Eight of the nine Justices in the McConnell case rejected any constitutional signficance in the line between express advocacy (advertisements which use express terms to support or oppose a candidates, as in “Vote for Smith”) and issue advocacy (advertising lacking express words of advocacy but intended to, or at least likely, to affect the outcome of candidate elections, as in “Call Smith and tell her what you think about her lousy Medicare plan”). Thus, the McConnell majority wrote:
- “Thus, a plain reading of Buckley makes clear that the express advocacy limitation, in both the expenditure and the disclosure contexts, was the product of statutory interpretation rather than a constitutional command.”
“Nor are we persuaded, independent of our precedents, that the First Amendment erects a rigid barrier between express advocacy and so-called issue advocacy. That notion cannot be squared with our longstanding recognition that the presence or absence of magic words cannot meaningfully distinguish electioneering speech from a true issue ad.”
“Finally we observe that new FECA