278
Opinion of Thomas, J.
ing communications" cover a significant number of communications that do not use words of express advocacy. 2 U. S. C. § 434(f)(3)(A) (Supp. II).11
In Buckley, the Court was presented with the ambiguous language " 'any expenditure . . . relative to a clearly identified candidate.' " 424 U. S., at 41. The Court noted that the "use of so indefinite a phrase as 'relative to' a candidate fails to clearly mark the boundary between permissible and impermissible speech." Ibid. Hence, the Court read the phrase to mean "advocating the election or defeat of a candidate." Id., at 42 (internal quotation marks omitted). But this construction did not complete the vagueness inquiry. As the Court observed:
"[T]he distinction between discussion of issues and candidates and advocacy of election or defeat of candidates may often dissolve in practical application. Candidates, especially incumbents, are intimately tied to public issues involving legislative proposals and governmental actions. Not only do candidates campaign on the basis of their positions on various public issues, but campaigns themselves generate issues of public interest." Ibid.
The Court then recognized that the constitutional issues raised by the provision "can be avoided only by reading
11 The Court, in upholding most of its provisions by concluding that the "express advocacy" limitation derived by Buckley is not a constitutionally mandated line, has, in one blow, overturned every Court of Appeals that has addressed this question (except, perhaps, one). See Clifton v. FEC, 114 F. 3d 1309, 1312 (CA1 1997); Vermont Right to Life Comm., Inc. v. Sorrell, 221 F. 3d 376, 387 (CA2 2000); FEC v. Christian Action Network, Inc., 110 F. 3d 1049, 1064 (CA4 1997); Chamber of Commerce v. Moore, 288 F. 3d 187, 193 (CA5 2000); Iowa Right to Life Comm., Inc. v. Williams, 187 F. 3d 963, 968-970 (CA8 1999); Citizens for Responsible Govt. State Political Action Comm. v. Davidson, 236 F. 3d 1174, 1187 (CA10 2000). The one possible exception is the Ninth Circuit. See FEC v. Furgatch, 807 F. 2d 857, 862-863 (1987).
Page: Index Previous 172 173 174 175 176 177 178 179 180 181 182 183 184 185 186 NextLast modified: October 4, 2007