April 20, 2011
Footnote of the Day: Express Advocacy's Magic Words
Footnote 52 in Buckley v. Valeo, 424 US 1, 44 (1976) is oft-cited for its "magic words" articulating advocacy
in the context of campaign financing:
This construction would restrict the application of § 608(e)(1) 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."
As footnote 8 of Justice Stevens' dissenting opinion in Citizens United, explains, "If there was ever any significant uncertainty about what counts as the functionalequivalent of express advocacy, there has been little doubt about what counts as express advocacy since the “magic words” test of Buckley v. Valeo, 424 U. S. 1, 44, n. 52 (1976) (per curiam)." 558 U.S. at ____ (2010), Dissenting Opinion at 11.
For an interesting discussion of the addition of the "magic words" of footnote 52 in Buckley v. Valeo, Professor Richard Hasen's The Untold Drafting History of Buckley v. Valeo, available on ssn, is illuminating.
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I know about the Advocacy's Magic Words, Finance law has distinguished between interest group express advocacy and issue advocacy. The Federal Election Commission only regulates interest group express advocacy, or independent expenditures.
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