Issue Advertising
In Buckley we construed FECA’s disclosure and
reporting requirements, as well as its expenditure
limitations, “to reach only funds used for communications
that expressly advocate the election or defeat of a clearly
identified candidate.” 424 U.S., at 80. As a result of that
strict reading of the statute, the use or omission of “magic
words” such as “Elect John Smith” or “Vote Against Jane
Doe” marked a bright statutory line separating “express
advocacy” from “issue advocacy.” See id., at 44, n.52.
Express advocacy was subject to FECA’s limitations and
could be financed only using hard money. The political
parties, in other words, could not use soft money to sponsor
ads that used any magic words, and corporations and unions
could not fund such ads out of their general treasuries. Socalled issue ads, on the other hand, not only could be financed
with soft money, but could be aired without disclosing the
identity of, or any other information about, their sponsors.
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 socalled 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
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