Wisconsin Right to Life and the resurrection of Furgatch.

• Author: Ryan, Paul S.
• Position: Symposium: The Law of Lobbying

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. Furgatch (6) that speech could be deemed express advocacy when it is "susceptible of no other reasonable interpretation 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 equivalent" 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.

1. FROM BUCKLEY TO MCFL TO FURGA TCH (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 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 "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...