Eight Magic Words

In Buckley v. Valeo, the United States Supreme Court limited the reach of campaign finance laws to candidate and party committees, and other committees with a major purpose of electing candidates, or to speech that "expressly advocated" election or defeat of candidates. In footnote 52 of that opinion, the Court listed eight words or phrases as illustrative of speech that qualified as "express advocacy".

Importance of the eight magic words

Under the Buckley ruling, speakers that did not invoke any of the eight specific words and phrases of Buckley, or similar language expressly calling voters to vote for or against a candidate, were exempt from campaign finance laws.[1]

The eight words and phrases appearing in Buckley were "vote for," "elect," "support", "cast your ballot for", "Smith for Congress", "vote against", "defeat", "reject", or any variations thereof.[2][3]

That footnote was intended to provide examples of the types of things that would lead a reasonable person to conclude the speaker was advocating a particular candidate or ballot measure.[4]

The Court felt that limiting campaign finance laws to speech with such express advocacy was necessary to avoid a "chilling effect" on speech about political officeholders and issues that was protected under the First Amendment to the Constitution.

Hypothetical example

Suppose someone placed an advertisement that went something like this:

John Smith is a decent man who earned his education in the field and stands up for worker rights. Mary Jones received her undergraduate degree at Yale, and a law degree at Northwestern. She advocates eating vegetables. How do you feel about that?

Although the ad might influence potential voters for or against one of the candidates, it does not specifically advocate action to elect a candidate for office. As such, it falls outside of laws that restrict political speech intended to influence elections.

These type of ads became known colloquially as "issue ads".

Demagnification of the once magical words

Between 1996 and 2010 the number of "issue ads" that mentioned candidates without expressly advocating for a candidate grew rapidly.[5]

The ads can sway public opinion and so influence elections, without calling for the listener to vote for or against a candidate.[5][6]

In the Bipartisan Campaign Reform Act of 2003, Congress attempted to restrict issue ads by extending fundraising restrictions to any broadcast ad mentioning a candidate within 30 days of a primary or caucus, or 60 days of a general election. The Supreme Court upheld this restriction against a facial challenge in McConnell v. Federal Election Commission, downplaying the distinction between "express advocacy" and "issue advocacy" as often being "functionally meaningless".[5]

See also

References

  1. ↑ Michelle Robinson, "Section 3.1 - Campaign finance, Subsection 3.1.1 Federal law, Glossary of term", Michael E. Moritz College of Law, Ohio State University, referenced February 16, 2012
  2. ↑ "Case No. 00-60779", U.S. Fifth Circuit Court of Appeals, April 15, 2002
  3. ↑ Smith, Craig R. (2003). "Buckley v. Valeo". In Parker, Richard A. (ed.). Free Speech on Trial: Communication Perspectives on Landmark Supreme Court Decisions. Tuscaloosa, AL: University of Alabama Press. pp. 203–217. ISBN 0-8173-1301-X.
  4. ↑ Governor’s Blue-Ribbon Commission on campaign finance reform for State of Wisconsin, Final Report, Section 5. Level the playing field, Promoting freedom of speech, paragraph 3-6, Chairman Donald F. Kettl, May 1997 Archived December 9, 2011, at the Wayback Machine.
  5. 1 2 3 Albert L. May, "Swift boat Vets in 2004: Press coverage of an independent campaign", First Amendment Law Review, University of North Carolina School of Law, Vol. 4, 2005, page 75, paragraph 1. Archived November 11, 2011, at the Wayback Machine.
  6. ↑ Marcus Baram, "Wyly Brothers Gave Millions To Over 200 Republican Candidates", The Huffington Post, July 30, 2010
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