Express advocacy under the first amendment

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The Supreme Court has generally affirmed the constitutionality of campaign disclosure requirements. In Buckley v. Valeo , the Court identified three governmental interests justifying Federal Election Campaign Act (FECA) disclosure requirements.1 Footnote
See Buckley , 424 U.S. at 66–68 . First, the Court determined that disclosure provides the electorate with information as to the source of campaign money, how it is spent, and “the interests to which a candidate is most likely to be responsive” —an informational interest.2 Footnote
Id. at 66–67 . Second, the Court stated that disclosure serves to deter corruption and its appearance by uncovering large contributions and expenditures “to the light of publicity,” observing that with this information, voters are better able to detect illicit “post-election special favors” by an officeholder in exchange for the contributions.3 Footnote
Id. at 67 . Third, the Court identified disclosure requirements as an essential method of detecting violations for referral to law enforcement.4 Footnote
See id. at 66–68 . In upholding the constitutionality of FECA’s disclosure requirements for independent expenditures, the Court determined that so long as they encompass only funds used for express advocacy communications, the requirement is constitutional.5 Footnote
See id. at 79–80 . ( “[W]hen the maker of the expenditure 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 . . . is not impermissibly broad, we construe ‘expenditure’ . . . 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.” ). Likewise, in McConnell v. FEC , rejecting a facial challenge to enhanced disclosure requirements, the Court observed that the Buckley ruling distinguished between express advocacy and issue advocacy for the purposes of statutory construction, not constitutional command, and therefore, the First Amendment did not require creating “a rigid barrier” between the two in this case.6 Footnote
Id. at 193, 201–02 . In other words, the Court determined, because electioneering communications are intended to influence an election, the absence of “magic words” of express advocacy does not obviate the government’s interest in requiring disclosure of such ads in order to combat corruption or its appearance.7 Footnote
Id. at 193–94 .

Expanding on its holding in Buckley , in subsequent campaign finance disclosure cases, the balancing of interests has tipped in favor of the constitutionality of disclosure requirements under the First Amendment. In Citizens United v. FEC , the Court upheld FECA’s disclosure requirements for electioneering communications as applied to a political documentary and broadcast advertisements promoting it.8 Footnote
See Citizens United , 558 U.S. at 366–371 . The Court determined that while they may burden the ability to speak, disclosure requirements “impose no ceiling on campaign-related activities,” and “do not prevent anyone from speaking.” 9 Footnote
Id. at 366 (quoting Buckley , 424 U.S. at 64) . Accordingly, the Court evaluated the requirements under a standard of “exacting scrutiny,” a less-rigorous standard than the “strict scrutiny” standard the Court has used to evaluate restrictions on campaign expenditures.10 Footnote
See id. at 366–67 . Exacting scrutiny requires a “substantial relation” between the disclosure requirement and a “sufficiently important” government interest, the Court announced.11 Footnote
Id. The Court expressly rejected the argument that the scope of FECA’s disclosure requirements for electioneering communications must be limited to speech that is express advocacy, or the “functional equivalent of express advocacy.” Id. at 369–370 . See also Indep. Inst. v. FEC, 216 F. Supp. 3d 176, 189 (D.D.C. 2016) , summ. aff’d, Indep. Inst. v. FEC , No. 16–743 (U.S. Feb. 27, 2017) (summarily affirming a three-judge federal district court ruling that upheld the constitutionality of FECA’s disclosure requirements for electioneering communications, after determining that the First Amendment does not require limiting disclosure requirements to speech that is the functional equivalent of express advocacy). Further, in Doe v. Reed , the Court upheld the constitutionality of a Washington State public records law.12 Footnote
561 U.S. 186 (2010) . Categorizing the statute as a disclosure requirement and, therefore, “not a prohibition of speech,” the Court evaluated the law under the standard of exacting scrutiny.13 Footnote
Id. at 196 . The Court determined that the law was substantially related to the governmental interest of safeguarding the integrity of the electoral process and announced that public disclosure “promotes transparency and accountability in the electoral process to an extent other measures cannot.” 14 Footnote
Id. at 199 . See also, Americans for Prosperity Found. v. Bonta , No. 19–251, slip op. at 2, 11 (U.S. July 1, 2021) (subjecting a California disclosure law to an exacting scrutiny standard that requires a “narrow tailoring” to a sufficiently important governmental interest asserted; while not a campaign finance case, the ruling may have consequences for the constitutionality of campaign finance disclosure requirements going forward).

Similar to disclosure requirements, the Supreme Court has upheld the constitutionality under the First Amendment of campaign finance disclaimer requirements.15 Footnote
Although FECA does not contain the term “disclaimer,” the law specifies the content of attribution statements to be included in certain communications, which are known as disclaimer requirements. See, e.g., Advertising and Disclaimers , FEC , https://www.fec.gov/help-candidates-and-committees/making-disbursements/advertising/ (last visited Dec. 29, 2021). In McConnell v FEC , the Supreme Court upheld the facial validity of the FECA disclaimer requirements, as amended by Bipartisan Campaign Reform Act (BCRA).16 Footnote
See McConnell , 540 U.S. at 230–31 . Specifically, the Court determined that the FECA disclaimer requirement “bear[ ] a sufficient relationship to the important governmental interest of ‘shedding the light of publicity on campaign financing.’” 17 Footnote
Id. at 231 . Revisiting the issue in Citizens United , the Court upheld the disclaimer requirement in BCRA as applied to a political documentary and the broadcast advertisements that an organization planned to run promoting the movie.18 Footnote
See Citizens United , 558 U.S. at 367 . According to the Court, while they may burden the ability to speak, like disclosure requirements, disclaimer requirements “impose no ceiling on campaign-related activities,” and “do not prevent anyone from speaking.” 19 Footnote
Id. at 366 .

Footnotes 1 See Buckley , 424 U.S. at 66–68 . 2 Id. at 66–67 . 3 Id. at 67 . 4 See id. at 66–68 . 5 See id. at 79–80 . ( “[W]hen the maker of the expenditure 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 . . . is not impermissibly broad, we construe ‘expenditure’ . . . 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.” ). 6 Id. at 193, 201–02 . 7 Id. at 193–94 . 8 See Citizens United , 558 U.S. at 366–371 . 9 Id. at 366 (quoting Buckley , 424 U.S. at 64) . 10 See id. at 366–67 . 11 Id. The Court expressly rejected the argument that the scope of FECA’s disclosure requirements for electioneering communications must be limited to speech that is express advocacy, or the “functional equivalent of express advocacy.” Id. at 369–370 . See also Indep. Inst. v. FEC, 216 F. Supp. 3d 176, 189 (D.D.C. 2016) , summ. aff’d, Indep. Inst. v. FEC , No. 16–743 (U.S. Feb. 27, 2017) (summarily affirming a three-judge federal district court ruling that upheld the constitutionality of FECA’s disclosure requirements for electioneering communications, after determining that the First Amendment does not require limiting disclosure requirements to speech that is the functional equivalent of express advocacy). 12 561 U.S. 186 (2010) . 13 Id. at 196 . 14 Id. at 199 . See also, Americans for Prosperity Found. v. Bonta , No. 19–251, slip op. at 2, 11 (U.S. July 1, 2021) (subjecting a California disclosure law to an exacting scrutiny standard that requires a “narrow tailoring” to a sufficiently important governmental interest asserted; while not a campaign finance case, the ruling may have consequences for the constitutionality of campaign finance disclosure requirements going forward). 15 Although FECA does not contain the term “disclaimer,” the law specifies the content of attribution statements to be included in certain communications, which are known as disclaimer requirements. See, e.g., Advertising and Disclaimers , FEC , https://www.fec.gov/help-candidates-and-committees/making-disbursements/advertising/ (last visited Dec. 29, 2021). 16 See McConnell , 540 U.S. at 230–31 . 17 Id. at 231 . 18 See Citizens United , 558 U.S. at 367 . 19 Id. at 366 .