Magic Words and the Myth of Certainty

Abstract

387 IN Buckley v. Valeo1 the Supreme Court decided that the government had a compelling interest that justified Congress’ decision to both regulate and require public disclosure of the sources of funding for communications that expressly advocate the election or defeat of a candidate. But the Court found that, for issue advocacy, as opposed to express candidate advocacy, government regulation was incompatible with First Amendment free speech rights. This constitutional distinction necessitated that the Court develop a test for distinguishing between regulable electioneering speech2 and protected issue advocacy. The Court’s solution, at the time, was what came to be known as the “magic words” test. Communications that used “express” words of advocacy, such as “vote for,” “vote against,” “elect,” “defeat,” and the like, were considered express advocacy and subject to government regulation. Communications that lacked these “magic words” or synonymous phrases were deemed to be “issue advocacy,” regardless of how blatantly the communications otherwise favored or opposed a candidate. The Court in Buckley acknowledged that this magic words test would be easy to evade, but it concluded that there was significant value in adopting a test that would allow speakers to know with certainty whether or not their political speech would be subject to government regulation. Thus, in adopting the magic words test, the Court was intentionally erring on the side of providing certainty for speakers, rather than more accurately distinguishing between electioneering and issue advocacy. The central question that I address in this paper is not whether the Court, in choosing certainty over accuracy, made the correct constitutional choice. Rather, I examine the question of whether the Court’s magic words test has achieved even the very limited aim that the Court staked out for it—providing certainty for those engaged in political speech. In the first part, I begin with a discussion of the genesis of the magic words test. In the second part, I examine the question of how effective the magic words test has been in distinguishing between electioneering and issue advocacy in the real world. In the third part, I examine the central question of this paper—whether the magic words test has, in fact, provided the certainty promised by the Court. For this analysis, I look both at lower court decisions construing the magic words test and at political ads that were run by interest groups in the most recent federal election cycle. Finally, in the fourth part, I compare the magic words test developed by the Supreme Court to the test for electioneering contained in the Bipartisan Campaign Finance Reform Act of 2002, which was signed into law on March 27, 2002. I conclude, in the end, that the magic words test has been a complete failure. Not only does it fail to distinguish accurately between electioneering and issue advocacy, but also, it does not even provide the certainty that is supposed