the Federal Election Campaign Act (FECA). (2) On the other hand,if a communication is deemed to be "issue advocacy," it cannot be constitutionally subject to any regulation and,therefore, may be funded with unregulated or"soft money." Specifically, it would regulate political ads that: "refer" to a clearly identified federal candidate, are broadcast within30 days of a primary or 60 days of a generalelection, and are made to an audience that "includes" voters in that election. Generally, it would require disclosureof disbursements over $10,000 for suchcommunications, including identification of each donor of $1,000 or more, and such communications would beprohibited from being financed with union orcertain corporate funds. With regard to issue and express advocacy, H.R. 2356 , the "Bipartisan Campaign Finance Reform Act of 2001," (Shays/Meehan), which passed theHouse on February 14, 2002, is similar to S. 27 : it would create a new term in federal election law,"electioneering communication," which wouldregulate political ads that: "refer" to a clearly identified federal candidate, are broadcast within 30 days of a primaryor 60 days of a general election, and (differingfrom S. 27 ) for House and Senate elections, is "targeted to the relevant electorate." H.R. With theexception of the Ninth Circuit, the prevailing view of the federal circuit courts is that Supreme Court precedentmandates that a communication contain expresswords advocating the election or defeat of a clearly identified candidate in order to be constitutionally regulated.
Issue advocacy communications have become increasingly popular in recent federalelection cycles. Theseadvertisements are often interpreted to favor or disfavor certain candidates, while also serving to inform the publicabout a policy issue. However, unlikecommunications that expressly advocate the election or defeat of a clearly identified candidate, the Supreme Courthas determined that issue ads areconstitutionally protected First Amendment speech that cannot be regulated in any manner. According to mostlower court rulings, only speech containing expresswords of advocacy of election or defeat, also known as "express advocacy" or "magic words" can be regulated aselection-related communications and thereforebe subject to the requirements of the Federal Election Campaign Act (FECA). Unlike express advocacycommunications, therefore, issue ads may be paid for withfunds unregulated by federal law, i.e., soft money.
H.R. 2356 (Shays/Meehan), as passed by the House, would create a new term in federal election law,"electioneering communication," which wouldregulate political ads that: "refer" to a clearly identified federal candidate, are broadcast within 30 days of a primaryor 60 days of a general election, and, forHouse and Senate elections, are "targeted to the relevant electorate." Generally, it would require disclosure ofdisbursements over $10,000 for suchcommunications, including identification of each donor of $1,000 or more, and would prohibit the financing of suchcommunications with union or certaincorporate funds. Likewise, S. 27 (McCain/Feingold), as passed by the Senate, would regulate the samecommunications as H.R. 2356 inthe same manner except, with regard to the audience receiving the communication, S. 27 provides that thecommunication be made to an audiencethat "includes" voters in that election.