas
had spent nearly a decade as an employee of the FEC, beginning his career at the FEC as a
staff attorney in 1977. Thomas is currently Of Counsel to Dickstein Shapiro LLP. See Scott
E. Thomas Extended Bio, http://www.dicksteinshapiro.com/people/detail.aspx?attorney=
d343b229-ba2c-4c11-8952-0307bd9bfa7b&view=longbio (last visited Apr. 1, 2008).
48. Thomas & Bowman, supra note 47, at 37.
49. Id.
50. Id.
51. Id. at 38.
52. Id. at 37.
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Joe Prather.53 A script of the ad read:
On Tuesday, May 24, Second District Kentuckians will choose who will be
their voice in the critical debates on health care reform in Washington. Bill
Clinton has put forward a plan that mandates costs on businesses, establishes
price controls that will lead to rationing, limits choices that health care consumers now enjoy, and, under many names and guises, raises taxes. Ron
Lewis has signed a pledge to vote against any such plan that adds up to more
government. But . . . Joe Prather won’t. So you need to call Joe Prather. You
need to call him now at (502) 765-2600 and urge him to support a pro-market,
pro-consumer health care reform . . . Because his vote could be critical, so is
your phone call. (502) 765-2600. A message paid for by Americans for Tax
Reform.54
As mentioned in the discussion of MCFL above, federal law prohibits corporations from making “expenditures” in connection with a federal election,
and the term “expenditure” in this context was construed by the MCFL Court to
include only payments for express advocacy. In the FEC’s consideration of
whether this ad constituted an illegal corporate express advocacy expenditure
(MUR 4204), then-Commissioner Thomas advocated application of the Furgatch standard. Thomas wrote: “The radio advertisement violated the Furgatch
standard because ‘when read as a whole . . . [the advertisement] is susceptible
of no other reasonable interpretation but as an exhortation to vote for or against
a specific candidate.’”55 Yet, again, there were not four votes at the FEC to find
express advocacy.56 According to Thomas, two of the commissioners opposing
an express advocacy finding would have found express advocacy “[o]nly if the
advertisement contained such magic words as ‘Vote against Joe Prather because he won’t sign the pledge. . . .’”57
The FEC’s wrestling match with the concept of express advocacy was occurring not only behind closed doors, in the context of confidential enforcement
actions, but also in public, with a series of notices of proposed rulemaking
(NPRMs) and public hearings on the subject between 1987 and 1992.58 The
FEC received thousands of written comments from the public in response to the
various NPRMs, and the proceedings culminated with the FEC’s promulgation
of a regulation defining “express advocacy” in 1995.59 Despite the conflict
among commissioners regarding application of the Furgatch express advocacy
standard in the context of enforcement actions, the rule adopted by the FEC in
53. Id. at 38.
54. Id. (alteration in original) (quoting General Counsel’s Report, MUR 3975, at 19
(FEC Apr. 6, 1995)).
55. Id. at 39.
56. Id. at 38.
57. Id.
58. Express Advocacy; Independent Expenditures; Corporate and Labor Organization
Expenditures, 60 Fed. Reg. 35,292, 35,292-93 (July 6, 1995) (to be codified at 11 C.F.R. pts.
100, 106, 109, 114).
59. Id. at 35,293.
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1995 included not only a “magic words” standard, but also a Furgatch standard. The Commission explained: “Generally, the new and amended rules contain the following changes . . . . They have been reworded to provide further
guidance on what types of communications constitute express advocacy of
clearly identified candidates, in accordance with the judicial interpretations
found in Buckley, MCFL, [and] Furgatch . . . .”60 The Commission further explained that the “definition of express advocacy . . . includes . . . the language
in the Buckley, MCFL and Furgatch opinions emphasizing the necessity for
communications to be susceptible to no other reasonable interpretation but as
encouraging actions to elect or defeat a specific candidate.”61
Subpart (a) of the FEC’s definition of “express advocacy” adopted in 1995,
which remains in effect today, is essentially the “magic words” standard as interpreted in MCFL, while subpart (b) is essentially the Furgatch standard.62
The FEC made clear that “[c]ommunications discussing or commenting on a
candidate’s character, qualifications, or accomplishments are considered express advocacy under new section 100.22(b) [the Furgatch-inspired prong] if,
in context, they have no other reasonable meaning than to encourage actions to
elect or defeat the candidate in question.”63
Soon after the FEC enacted its Furgatch-like regulatory definition of express advocacy, the regulation was challenged in court on constitutional
grounds. It must be noted, however, that the legal challenges to the FEC’s Furgatch-like express advocacy regulation were not the first opportunities for
courts around the nation to consider following or rejecting the Furgatch approach.
In fact, one week before the FEC’s adoption of its Furgatch-like express
60. Id.
61. Id. at 35,294.
62. The regulation reads:
Expressly advocating means any communication that—
(a) Uses phrases such as “vote for the President,” “reelect your Congressman,” “support
the Democratic nominee,” “cast your 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 ProChoice, “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) 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.
Id. at 35,304-05 (emphasis added); 11 C.F.R. § 100.22 (2007).
63. Express Advocacy; Independent Expenditures; Corporate and Labor Organization
Expenditures, 60 Fed. Reg. at 35,295.
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advocacy regulation, a federal district court issued an opinion in Federal Election Commission v. Christian Action Network,64 rejecting the FEC’s interpretation of Furgatch—though the court refrained from directly criticizing the Ninth
Circuit’s Furgatch decision. Christian Action Network was a civil enforcement
action brought by the FEC, alleging that the nonprofit corporation had violated
federal law by making express advocacy “expenditures” in connection with a
federal election.65 During the weeks leading up to the 1992 presidential election, Christian Action Network spent approximately $63,000 to produce several
television and print ads. One television ad, for example, a thirty second spot entitled “Clinton’s Vision for a Better America,” contained none of Buckley’s
“magic words” but instead combined dialogue regarding Bill Clinton’s alleged
support for “radical” homosexual causes with powerful imagery and music.66
The court began its analysis by discussing the concept of express advocacy
generally and included in its opinion a list of seven court decisions considering
the boundaries of express advocacy under Buckley.67 The court commented that
64. 894 F. Supp. 946 (W.D. Va. 1995), aff’d per curiam, 92 F.3d 1178 (4th Cir. 1996).
65. Id. at 947.
66. The court described this ad in detail:
It opens with a full-color picture of candidate Bill Clinton’s face superimposed upon an
American flag, which is blowing in the wind. Clinton is shown smiling and the ad appears to
be complimentary. However, as the narrator begins to describe Clinton’s alleged support for
“radical” homosexual causes, Clinton’s image dissolves into a black and white photographic
negative. The negative darkens Clinton’s eyes and mouth, giving the candidate a sinister and
threatening appearance. Simultaneously, the music accompanying the commercial changes
from a single high pitched tone to a lower octave.
The commercial then presents a series of pictures depicting advocates of homosexual
rights, apparently gay men and lesbians, demonstrating at a political march. While the narrator discusses the candidates’ alleged agenda for homosexuals, short captions paraphrasing
their positions are superimposed on the screen in front of the marchers. These images include: marchers carrying a banner saying “Libertarians for Gay and Lesbian Concerns” accompanied by the superimposed text “Job Quotas for Homosexuals”; the same banner accompanied by the superimposed text “Special Rights for Homosexuals”; two individuals with
their arms around each others shoulders and text saying “Homosexuals in the Armed
Forces”; and a man wearing a shirt which reads “Gay Fathers” with the text “Homosexuals
Adopting Children.”
As the scenes from the march continue, the narrator asks in rhetorical fashion, “Is this
your vision for a better America?” Thereafter, the image of the American flag reappears on
the screen, but without the superimposed image of candidate Clinton. At the same time, the
music changes back to the single high pitched tone. The narrator then states, “[f]or more information on traditional family values, contact the Christian Action Network.”
Id. at 948-49 (internal citations and footnotes omitted).
67. The district court in Christian Action Network stated:
In the nineteen years since the Supreme Court’s ruling in Buckley v. Valeo, the parameters of the “express advocacy” standard have been addressed by several federal courts in
a variety of circumstances. Faucher v. Federal Election Com., 928 F.2d 468 (1st Cir. [1991])
(pro-life voter guide); Federal Election Com. v. Furgatch, 807 F.2d 857 (9th Cir. [1987])
(newspaper advertisements criticizing President Carter); Federal Election Com. v. Central
Long Island Tax Reform Immediately Committee, 616 F.2d 45 (2nd Cir. 1980) (“Central
Long Island Tax Reform”) (bulletin criticizing voting record of local congressman); Federal
Election Com. v. Survival Education Fund, Inc., No. 89 Civ. 0347 (TPG), 1994 WL 9658
(S.D.N.Y. Jan. 12, 1994) (“SEFI”) (letters criticizing the Reagan Administration’s military
involvement in Central America); Federal Election Com. v. Colorado Republican Fed. Cam-
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“the vast majority of these courts have adopted a strict interpretation of the ‘express advocacy’ standard” and that the “one notable exception, on which the
FEC relies heavily in the instant case, is the Ninth Circuit’s decision in FEC v.
Furgatch.”68 The court detailed the Ninth Circuit’s analysis, but expressed no
opinion regarding the Furgatch standard and instead focused its attention on
the FEC.69 The court determined that the “Commission’s approach is . . .
flawed because it is based on a misreading of the Ninth Circuit’s decision in
Furgatch.”70 In short, the court asserted that the FEC had relied too heavily on
context—more heavily than the Ninth Circuit had permitted in its Furgatch decision.71
The Fourth Circuit summarily affirmed the district court’s decision in
Christian Action Network72 and then, one year later, elaborated on its affirmation of the district court’s decision in an appeal regarding the district court’s
award of attorney’s fees to Christian Action Network.73 The Fourth Circuit
adopted the district court’s approach—refraining from explicitly criticizing the
Ninth Circuit’s Furgatch decision and instead asserting that the FEC had misinterpreted Furgatch both in the Christian Action Network enforcement proceeding74 that had commenced before the FEC’s 1995 amendment of its regulation
defining “express advocacy” and in the regulation itself.75 The Fourth Circuit
insisted that “the entire premise of the [Furgatch] court’s analysis was that
words of advocacy such as those recited in footnote 52 [of Buckley] were required to support Commission jurisdiction over a given corporate expenditure.”76 Recall that the closest words in Mr. Furgatch’s ad to Buckley’s “magic
words” were “don’t let him do it,” while the call to action in Christian Action
Network’s ad was to “contact the Christian Action Network”—one advocating
paign Comm., 839 F. Supp. 1448 (D. Colo. 1993) (“Colorado Rep. C.C.”) (radio advertisement attacking Senate candidate’s alleged positions on defense spending and balanced
budget issues); Federal Election Com. v. National Organization for Women, 713 F. Supp.
428 (D.D.C. 1989) (“NOW”) (mailings attacking certain members of Congress for their political views in opposition to abortion rights and the ERA); Federal Election Com. v. American Federation of State, County & Municipal Employees, 471 F. Supp. 315 (D.D.C. 1979)
(“American Federation”) (Nixon-Ford poster distributed to union members criticizing the
Watergate pardon).
894 F. Supp. at 951 (parallel citations omitted).
68. Id. at 952.
69. Id. at 955.
70. Id. at 958.
71. Id.
72. FEC v. Christian Action Network, 92 F.3d 1178 (4th Cir. 1996) (per curiam)
(adopting district court opinion).
73. FEC v. Christian Action Network, 110 F.3d 1049 (4th Cir. 1997).
74. Id. at 1061-62 (“[T]he FEC’s position was based not only on a misreading of the
Ninth Circuit’s decision in Furgatch, but also on a profound misreading of the Supreme
Court’s decisions in both Buckley and MCFL.” (internal quotation marks omitted)).
75. Id. at 1054 n.5 (“Contrary to its assertions, the Commission’s regulatory definition
of ‘express advocacy’ does not parallel this [Furgatch] test”).
76. Id. at 1053.
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action with respect to a candidate, the other advocating action with respect to
the ad’s sponsor. The Fourth Circuit did, however, recognize that “Furgatch,
despite its narrow holding, does include broad dicta which can be read (or misread) to support the FEC’s expansive view of its authority,” but refused to
adopt such an expansive view.77 The Fourth Circuit’s decision in Christian Action Network was viewed by many as a rejection of the Furgatch standard or, at
the very least, a rejection of the FEC’s interpretation of that standard in its
regulation defining express advocacy.78
The first direct judicial review of the FEC’s Furgatch-like prong of its
regulatory definition of express advocacy came in Maine Right to Life Committee v. Federal Election Commission,79 where a nonprofit corporation sought a
declaratory judgment that the definition “is too broad, beyond the authority of
the FEC and unconstitutionally vague . . . .”80 Plaintiffs asserted that the regulation was unconstitutional on its face because the case did not involve any specific advertisement.81 The district court in Maine Right to Life Committee recognized that the Ninth Circuit in Furgatch had “enlarged . . . Buckley’s
definition of express advocacy,” and found it “obvious that subpart (b) of the
FEC regulations comes directly from this appellate language.”82 Plaintiffs in
Maine Right to Life “complain[ed] that Furgatch and the resulting regulation
[went] further than Buckley and Massachusetts Citizens for Life permit[ed].”83
The district court commented that “[i]f the Supreme Court had not decided
Buckley and Massachusetts Citizens for Life . . . , [it] might well uphold the
FEC’s subpart (b) definition of what should be covered.”84 But, of course, the
Supreme Court had decided Buckley and MCFL and the district court concluded that “Furgatch, the source of subpart (b), is precisely the type of communication that Buckley [and] Massachusetts Citizens for Life . . . would permit
and subpart (b) would prohibit.”85 The court rejected the reasoning of the Ninth
Circuit’s Furgatch decision, and held that subpart (b) of the FEC’s express advocacy definition “is contrary to [FECA] as the United States Supreme Court
and the First Circuit Court of Appeals have interpreted it and thus beyond the
power of the FEC.”86 The district court did not address the plaintiffs’ claim that
subpart (b) was void for vagueness. The First Circuit affirmed the district
court’s decision “for substantially the reasons set forth in the district court opin-
77.
78.
79.
80.
81.
82.
83.
84.
85.
86.
Id. at 1063.
See, e.g., Thomas & Bowman, supra note 47, at 33.
914 F. Supp. 8 (D. Me. 1995), aff’d per curiam, 98 F.3d 1 (1st Cir. 1996).
Id. at 9.
Id. at 10.
Id. at 11.
Id.
Id.
Id. at 12.
Id. at 13.
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ion.”87
The FEC received a Petition for Rulemaking in 1997, urging the FEC to
repeal subpart (b) of its express advocacy regulation in light of the First and
Fourth Circuits’ decisions.88 The Commission decided not to repeal subpart (b),
noting the split among the First, Fourth, and Ninth Circuits and the Commission’s continued belief that subpart (b) was constitutional, as well as the fact
the Commission was “free to adhere to its preferred interpretation [i.e., Furgatch] in all circuits that have not rejected that interpretation.”89
The First Circuit’s explicit rejection of the Furgatch standard and subpart
(b) of the FEC’s express advocacy regulation and the Fourth Circuit’s rejection
of the FEC’s interpretation of Furgatch were followed by other state and federal court decisions around the nation declining to follow Furgatch.90 The Fifth
Circuit, for example, in overturning a district court’s application of the Furgatch standard to interpret a Mississippi state campaign finance statute, opined
that “the Furgatch test is too vague and reaches too broad an array of speech to
be consistent with the First Amendment as interpreted in Buckley and
MCFL.”91 The Supreme Court of Washington likewise declined to follow Furgatch, stating: “[T]he court in Furgatch departed from Buckley when it concluded that context is relevant to determining whether a communication is express advocacy. . . . We disagree with this approach.” 92
The disagreement among courts, combined with disagreement among FEC
Commissioners regarding the Furgatch standard, led to only sporadic reliance
by the FEC on the Furgatch-like prong of the express advocacy regulation
throughout the 1990s. By the end of the decade, the FEC had effectively abandoned the Furgatch standard.
III. THE ABANDONMENT OF FURGATCH AND THE FLOOD OF
SOFT MONEY SHAM ISSUE ADS (1998-2002)
Foreseeing and lamenting the collapse of our nation’s Watergate-era campaign finance reforms with the abandonment of the Furgatch standard, then87. Me. Right to Life Comm., Inc. v. FEC, 98 F.3d 1, 1 (1st Cir. 1996) (per curiam).
88. See Notice of Disposition of Petition for Rulemaking, 63 Fed. Reg. 8363, 8363
(Feb. 19, 1998).
89. Id.
90. See, e.g., N.C. Right to Life v. Leake, 344 F.3d 418, 426 (4th Cir. 2003) (“Furthermore, the holding in Furgatch is contrary to the precedent of this court.”), vacated and
remanded by 541 U.S. 1007 (2004) (directing reconsideration in light of McConnell); Va.
Soc’y for Human Life v. FEC, 83 F. Supp. 2d 668 (E.D. Va. 2000); Kromko v. City of Tucson, 47 P.3d 1137 (Ariz. Ct. App. 2002); Governor Gray Davis Comm. v. Am. Taxpayers
Alliance, 102 Cal. App. 4th 449 (Ct. App. 2002); League of Women Voters of Colo. v.
Davidson, 23 P.3d 1266 (Colo. Ct. App. 2001).
91. U.S. Chamber of Commerce v. Moore, 288 F.3d 187, 194 (5th Cir. 2002).
92. Wash. State Republican Party v. Wash. State Pub. Disclosure Comm’n, 4 P.3d 808,
820-21 (Wash. 2000) (en banc).
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FEC Commissioner Scott Thomas and Jeffrey Bowman warned that the Supreme Court would need to weigh in on the matter again in order to prevent the
government’s compelling interests in regulating independent expenditures from
being “sacrificed at the magic words altar.”93 Their prediction proved to be correct. In the late 1990s, federal campaign finance restrictions on independent
expenditures did indeed collapse and soft money flooded the federal election
process. These laws remained largely ineffective until 2002-2003, when Congress and the Supreme Court stepped in.
Soft money candidate-specific sham issue advocacy erupted during the
presidential election campaign of 1995-1996. As two election scholars explained:
The Clinton campaign aired some advertising in 1995, praising Clinton’s
position on gun control. But the campaign hit on a more innovative strategy—
to use party soft money to run “issue advertisements” that did not specifically
call for the reelection of Clinton but that would serve to bolster his image. At
the urging of consultant Dick Morris, Clinton raised enough soft money to
fund an $18 million advertising campaign during the summer and fall of 1995.
One such ad charged that the “Dole-Gingrich” budget tried to cut Medicare,
but Clinton cut taxes for working families. Eventually, this kind of spending
topped $44 million. An FEC preliminary audit of the Clinton campaign held
that this party spending was really campaign spending and asked for a repayment of $7 million. Nevertheless, the Commission itself voted 6-0 that the
spending was issue advocacy and that no repayment was needed.94
Though the FEC’s audit staff recommended in 1998 that the Commission
deem the Party’s 1995-1996 payments for candidate-specific issue ads to have
been coordinated “expenditures,” which would have constituted illegal in-kind
contributions under federal law, a majority of the Commission declined to do
so.95
The success of the Clinton-DNC advertising strategy encouraged candidates, party committees and independent organizations to repeat the strategy for
the 2000 presidential election. According to the National Journal: “In 1995
President Clinton and the Democratic National Committee took early advertising to new levels. And in 1998, an FEC ruling on ‘issue ads’ threw open the
doors for others to follow suit. As a result, 1999 saw more ads airing earlier
93. Thomas & Bowman, supra note 47, at 45.
94. WESLEY JOE & CLYDE WILCOX, FINANCING THE 1996 ELECTION 50-51 (John C.
Green ed., 1999) (citations omitted). An FEC audit report includes findings and conclusions
on a large number of issues. After reviewing a draft of this article, former Commissioner
Thomas explained to me that, despite the characterization in the quoted passage of the
Commission’s 6-0 vote on the audit report as a 6-0 vote that the spending was not express
advocacy, the 6-0 vote does not accurately reflect the views of all Commissioners on this
matter. The Commission was in fact divided on the express advocacy issue—a fact that can
only be discerned by review of the various statements published by the Commissioners at the
time. The Commission nevertheless approved the audit report in its entirety by a 6-0 vote.
95. See AUDIT DIV., FED. ELECTION COMM’N, AGENDA DOC. NO. 98-85, REPORT OF THE
AUDIT DIVISION ON CLINTON/GORE ‘96 PRIMARY COMMITTEE, INC. 9-43 (1998).
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than ever before.”96 The flood gates were open and the rest is history.
The Supreme Court explained in its 2002 McConnell decision that, as a result of the Court’s 1976 Buckley decision, where the Court narrowly construed
the statutory definition of expenditure “to reach only funds used for communications that expressly advocate the election or defeat of a clearly identified
candidate,” the use or omission of Buckley’s “magic words” had become the
legal line separating “express advocacy” from “issue advocacy.”97 “Magic
words” express advocacy was regulated by the FEC, while so-called “issue advocacy” was not. Whereas political parties were required to pay for magic
words express advocacy with funds raised pursuant to FECA’s contribution
amount limits and source prohibitions, political parties were permitted by the
FEC to raise and spend unlimited “soft money” for so-called issue advertising.98 Similarly, corporations and labor unions were prohibited from spending
treasury funds on magic words express advocacy, but were permitted to spend
treasury funds on candidate-specific issue advertising.99 The McConnell Court
explained:
While the distinction between “issue” and express advocacy seemed neat
in theory, the two categories of advertisements proved functionally identical in
important respects. Both were used to advocate the election or defeat of
clearly identified federal candidates, even though the so-called issue ads eschewed the use of magic words. Little difference existed, for example, between an ad that urged viewers to “vote against Jane Doe” and one that condemned Jane Doe’s record on a particular issue before exhorting viewers to
“call Jane Doe and tell her what you think.” Indeed, campaign professionals
testified that the most effective campaign ads, like the most effective commercials for products such as Coca-Cola, should, and did, avoid the use of the
magic words. Moreover, the conclusion that such ads were specifically intended to affect election results was confirmed by the fact that almost all of
them aired in the 60 days immediately preceding a federal election. Corporations and unions spent hundreds of millions of dollars of their general funds to
pay for these ads, and those expenditures, like soft-money donations to the political parties, were unregulated under FECA. Indeed, the ads were attractive
to organizations and candidates precisely because they were beyond FECA’s
reach, enabling candidates and their parties to work closely with friendly interest groups to sponsor so-called issue ads when the candidates themselves
were running out of money.100
96. The Ads of 1999, NAT’L J., Dec. 23, 1999, http://nationaljournal.com/members/
adspotlight/1999/12/1220yearinreview.htm.
97. See McConnell v. FEC, 540 U.S. 93, 126 (2003).
98. Id.
99. Id.
100. McConnell, 540 U.S. at 126-28 (citations omitted) (footnotes omitted). The
McConnell Court noted that spending on candidate-specific issue ads run in close proximity
to federal elections had “climbed dramatically” during the decade preceding the Court’s
opinion, explaining:
In the 1996 election cycle, $135 to $150 million was spent on multiple broadcasts of
about 100 ads. In the next cycle (1997-1998), 77 organizations aired 423 ads at a total cost
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The Court’s hypothetical “Jane Doe” ad in this passage would reappear
four years later in the Court’s WRTL decision and remains a point of great controversy today among election lawyers—an issue discussed in greater detail in
Part VI of this Article.
By 2002, despite a longstanding federal statutory prohibition on corporate
and labor union spending in connection with federal elections, and a longstanding requirement that independent expenditures to influence federal elections be
disclosed to the public, the federal election system was awash in unlimited soft
money contributions to political parties and undisclosed corporation and union
political expenditures.
IV. BCRA, MCCONNELL, AND THE “FUNCTIONALLY MEANINGLESS”
MAGIC WORDS STANDARD (2002-2003)
In response to this flood of soft money sham issue ads in federal elections,
Congress enacted the Bipartisan Campaign Reform Act of 2002 (BCRA).101
Congress repudiated the ineffective “magic words” express advocacy test, enacting a broad new “electioneering communications” test to reign in spending
that had the purpose and effect of influencing candidate elections, but that
evaded regulation through avoidance of “magic words.” Congress defined
“electioneering communications” to encompass any broadcast, cable or satellite
communication referring to a clearly identified federal candidate and airing
within thirty days of a primary or sixty days of a general election, that targeted
the electorate of that candidate.102 Under BCRA, corporations and unions are
prohibited from paying for “electioneering communications,”103 and any person spending more than $10,000 in a calendar year on “electioneering communications” is required to file disclosure reports with the FEC.104
The new BCRA restrictions on broadcast ads were challenged in McConnell on the grounds that “Buckley drew a constitutionally mandated line between express advocacy and so-called issue advocacy and that speakers possess
an inviolable First Amendment right to engage in the latter category of
speech.”105 The Court flatly rejected this assertion, making clear that “the express advocacy limitation . . . was the product of statutory interpretation rather
than a constitutional command” and that the Buckley Court had not suggested
between $270 and $340 million. By the 2000 election, 130 groups spent over an estimated
$500 million on more than 1,100 different ads. Two out of every three dollars spent on issue
ads in the 2000 cycle were attributable to the two major parties and six major interest groups.
Id. at 128 n.20.
101. Bipartisan Campaign Finance Reform Act of 2002, Pub. L. No. 107-155, 116 Stat.
81.
102. McConnell, 540 U.S. at 189-90; see also BCRA § 201(a), 2 U.S.C. § 434(f)(3)(A)
(2008).
103. BCRA § 203(a), 2 U.S.C. § 441b(b)(2) (2008).
104. BCRA § 201(a), 2 U.S.C. § 434(f)(1) (2008).
105. McConnell, 540 U.S. at 190.
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that “a statute that was neither vague nor overbroad would be required to toe
the same express advocacy line.”106
The Court rejected the notion that the First Amendment “erects a rigid barrier between express advocacy and so-called issue advocacy” and explained
that such a notion “cannot be squared with [the Court’s] longstanding recognition that the presence or absence of magic words cannot meaningfully distinguish electioneering speech from a true issue ad.”107 The Court concluded that
“the unmistakable lesson from the record in this litigation, as all three judges on
the District Court agreed, is that Buckley’s magic-words requirement is functionally meaningless” and “has not aided the legislative effort to combat real or
apparent corruption.”108
The McConnell Court rejected the claim that BCRA’s “electioneering
communication” provisions were overbroad, reasoning that the “argument fails
to the extent that the issue ads broadcast during the thirty- and sixty-day periods preceding federal primary and general elections are the functional equivalent of express advocacy,” and finding that the “vast majority” of ads in the legislative record were the functional equivalent of “express advocacy.”109 On
these grounds, the McConnell Court upheld BCRA’s “electioneering communication” provisions against constitutional challenge. However, the Court’s language here begged the question whether such an overbreadth argument would
prevail with respect to ads that are not the “functional equivalent of express advocacy,” a question that would be answered in part four years later in WRTL.
V. THE FEC’S “POLITICAL COMMITTEE” CONCILIATION AGREEMENTS,
WRTL AND THE RESURRECTION OF FURGATCH (2004-2007)
In addition to establishing restrictions on “electioneering communications,”
BCRA also prohibited federal candidates, officeholders and party committees
from soliciting, receiving or spending soft money (i.e., funds not in compliance
with federal amount limits and source prohibitions).110 Prior to the passage of
BCRA, as explained above, federal candidates and officeholders were soliciting
soft money contributions—unlimited corporate, union and individual funds—
for party committees, which the party committees, in turn, were able to spend
on sham issue advocacy. Not surprisingly, with the candidate / party soft
money loophole and the sham issue ad loophole closed down by BCRA and
with the 2004 presidential election approaching, political players sought a new
way to funnel soft money into federal elections.
Though the McConnell decision made clear that the Constitution does not
106.
107.
108.
109.
110.
Id. at 191-92.
Id. at 193.
Id. at 193-94 (emphasis added).
Id. at 206 (emphasis added).
2 U.S.C. § 441i (2007).
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require a “magic words” standard for regulating independent expenditures, the
FEC gave no public indication following the McConnell decision that it was
considering resuming application of the Furgatch-like subpart (b) of its express
advocacy regulation.
As the 2004 presidential election heated up, a new soft money vehicle—the
so-called “527 organization”—roared onto the stage. Named for a section of the
federal tax code that establishes tax-exempt status for “political organizations,”
a “527 organization” is defined in tax law to mean a group “organized and operated primarily for the purpose of directly or indirectly accepting contributions
or making expenditures . . . for the function of influencing or attempting to influence the selection, nomination, election, or appointment of any individual to
any Federal, State or local public office.”111
Although the overwhelming majority of organizations claiming tax exemption under section 527 are registered as “political committees” at the local, state
or federal level, the term “527 organization” has become a short-hand means of
referring to 527 organizations not registered as political committees. The 527
issue boils down to the question of whether 527 organizations are required to
register as “political committees” which would be subject to disclosure requirements and applicable restrictions on the source and amount of contributions received. “Political committee” status, in turn, depends on a two-part test.
First, the Constitution, as interpreted by the Supreme Court in Buckley, limits
the application of “political committee” restrictions to organizations with a
“major purpose” of influencing elections.112 Second, “political committee”
status depends on such a “major purpose” organization meeting a particular jurisdiction’s statutory definition of “political committee.” Under federal law, for
example, “political committee” is defined to include any group of persons
“which receives contributions aggregating in excess of $1,000 during a calendar year or which makes expenditures aggregating in excess of $1,000 during a
calendar year.”113
The strategy of attorneys advising the so-called 527 organizations that hit
the federal election stage in 2004 was simple, but flawed. These attorneys understood that the FECA definition of the term “political committee” depends on
the statutory term “expenditure.” Further, these attorneys believed that the term
“expenditure” must be narrowly construed to include only express advocacy for
the purpose of determining “political committee” status. Given that the Furgatch-like subpart (b) of the FEC’s regulation defining “express advocacy” had
lain dormant for many years (although it had never been repealed by the FEC),
these attorneys presumed that so long as a 527 organization avoided using
“magic words,” the organization would not be making “expenditures.” Accordingly, the organization would not be required to register with the FEC as a “po-
111. 26 U.S.C. § 527(e)(1)-(2) (2008).
112. Buckley v. Valeo, 424 U.S. 1, 78-79 (1976).
113. 2 U.S.C. § 431(4)(A) (2008).
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litical committee” or to abide by contribution amount limits ($5,000 per calendar year)114 and source prohibitions (no corporation or union funding).115 Perhaps these organizations and their legal advisors also considered the worst case
scenario—that the FEC would apply subpart (b) of its express advocacy regulation, find that the organizations violated federal law and attempt to impose a
relatively small fine after the 2004 election was over—and decided the potential benefits of the new soft money strategy were worth the risks. Perhaps these
organizations also took faith in the FEC’s rejection of calls by several members
of Congress and campaign finance reform organizations to promulgate a new
regulation making clear that 527 organizations raising and spending money to
influence federal elections would be required by FECA to register as “political
committees.”116
A handful of 527 organizations took a gamble on this legal theory in 2004,
raising and spending hundreds of millions of dollars outside FECA’s contribution limit and corporate / union ban. Complaints were filed with the FEC
against many of these 527 organizations and against several 501(c)(4) organizations as well. Though it took the Commission more than two years to investigate and resolve any of the complaints, the Commission surprised many when
it announced in November 2006 that it had reached a settlement agreement with
the 501(c)(4) Sierra Club, Inc., whereby the Sierra Club agreed to pay a
$28,000 civil penalty in response to the FEC’s conclusion that a pamphlet produced by the organization in 2004 constituted express advocacy, citing not only
the subpart (a) “magic words” standard of the Commission’s express advocacy
regulation, but also the subpart (b) Furgatch standard.117 The FEC concluded
that Sierra Club’s pamphlet:
[P]rovided “in effect” an explicit directive to vote for Senator Kerry and Betty
Castor, because it contains language—“LET YOUR CONSCENCE BE
YOUR GUIDE . . . AND LET YOUR VOTE BE YOUR VOICE”—
exhorting readers to vote for the candidates clearly favored by the Sierra Club
as expressed through the checkmarks and accompanying narratives, see 11
114. 2 U.S.C. § 441a(a)(1)(C) (2008).
115. 2 U.S.C. § 441b(a) (2008).
116. The FEC contemplated such a rulemaking in March 2004. Political Committee
Status, 69 Fed. Reg. 11,736 (proposed Mar. 11, 2004) (to be codified at 11 C.F.R. pts. 100,
102, 104, 106, 114). Comments urging the Commission to promulgate a 527 rule were filed
in response to the rulemaking by BCRA’s principal sponsors (Senators McCain and Feingold
and Representatives Shays and Meehan), the Campaign Legal Center, Democracy 21, the
Center for Responsive Politics and many others. Written public comments submitted for the
rulemaking can found on the FEC’s Website. Fed. Election Comm’n, Comments on Political
Committee Status, http://www.fec.gov/pdf/nprm/political_comm_status/comments.shtml
(last visited Apr. 1, 2008). The Commission eventually concluded the rulemaking without
addressing the majority of issues pertaining to the “political committee” status of 527 organizations. Representatives Shays and Meehan then filed a civil lawsuit against the Commission for its failure to enact a 527 rule. Shays v. FEC, 511 F. Supp. 2d 19 (D.D.C. 2007).
117. In re Sierra Club, Inc., MUR 5634, §§ IV ¶ 11, VI (FEC Nov. 15, 2006) (conciliation agreement), available at http://eqs.nictusa.com/eqsdocs/00005815.pdf.
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C.F.R. § 100.22(a), and that the communication was unmistakable, unambiguous, and suggestive of only one meaning, and reasonable minds could not differ as to whether the pamphlet encourages readers to vote for Senator Kerry
and Betty Castor or encouraged some other kind of action. See 11 C.F.R. §
100.22(b). Accordingly, the Commission concludes that the “Conscience”
pamphlet expressly advocated the election of clearly identified candidates.118
The FEC’s use of the phrase “in effect” suggests its own lack of confidence
in its characterization of the pamphlet as subpart (a) “magic words” express ad-
118. Id. § IV ¶ 11 (emphasis added). The Conciliation Agreement provided a detailed
description of the pamphlet:
7. Prior to the November 2, 2004 general election, Respondent produced and distributed a pamphlet entitled “Let your Conscience be your Guide” (“Conscience”) containing
text and photographs, as described in Paragraphs 8 through 10 of this agreement.
8. The “Conscience” pamphlet prominently exhorts the reader to “LET YOUR
CONSCIENCE BE YOUR GUIDE …,” accompanied by pictures of gushing water, picturesque skies, abundant forests, and people enjoying nature. The heading of the interior of the
pamphlet exhorts the reader, “AND LET YOUR VOTE BE YOUR VOICE” (Emphasis in
the original).
9. Underneath that exhortation, the pamphlet compares the environmental records of
President Bush and Senator John Kerry and U.S. Senate candidates Mel Martinez and Betty
Castor through checkmarks and written narratives. For example, in the category of “Toxic
Waste Cleanup,” it describes Senator Kerry as a “leader on cleaning up toxic waste sites” and
states he co-sponsored legislation that would unburden taxpayers and “hold polluting companies responsible for paying to clean up abandoned toxic waste sites.” In contrast, the description of President Bush’s record on the same subject says “President Bush has refused to support the ‘polluter pays’ principle, which would require corporations to fund the cleanup of
abandoned toxic waste sites, including the 51 in Florida. Instead, he has required ordinary
taxpayers to shoulder the cleanup costs.” Similarly, under the subject of “Clean Air,” Senator
Kerry is described “support[ing] an amendment that would block President Bush’s change to
weaken the Clean Air Act,” and as co-sponsoring legislation “which would force old, polluting power plants to clean up.” In contrast, President Bush’s position on “Clean Air” is described as “weakening the law that requires power plants and other factories to install modern
pollution controls when their plants are changed in ways that increase pollution.” In each of
three categories, the pamphlet assigns a “checkmark symbol” in one or two boxes next to either one or both candidates; of the two candidates, only Senator Kerry receives checkmarks
in every box in all three categories (Toxic Waste Cleanup, Clean Air, and Clean Water),
whereas President Bush receives only one checkmark in a single category (Clean Air), and in
that category, there are two checkmarks for Senator Kerry.
10. To the right of the comparisons between Senator Kerry and President Bush, the
“Conscience” pamphlet compares the environmental records of U.S. Senate candidates from
Florida, Mel Martinez and Betty Castor, in three categories. Ms. Castor’s environmental record in all three categories is accompanied by a checkmark in all three boxes next to her position. In the “toxic waste cleanup” category, the pamphlet states “Castor supports reinstating
the ‘polluter pays’ principle to make corporate polluters, not U.S. taxpayers, pay to clean up
abandoned toxic waste sites.” In the “clean air” category, it states “Castor has pledged to address air pollution by placing caps on carbon dioxide, sulfur dioxide, nitrogen oxide, mercury
and other dangerous emissions.” Finally, Ms. Castor’s record in the “energy” category is described as supporting “a greater commitment to alternative energy, such as wind and solar
power and greater use of ‘green’ building practices.” In contrast, Mr. Martinez does not receive any checkmarks. In the “toxic waste cleanup” and “clean air” categories, Respondent
stated that for Mr. Martinez there was “no stance on record,” Mr. Martinez’s record in the
“energy” category is described as “support[ing] the Energy Policy Act of 2003, which gave
millions in subsidies to the oil and coal industries, but made minimal investments in clean alternative energy technologies.” The pamphlet concludes with: “Find out more about the candidates before you vote. Visit www.sierraclubvotes.org.”
Id. § IV ¶¶ 7-10.
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vocacy. Perhaps feeling emboldened by the McConnell Court’s acknowledgment that the “magic words” express advocacy standard is “functionally meaningless” and not required by the Constitution, the FEC for the first time in
many years relied on its Furgatch-like subpart (b) definition of express advocacy. The Commission correctly acknowledged that, regardless of whether or
not one believed the pamphlet’s use of “vote” as a noun was sufficient to meet
the “magic words” standard, the pamphlet was “unmistakable, unambiguous,
and suggestive of only one meaning,” and that “reasonable minds could not differ as to whether the pamphlet encourage[d] readers to vote for Senator Kerry
and Betty Castor or encouraged some other kind of action.”119
Subpart (b) made its next appearance one month later, when the FEC announced a settlement agreement with the 527 organization Swiftboat Veterans
and POWs for Truth (SwiftVets), whereby SwiftVets agreed to pay a $299,500
fine.120 The Commission concluded that SwiftVets made Furgatch-like express
advocacy expenditures in excess of $1,000 and violated federal law by failing
to register as a political committee, receiving contributions in excess of the applicable amount limit and receiving corporate contributions.121 According to
the conciliation agreement:
During the 2004 cycle, SwiftVets spent $19,304,642 for 12 television advertisements that were broadcast in the Presidential election battleground states of
Colorado, Florida, Minnesota, Nevada, New Mexico, Ohio, Pennsylvania,
Tennessee, Wisconsin, and West Virginia, as well as in the District of Columbia and on national cable television stations, such as CNN and the History
Channel. All of these advertisements attacked the character, qualifications,
and fitness for office of Senator John Kerry, the Democratic Presidential
nominee. Excerpts from several of these advertisements include:
Any Questions?
John Kerry has not been honest.
And he lacks the capacity to lead.
When the chips are down, you could not count on John Kerry.
...
I served with John Kerry . . . John Kerry cannot be trusted.
Why?
How can you expect our sons and daughters to follow you, when you condemned this [sic] fathers and grandfathers?
Why is this relevant?
Because character and honor matter. Especially in a time of war.
119. Id. § IV ¶ 11.
120. In re Swiftboat Veterans § POWs for Truth, MURs 5511 & 5525, § VI ¶ 1 (FEC
Dec. 13, 2006) (conciliation agreement), available at http://eqs.nictusa.com/eqsdocs/
000058ED.pdf.
121. Id. §§ IV ¶ 28, V.
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John Kerry cannot be trusted.
Never Forget (a/k/a Other Hand)
John Kerry gave aide [sic] and comfort to the enemy by advocating their negotiating points to our government.
Why is it relevant? Because John Kerry is asking us to trust him.
I will never forget John Kerry’s testimony. If we couldn’t trust John Kerry
then, how could we possibly trust him now?
Friends
Even before Jane Fonda went to Hanoi to meet with the enemy and mock
America, John Kerry secretly met with enemy leaders in Paris.
...
Eventually, Jane Fonda apologized for her activities, but John Kerry refuses
to.
In a time of war, can America trust a man who betrayed his country?
Medals
Symbols. They represent the best things about America.
Freedom . . . Valor . . . Sacrifice.
Symbols, like the heroes they represent, are meant to be respected.
Some didn’t share that respect . . . and turned their backs on their brothers.
...
How can the man who renounced his countries [sic] symbols now be
trusted?122
Making no mention of the subpart (a) “magic words” portion of its express
advocacy regulation, the Commission explained that these five ads constituted
express advocacy under the subpart (b) Furgatch standard because they “were
broadcast shortly before the 2004 Presidential Election, explicitly challenge
Senator Kerry’s ‘capacity to lead,’ assert that he cannot be ‘trusted,’ and ask
why citizens should be willing to ‘follow’ him as a leader.”123 The Commission cited the subpart (b) Furgatch standard and concluded that “speaking to
voters in this context, the advertisements unambiguously refer to Senator Kerry
as a Presidential candidate by discussing his character, fitness for office, and
capacity to lead, and have no other reasonable meaning than to encourage actions to defeat him.”124
The FEC further found that SwiftVets spent $1,120,881.09 for two mailers
that expressly advocated John Kerry’s defeat in the 2004 election under the
122. Id. § IV ¶ 15 (alteration in original).
123. Id. § IV ¶ 25.
124. Id.
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subpart (b) Furgatch standard.125
Finally, SwiftVets paid $39,140.91 to place a newspaper ad featuring photos of John Kerry and Jane Fonda, raising questions about Kerry’s “betrayal,”
and asking in bold type, “WHY IS THIS RELEVANT? Because in a time of
War—America needs a man that can be trusted to make the right decisions.
JOHN KERRY CANNOT BE TRUSTED.”126 The Commission concluded that
“here, the ‘man’ that ‘America needs’ ‘in a time of war’ can only mean ‘the
President,’ and the reader is to understand that Kerry cannot be trusted to make
the right decisions as the country’s president in a time of war.”127 The Commission concluded that the “only action a voter exposed to this advertisement
could take to ensure that America gets a ‘man that can be trusted to make the
right decisions’ is to vote against Kerry,”128 and that the communication was
subpart (b) express advocacy because it had “no other reasonable meaning than
to encourage actions to defeat Senator Kerry.” 129
In June 2007, the FEC announced another settlement agreement with a 527
organization, the National Association of Realtors (NAR), stating that the
Commission had concluded that “certain communications disseminated by
NAR 527 before the 2004 general election expressly advocated that recipients
125. The FEC’s investigation revealed that:
SwiftVets also spent $1,120,881.09 for mailers sent to households in Presidential election battleground states. The first mailer accused Senator Kerry of “dishonoring” and “demoralizing” his fellow soldiers and of “aiding and abetting the enemy” by secretly meeting
with North Vietnamese officials, and concluded,
Why is John Kerry’s Betrayal Relevant Today? Because character and trust are
essential to leadership, especially in a time of war. A man who so grossly distorts his
military record, who betrays his fellow soldiers, who endangers our soldiers and sailors
held captive, who secretly conspires with the enemy, who so brazenly mocks the symbols of sacrifice of our servicemen . . . all for his own personal political goals . . . has
neither the character nor the trust for such leadership. JOHN KERRY CANNOT BE
TRUSTED. If we couldn’t trust John Kerry then, how could we possibly trust him
now?
The second mailer listed “Four reasons why John Kerry is unfit for command,” claiming Kerry (1) “lied to the American people about his service record in Vietnam,” (2) “betrayed his fellow soldiers when he charged them with war crimes,” (3) “lost the respect of the
men he served with by throwing away his medals – America’s symbols of valor and sacrifice,” and (4) “betrayed America by assisting North Vietnamese Communists and extreme
leftist radicals.” This mailer concluded by stating, “We’re not debating Vietnam, it’s about
John Kerry’s character, he betrayed us in the past, how do we know he won’t do it again?”
Id. § IV ¶ 16. With respect to these two mailers, the Commission concluded:
Both mailers comment on Kerry’s character, qualifications and accomplishments and
the Commission concludes that, in context, they have no other reasonable meaning than to
encourage actions to defeat Senator Kerry. Senator Kerry, the recipient is told, lacks an essential requirement to lead in a time of war – he “cannot be trusted” and is “unfit for command.” Thus, the Commission concludes that the only manner in which the reader can act on
the message that “Kerry cannot be trusted” is to vote against him in the upcoming election.
See 11 C.F.R. § 100.22(b).
Id. § IV ¶ 26.
126. Id. § IV ¶ 27.
127. Id.
128. Id.
129. Id. § IV ¶ 28.
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vote for a clearly identified federal candidate within the meaning of 11 C.F.R.
§§ 100.22(a) and (b).”130 NAR agreed to pay a $78,000 fine in response to the
FEC’s conclusion that NAR had violated federal law by making express advocacy expenditures and failing to register as a “political committee.”131 Although the Commission did state explicitly that it relied on the subpart (b) Furgatch standard to conclude that NAR had made express advocacy expenditures,
the Commission did not specify which of NAR’s communications constituted
express advocacy under subpart (b). Nevertheless, the Commission’s descriptions of NAR’s communications make clear that NAR generally avoided using
any “magic words” of express advocacy, yet their communications were still
deemed express advocacy.132
130. In re Nat’l Assoc. of Realtors-527 Fund, MURs 5577 & 5620, § IV ¶ 13 (FEC
June 19, 2007) (conciliation agreement), available at http://eqs.sdrdc.com/eqsdocs/
00005DB9.pdf.
131. Id. § VI ¶ 1.
132. The FEC described NAR’s express advocacy communications as follows:
14. For example, in September and October 2004, NAR 527 mailed a four-page pamphlet to independent voters in selected areas throughout North Carolina at a cost of
$70,718.75 that the Commission concludes expressly advocated the election of Richard Burr
for Senate.
15. The first page of one four-page pamphlet contains the slogan “Richard Burr –
Building a Stronger North Carolina . . . One Neighborhood at a Time” superimposed on a
photo of a house. The second page has photos of a porch railing and an American flag waving from a house. The third page repeats the phrase “Richard Burr - Building a Stronger
North Carolina . . . One Neighborhood at a Time” in large type at the top of the page next to
a photo of Burr and above smaller photos of a family, a physician examining a child, money,
and a person working at a computer. Below the photos is text that describes Burr’s stances on
various issues, including health care, taxes, and home downpayment assistance, and identifies him as a member of Congress. The fourth page is headlined in large type “Richard Burr –
Works to Make North Carolina Stronger” and contains two photographs of families. Additional text on this page states, “For over a decade, Richard Burr has been a leader in the effort
to improve the quality of life in North Carolina. He has the experience to make North Carolina stronger.”
16. The pamphlet uses two slogans that focus on Burr, “Richard Burr – Building a
Stronger North Carolina . . . One Neighborhood at a Time,” and “Richard Burr – Works to
Make North Carolina Stronger.” The first page of the flyer contains the “Richard Burr –
Building a Stronger North Carolina” slogan as a stand-alone phrase and repeats the same language on page 3. The similar phrase, “Richard Burr – Works to Make North Carolina
Stronger,” appears as the title of page 4. Burr’s name in large type and font also headlines
pages 3 and 4. All of the praise for Burr’s record on the inside pages of the brochure begins
with the name “Richard Burr” – four additional times on page 3 alone.
17. NAR 527 disseminated three similar pamphlets in September and October 2004
that the Commission concludes expressly advocated the elections of Anne Northup for Kentucky’s Third Congressional District, Rick Renzi for Arizona’s First Congressional District,
and Johnny Isakson for Senate in Georgia. All thee pamphlets contain the same repeated use
of the candidate’s name in large, bold font, and slogans, such as “Anne Northup/Making the
American Dream a Reality in Kentucky,” “Rick Renzi/improving the Quality of Life in Arizona,” and “Congressman Johnny Isakson – Committed to the American Dream.” . . . The
Northrup pamphlet cost $36,625.13, the Renzi pamphlet cost $33,816.80, and the Isakson
pamphlet cost $52,502.25.
18. NAR 527 also disseminated newspaper advertisements that the Commission concludes expressly advocated the election of clearly identified federal candidates. For example,
NAR 527 disseminated two almost identical newspaper advertisements in October 2004, one
in Texas’s Third Congressional District, where Ruben Hinojosa was running for reelection
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In addition to these conciliation agreements, wherein the FEC explicitly
indicated that it relied on the subpart (b) Furgatch standard in determining that
the organizations made express advocacy expenditures, the FEC also entered
several other conciliation agreements wherein the Commission cited the subpart (b) express advocacy standard in its analysis, but did not state explicitly
whether it relied on the standard in making its determination of “political committee” status. For example, the 527 organization Progress for America Voter
Fund entered a conciliation agreement with the FEC in February 2007, agreeing
to pay a $750,000 fine for failing to register as a “political committee.”133 Although the agreement cites both subparts (a) and (b) of the express advocacy
regulation as the applicable legal standard, the agreement then goes on simply
to state that the Commission concluded “that certain television advertisements
run by PFA-VF before the 2004 General Election expressly advocated that recipients vote for, campaign for, or contribute to a clearly identified candidate.”134 Nevertheless, the ads seemingly lacked the “magic words” necessary
to qualify as subpart (a) express advocacy, so one might presume that the Commission applied the subpart (b) Furgatch standard.
Without a word of explanation, the FEC resurrected the Furgatch standard
and the second in Maryland’s Fifth Congressional District, where Steny Hoyer was seeking
reelection. The ads are headlined in large type with “SOME PROMISE. CONGRESSMAN
RUBEN HINOJOSA [STENY HOYER] DELIVERS.” Directly below are portrait-like photographs of the candidates, with the U.S. flag and law books behind them, with the slogan
“FIGHTING FOR THE AMERICAN DREAM.” Smaller-sized text describes their accomplishments on various issues such as Veterans’ benefits and identity theft. Toward the bottom
of the ad, in larger type is “OUR CONGRESSMAN RUBEN HINOJOSA [STENY HOYER]
. . . BECAUSE RESULTS DO MATTER.”
Id. § IV ¶¶ 14-18.
133. In re Progress for Am. Voter Fund, MUR 5487, § VII (FEC Feb. 28, 2007) (conciliation agreement), available at http://eqs.nictusa.com/eqsdocs/00005AA7.pdf.
134. Id. § IV ¶ 27. The relevant paragraphs read in full:
27. The Commission concludes that certain television advertisements run by PFA-VF
before the 2004 General Election expressly advocated that recipients vote for, campaign for,
or contribute to a clearly identified candidate. For example, “Veterans” was run in eight battleground states in September 2004, less than two months before the General Election, at a
total cost of $1.56 million.
“Veterans”
Four veterans from the frontlines of Iraq and Afghanistan. President Bush will be the
best man to lead us in the war against terror. President Bush sticks to his policies. I’d ask
Senator Kerry why would you vote to go to war but vote not to support troops over there. I
don’t think that Senator Kerry has what it takes. He doesn’t have the resolve. Progress for
America Voter Fund is responsible for the content of this message.
28. In addition, “Why do we fight?” was run in five battleground states in July 2004 at
a total cost of $521,524.
“Why do we fight?”
Why do we fight? Years of defense and intelligence cuts left us vulnerable. We fight
now because America is under attack. Positions are clear. A president who fights to defeat
terrorists before they can attack again. Or the nation’s most liberal senator with a 30-year record of supporting defense and intelligence cuts. The war is against terror. And President
Bush has the strength and courage to lead us to victory. Progress for America Voter Fund is
responsible for the content of this ad.
Id. § IV ¶¶ 27-28.
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in 2006, after abandoning it nearly a decade earlier. And, at the same time the
FEC was bringing Furgatch back to life behind the closed doors of its “political
committee” enforcement actions, WRTL’s legal challenge to BCRA’s “electioneering communication” provisions would provide the Supreme Court another opportunity to weigh in on the “express advocacy” debate. Recall that, in
McConnell, the Court considered whether BCRA’s “electioneering communication” provisions were facially overbroad and rejected the claim, reasoning
that the “argument fails to the extent that” ads meeting the statutory definition
of “express advocacy” are “the functional equivalent of express advocacy” and
finding that the “vast majority” of ads in the legislative record were the functional equivalent of “express advocacy.”135 The Court’s rejection of this facial
challenge did not preclude as-applied challenges, and before the ink of the
McConnell opinion had dried, an as-applied challenge was brought.136
In July 2004, Wisconsin Right to Life (WRTL), a corporation, began
broadcasting two radio ads that—if they were run during the thirty days preceding a primary or sixty days preceding a general election—would meet the statutory definition of “electioneering communication.” WRTL also produced a
similar TV commercial.137 As a corporation, WRTL would be prohibited from
135. McConnell v. FEC, 540 U.S. 93, 206 (2003).
136. In the early stages of the WRTL litigation, the FEC successfully argued to a fed-
eral district court that the Supreme Court’s McConnell decision did foreclose as-applied
challenges, but the Supreme Court overruled the district court, explaining:
The three-judge District Court denied the motion for a preliminary injunction and subsequently dismissed WRTL’s complaint in an unpublished opinion. We noted probable jurisdiction. Appellant asks us to reverse the judgment of the District Court because that court incorrectly read a footnote in our opinion in McConnell v. Federal Election Comm’n as
foreclosing any “as-applied” challenges to the prohibition on electioneering communications.
We agree with WRTL that the District Court misinterpreted the relevance of our “uphold[ing] all applications of the primary definition” of electioneering communications. Contrary to the understanding of the District Court, that footnote merely notes that because we
found BCRA’s primary definition of “electioneering communication” facially valid when
used with regard to BCRA’s disclosure and funding requirements, it was unnecessary to consider the constitutionality of the backup definition Congress provided. In upholding § 203
against a facial challenge, we did not purport to resolve future as-applied challenges.
Wis. Right to Life v. FEC, 546 U.S. 410, 411 (2006) (citations omitted). So ruling, the Court
remanded the case back to the district court, and, eventually, the case returned to the Supreme Court with the merits at issue the second time.
137. FEC v. Wis. Right to Life, 127 S. Ct. 2652, 2660-61 (2007). The transcript of one
of WRTL’s ads read:
PASTOR: And who gives this woman to be married to this man?
BRIDE’S FATHER: Well, as father of the bride, I certainly could. But instead, I’d like
to share a few tips on how to properly install drywall. Now you put the drywall up . . .
VOICE-OVER: Sometimes it’s just not fair to delay an important decision.
But in Washington it’s happening. A group of Senators is using the filibuster delay tactic to block federal judicial nominees from a simple “yes” or “no” vote. So qualified candidates don’t get a chance to serve.
It’s politics at work, causing gridlock and backing up some of our courts to a state of
emergency.
Contact Senators Feingold and Kohl and tell them to oppose the filibuster.
Visit: BeFair.org
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paying for the ads using treasury funds during the “electioneering communication” time periods and, instead, would be required to pay for the ads through its
political committee using individual contributions subject to amount limits.138
WRTL planned on running the three ads throughout August 2004 using corporate treasury funds, but knew that BCRA’s “electioneering communication”
time period preceding a September federal primary election would begin August 15—making corporate payment for the ads illegal.139
Believing that its ads were not the “functional equivalent” of express advocacy, WRTL filed suit against the FEC seeking a declaratory judgment that its
ads qualified for an as-applied exemption from BCRA’s “electioneering communication” restrictions and the case ended up before the Supreme Court.140
Chief Justice Roberts, writing for the Court, held that “a court should find that
an ad is the functional equivalent of express advocacy only if the ad is susceptible of no reasonable interpretation other than as an appeal to vote for or
against a specific candidate.”141 The Chief Justice went on to explain:
Under this test, WRTL’s three ads are plainly not the functional equivalent of
express advocacy. First, their content is consistent with that of a genuine issue
ad: The ads focus on a legislative issue, take a position on the issue, exhort the
public to adopt that position, and urge the public to contact public officials
with respect to the matter. Second, their content lacks indicia of express advocacy: The ads do not mention an election, candidacy, political party, or challenger; and they do not take a position on a candidate’s character, qualifications, or fitness for office.142
Chief Justice Roberts also specifically addressed the extent to which “context” can be considered under his test:
Given the standard we have adopted for determining whether an ad is the
“functional equivalent” of express advocacy, contextual factors of the sort invoked by appellants should seldom play a significant role in the inquiry.
Courts need not ignore basic background information that may be necessary to
put an ad in context—such as whether an ad “describes a legislative issue that
is either currently the subject of legislative scrutiny or likely to be the subject
of such scrutiny in the near future,” 466 F.Supp.2d, at 207—but the need to
consider such background should not become an excuse for discovery or a
broader inquiry of the sort we have just noted raises First Amendment concerns.143
Paid for by Wisconsin Right to Life (befair.org), which is responsible for the content of
this advertising and not authorized by any candidate or candidate’s committee.
Id. at 2660 (internal quotations omitted). The script of the second radio ad differs from the
first radio ad only in its lead-in. The TV ad was similar in substance and format to the radio
ads. Id. at 2660-61.
138. Id. at 2660-61.
139. Id. at 2661.
140. Id.
141. Id. at 2667.
142. Id.
143. Id. at 2669.
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By and large, and to the surprise of many observers of the Court including
the author, the Court’s “functional equivalent of express advocacy” test is
nearly identical to the much-disputed Furgatch test. Again, the Ninth Circuit in
Furgatch held that, in order to be considered express advocacy, speech:
[M]ust, when read as a whole, and with limited reference to external events,
be susceptible of no other reasonable interpretation but as an exhortation to
vote for or against a specific candidate. . . . Speech cannot be “express advocacy of the election or defeat of a clearly identified 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.144
Similarly, the Court in WRTL held that “a court should find that an ad is the
functional equivalent of express advocacy only if the ad is susceptible of no
reasonable interpretation other than as an appeal to vote for or against a specific candidate.”145
Further, with regard to consideration of contextual factors, the Ninth Circuit in Furgatch insisted that “[w]hen the constitutional and statutory standard
is ‘express advocacy,’ . . . the weight that we give to the context of speech declines considerably,”146 and that “context cannot supply a meaning that is incompatible with, or simply unrelated to, the clear import of the words.”147
Similarly, the WRTL Court insisted that, when determining whether an ad is the
“functional equivalent” of express advocacy, “contextual factors . . . should
seldom play a significant role in the inquiry,” though courts “need not ignore
basic background information that may be necessary to put an ad in context”—
such as whether an ad “describes a legislative issue that is either currently the
subject of legislative scrutiny or likely to be the subject of such scrutiny in the
near future.”148
VI. THE FUTURE OF THE FURGATCH / WRTL STANDARD
Given the striking similarities between the two, it is difficult to see the
WRTL Court’s “no reasonable interpretation other than as an appeal to vote for
or against a specific candidate” standard for defining the functional equivalent
of express advocacy as anything less than a resounding endorsement of the
constitutionality of the Furgatch “no other reasonable interpretation but as an
exhortation to vote for or against a specific candidate” express advocacy standard. The FEC should take heart that its re-employment of the 11 C.F.R. §
100.22(b) Furgatch-like standard for defining express advocacy is on solid legal ground. Further, the Commission should interpret the two standards as identical in application.
144.
145.
146.
147.
148.
FEC v. Furgatch, 807 F.2d 857, 864 (9th Cir. 1987) (emphasis added).
Wis. Right to Life, 127 S. Ct. at 2667 (emphasis added).
Furgatch, 807 F.2d at 863.
Id. at 864.
Wis. Right to Life, 127 S. Ct. at 2669.
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To be certain, Chief Justice Roberts’s standard in WRTL has already been
criticized on grounds similar to those that have troubled the Furgatch standard
through the years. Justice Scalia, in his concurring opinion in WRTL, directly
stated that the test offered in the “principal opinion” in the case is “impermissibly vague.”149 Chief Justice Roberts, however, responded to Justice Scalia’s
assertions—arguing that his test “affords protection unless an ad is susceptible
of no reasonable interpretation other than as an appeal to vote for or against a
specific candidate.”150 The Chief Justice continued:
It is why we emphasize that (1) there can be no free-ranging intent-and-effect
test; (2) there generally should be no discovery or inquiry into the sort of
“contextual” factors highlighted by the FEC and intervenors; (3) discussion of
issues cannot be banned merely because the issues might be relevant to an
election; and (4) in a debatable case, the tie is resolved in favor of protecting
speech.151
This all makes sense. But the Chief Justice goes on to assert in this footnote dicta that Justice Scalia’s vagueness concerns are further remedied by the
fact that the Chief Justice’s test “is only triggered if the speech meets the
brightline requirements of BCRA § 203 in the first place,”152—which makes
sense with respect to some of the brightline requirements of the definition of
“electioneering communication,” such as the requirement that an ad clearly
identify a candidate, but makes no sense with respect to the thirty- and sixtyday timeframes.
The thirty- and sixty-day timeframes arguably prevent BCRA’s “electioneering communication” provisions from being overbroad, but do nothing to alleviate vagueness that would exist in their absence. Put differently, an individual would clearly know whether a particular ad met the definition of
“electioneering communication” with or without the timeframes. Just as the
thirty- and sixty-day timeframes are unnecessary to bring clarity to the definition of “electioneering communication,” so too are the thirty- and sixty-day
timeframes unnecessary to bring clarity to Chief Justice Roberts’ “no reasonable interpretation other than as an appeal to vote for or against a specific candidate” standard.
Similarly, the FEC’s subpart (b) Furgatch-like express advocacy standard
does not require thirty- and sixty-day timeframes for the sake of clarity. Indeed,
such timeframes would do nothing to add clarity to the standard and would unnecessarily restrict the FEC’s efforts to effectively regulate express advocacy
expenditures to influence federal elections. Yet immediately after the Court’s
decision in WRTL, WRTL’s attorney filed a petition for rulemaking with the
FEC, arguing that the WRTL decision “requires” the Commission to repeal sub-
149.
150.
151.
152.
Id. at 2680.
Id. at 2669 n.7.
Id.
Id.
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part (b) of its express advocacy regulation.153 To the extent that the subpart (b)
standard and the WRTL standard are the same—and they should be treated as
such—repeal of subpart (b) would have the practical effect of adding thirty-and
sixty-day pre-election time limitations to the Commission’s regulation of express advocacy not containing so-called “magic words.” An argument that
WRTL “requires” this dramatic amendment of FEC regulations is nonsensical,
at best.
During the FEC’s Fall 2007 rulemaking proceeding to interpret the WRTL
decision, the Commission correctly noted that the WRTL “Court’s equating of
the ‘functional equivalent of express advocacy’ with communications that are
‘susceptible of no reasonable interpretation other than as an appeal to vote for
or against a specific candidate’ bears considerable resemblance to components
of the Commission’s definition of express advocacy” at 11 C.F.R. § 100.22, but
nevertheless went on to ask whether the WRTL decision “require[s] the Commission to revise or repeal any portion of its definition of express advocacy at
section 100.22.”154 The Commission received twenty-seven written comments
in response to its rulemaking notice and also heard oral testimony from fifteen
witnesses at the Commission’s rulemaking hearing.155 The Commission noted
in its “Explanation and Justification” for its final rule that “commenters were
divided as to what, if any, guidance” the WRTL decision provided the Commission with respect to the proper scope of the express advocacy definition.156 The
Commission “decided to leave open the issue” of the impact, if any, of the
WRTL decision on its express advocacy regulation “and to address the question
at a later time.”157 This statement from the Commission evinces an absence of
the necessary four votes among Commissioners to revise or repeal the “express
advocacy” regulation. This outcome seemingly reflects an understanding by at
least some of the Commissioners that the WRTL opinion considerably strengthens the argument that the Commission’s subpart (b) standard is constitutional—
and that the WRTL decision marks the resurrection of Furgatch.
The rule promulgated by the FEC to interpret the WRTL decision largely
mimics the “no reasonable interpretation” test articulated by the Court. Under
the FEC’s new rule, an ad that is materially indistinguishable from those at issue in the WRTL litigation—i.e., an ad with content “consistent with that of a
153. James Bopp, Jr., Gen. Counsel, James Madison Ctr. for Free Speech, Petition for
Rulemaking: Protecting “Genuine Issue Ads” From the “Electioneering Communication”
Prohibition & Repealing 11 C.F.R. § 100.22(b) (July 18, 2007), available at
http://jamesmadisoncenter.org/Finance/PetitionforFECRulemaking.pdf [hereinafter Petition
for Rulemaking].
154. Electioneering Communications, 72 Fed. Reg. 50,261, 50,263 (proposed Aug. 31,
2007) (to be codified at 11 C.F.R. pts. 100, 104, 114).
155. Electioneering Communications Final Rule, 72 Fed. Reg. 72,899, 72,900 (Dec.
26, 2007) (to be codified at 11 C.F.R. pts. 104, 114) (describing the background of the final
rule).
156. Id. at 72,912.
157. Id.
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genuine issue ad” and lacking “indicia of express advocacy”158—qualifies for
exemption from corporate/union funding restrictions within a regulatory “safe
harbor.”159 An ad with content not consistent with that of a genuine issue ad
and / or containing “indicia of express advocacy” is simply subject to the Commission’s judgment as to whether the ad is susceptible of a reasonable interpretation other than as an appeal to vote for or against a specific candidate.160 In
short, such an ad is subject to the same analysis the Commission has employed
in recent years when applying its subpart (b) express advocacy standard.
Despite the near identical nature of the Furgatch and WRTL express advocacy standards, it is likely that the FEC’s employment of its Furgatch-like
definition of express advocacy will be challenged in court in the not-too-distant
future. WRTL’s attorney has repeatedly stressed his belief that the WRTL decision necessitates the repeal of the Commission’s Furgatch-like express advocacy regulation.161
Another possible source of a legal challenge to Commission’s employment
of its subpart (b) express advocacy standard is a 527 organization—whether it
be one seeking a prophylactic declaratory judgment during the 2008 federal
election cycle or one of the several 527 organizations against whom complaints
are still pending at the FEC regarding alleged violations of campaign finance
laws during the 2004 and 2006 election cycles.
Regardless of the source of a legal challenge to the FEC’s Furgatch-like
definition of express advocacy, courts around the nation will be hard-pressed to
identify a legitimate basis on which to distinguish the Furgatch standard from
the clearly constitutional WRTL standard. In this respect, Furgatch should remain resurrected until and unless the Supreme Court declares the standard unconstitutional. And until the composition of the Court changes, Chief Justice
Roberts will likely provide the all-important fifth vote on the matter. Given the
willingness of dissenting Justices Souter, Stevens, Ginsburg and Breyer to uphold the broader campaign finance restrictions at issue in WRTL,162 they very
well might join Chief Justice Roberts in support of his WRTL standard if its
constitutionality is called into question and the alternative is no limit whatsoever on the campaign finance activities of corporations and labor unions. Justice Alito, who joined Chief Justice Roberts’s controlling opinion, has already
expressed his willingness to revisit the constitutionality of the test he en-
158.
159.
160.
161.
Wis. Right to Life, 127 S. Ct. 2652 at 2667.
See 11 C.F.R. § 114.15 (2007).
Id.
See Petition for Rulemaking, supra note 153; see also Letter from James Bopp,
Jr., Gen. Counsel, James Madison Ctr. for Free Speech, to Ron B. Katwan, Assistant Gen.
Counsel,
Fed.
Election
Comm’n
(Sept.
29,
2007),
available
at
http://www.fec.gov/pdf/nprm/electioneering_comm/2007/james_madison_center_for_free_s
peech_eccomment16.pdf.
162. See Wis. Right to Life, 127 S. Ct. at 2687 (Souter, J., dissenting).
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dorsed.163 Only time will tell if Chief Justice Roberts will cut and run from his
own WRTL standard and, in the process, abandon Furgatch once and for all.
163. See id. at 2674 (Alito, J., concurring) (“If it turns out that the implementation of
the as-applied standard set out in the principal opinion impermissibly chills political speech,
we will presumably be asked in future cases to reconsider the holding in McConnell v. Federal Election Comm’n that § 203 is facially constitutional.” (citations omitted)).