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.
