“Express Advocacy at 50,” by Allison R. Hayward

From an Institute for Free Speech symposium on the 50th anniversary of Buckley, which I’ve been cross-posting; this is by Allison R. Hayward, who is now a Board member of the Foundation for Individual Rights and Expression (FIRE), and has served as the Head of Case Selection for the Facebook Oversight Board, Commissioner on the California Fair Political Practices Commission, Co-Chair of the Board of the Office of Congressional Ethics, and Vice President of Policy at the Center for Competitive Politics (now the Institute for Free Speech):

Pity (for a second) the Supreme Court in Buckley v. Valeo. Presented with a multifaceted challenge to the ambitious and bloated 1974 amendments to the Federal Elections Campaign Act (FECA 1974), the Justices heard oral arguments on November 10, then met and corresponded over the 1975 holiday season to produce a decision that would land well before the 1976 election. This statute raised constitutional issues beyond its First Amendment implications, but I’ll focus on its speech-restrictive aspects.

One key Buckley holding is the express advocacy standard. Briefly, express advocacy was Buckley‘s interpretation of the FECA 1974 provision limiting independent expenditures to $1,000 per year. The Court observed that the statute’s description of such an expenditure as “relative to a clearly identified candidate” was unconstitutionally vague. As a fix, the Court interpreted the phrase to reach “only to expenditures for communications that in express terms advocate the election or defeat of a clearly identified candidate for federal office.” Helpfully, the Court added in a footnote (likely at the suggestion of Justice Brennan) “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.” This litany has been derisively called “magic words” by detractors. It was obviously a refinement to the statute made by judges—not legislators.

The Court interpreted the clause to save it from unconstitutional vagueness, but then held that the $1,000 independent expenditure limit was itself unconstitutional. In part, this was because the narrowing construction made the limit ineffective. That might prompt someone to wonder whether the Court’s redrafting of the statute (as opposed to declaring it unconstitutionally vague and leaving the wordsmithing to Congress) was sound. But such restraint would have thrown key provisions of campaign law into flux for the 1976 election. Yes, the Court should resist the temptation to write law. In practice, however, the Court provided the answer that political actors needed in January 1976.

Did “express advocacy” apply only to a now moot expenditure limit? Not so fast. “Expenditures” also trigger reporting requirements. The definition needed narrowing there, too. For spenders who are not political committees or candidates, the Court affirmed FECA’s independent expenditure reporting requirements, but only if limited to expenditures containing express advocacy.

I would hazard to guess that were one judge writing the Buckley opinion, a key provision would not have been articulated in a section abrogating a law, then bootstrapped into another section upholding a different law. (Justice Potter Stewart wrote the draft section dealing with limits, Justice Lewis Powell wrote the section dealing with disclosure.) It’s weird, but here we are.

And we aren’t finished with “expenditures” yet! Express advocacy also comes into play when evaluating whether independent expenditures are “coordinated” with a candidate or political party. The Court in Buckley envisioned a bipolar world where an expenditure was “independent” of a campaign or made in “coordination.” Experience teaches us that “coordinating” is not a dichotomy but a spectrum that may include contacts, back-and-forth communications, and timing.

Buckley left a gap. What are the constitutional issues at play when the government begins to inquire of an “independent” group’s contacts and connections with a campaign? Should there be hard-line limits analogous to express advocacy to narrow the law’s application and protect constitutional rights? These issues, not resolved in Buckley, remain troublesome today.

Political reformers criticized express advocacy especially vigorously back in the day when corporate and labor organizations were prohibited from making “expenditures.” Critics of these entities wanted the law (and its penalties) to suppress as much of that activity as possible—injecting temporal and contextual elements into the definition that the Court had seemingly rejected. Regulatory mission creep on the Federal Election Commission’s behalf didn’t help.

After Citizens United, and after political activists realized which among these prohibited sources were doing what (“Our friends can make expenditures too! Cool!”), pressure to loosen the express advocacy standard has eased (not disappeared, of course, but eased). Express advocacy still matters: The reporting requirements remain, as does the treatment of coordinated expenditures as contributions subject to limits and reporting requirements of their own.

Moving away from these specifics, we should take a minute to ask several questions: Is it constitutional for federal law to require disclosure of independent expenditures by all non-political committee spenders? Is the express advocacy standard the right line to draw, if such a law is justified? Should the threshold at which reporting kicks in be subject to higher constitutional scrutiny? What constitutional protections apply to groups making expenditures when the government seeks to investigate coordination?

Buckley addressed independent expenditure disclosure generally – that was a question before it. We can dig deeper and think about where hazards might actually exist in campaign funding and what government interest is served by disclosure. It is hard to argue in 2026 that an independent expenditure by anyone of over $250, as the law mandates, $1,000, or even $10,000 could pose a threat of corruption in a federal election. Must the public nonetheless know about it? An independent expenditure of some even larger amount might raise concerns about corruption (or might not). When the person making the expenditure is a government contractor, maybe the concerns are more acute. Foreign entity spenders are banned, and our government’s interest in enforcing that ban may be significant enough to burden citizens’ constitutionally protected activities with reporting requirements, threats of penalties, and compliance expenses. I believe it makes sense to move away from restrictions on content alone toward those tailored to address the different corruption risks presented by different actors—at thresholds beyond the trivial.

Similarly, we should rethink how “coordination” is defined and take seriously the burdens coordination enforcement places on political actors. The law should not require the speaker to prove its activity was sanitized from exposure to a campaign’s research or priorities. Moreover, independence should be identified with clear, easy-to-identify rules — vagueness here is just as unconstitutional as elsewhere. Is the “independent” speaker an agent of the campaign? Okay, coordination. Beyond that? Hmm. In any case, crafting a simple, clear, but not overinclusive coordination rule would be good work for the Federal Election Commission to do. As an aside, if contribution limits themselves are set at higher thresholds and covered fewer actors (as suggested above), the pressure “coordination” puts on political speech would lessen.

FECA isn’t the only impediment to political speech in federal elections. The tax treatment of nonprofit entities raises its own set of constitutional issues that remain unresolved. Presently, the IRS’s standards for what counts as political activity, and where the lines are drawn, are quite different from those in the FECA and addressed in Buckley. Last fall, a federal judge ruled in Freedom Path v. IRS that the rules governing social welfare (501(c)(4) groups) “transgress the heightened vagueness standard applicable to civil regulations, including tax-exemption regulations, that affect speech covered by the First Amendment.”

Still, the courts have often been more deferential to the government in the tax context in tolerating broad and vague standards that would be unconstitutional in the campaign finance arena. The Court has reasoned that groups are not entitled to the “benefit” of a tax exemption, so limiting the political activity of nonprofits is less constitutionally suspect.

It is, frankly, long past time to rethink the approach that holds tax rules can restrict protected speech. Lower court rulings like Freedom Path move in the right direction, but don’t settle the matter. The Court in Buckley rejected arguments that the regulation of money affected property, not speech. To declare that a social welfare organization may not engage in a broad range of political activity — or lose its tax status (which effectively means disbanding) — directly burdens the use of their finances to speak about politics and, beyond fees and fines for violations, poses an existential threat. What is the compelling interest that justifies this? I doubt there is one.