Regulating Electioneering: Distinguishing Between 'Express Advocacy’ and 'Issue Advocacy’

The presentation of electioneering ads under the guise of “issue advocacy” has given rise to a separate parallel track of wholly unregulated electioneering, a development that threatens to make a mockery of the entire scheme of federal and state campaign finance regulation. This paper reviews the history of the rise of “issue advocacy,” describes the current legal landscape, and explains some of the leading regulatory approaches for defining “express advocacy” and “issue advocacy” in a more realistic and constitutionally permissible manner.