Express advocacy: why should courts and the FEC have all the fun?

The DISCLOSE Act doesn’t seem to directly define “express advocacy”; it amends the definition of “independent expenditure” in 2 USC 431(17) to provide that the term means an expenditure by a person

that, when taken as a whole, expressly advocates the election or defeat of a clearly identified candidate, or is the functional equivalent of express advocacy because it can be interpreted by a reasonable person only as advocating the election or defeat of a candidate, taking into account whether the communication involved mentions a candidacy, a political party, or a challenger to a candidate, or takes a position on a candidate’s character, qualifications, or fitness for office…

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