                       REVISED APRIL 15, 2002
              IN THE UNITED STATES COURT OF APPEALS

                        FOR THE FIFTH CIRCUIT
                        _____________________

                             No. 00-60779
                        _____________________

CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA,

                                                     Plaintiff-Appellant,

                                versus

MIKE MOORE, Attorney General, State of Mississippi; ERIC
CLARK, Secretary of State, State of Mississippi,

                                             Defendants-Appellees.
__________________________________________________________________

           Appeal from the United States District Court
             for the Southern District of Mississippi
_________________________________________________________________
                           April 5, 2002
Before JOLLY and PARKER, Circuit Judges, and MILLS,* District
Judge.

E. GRADY JOLLY, Circuit Judge:

     This appeal of a declaratory judgment by the Chamber of

Commerce of   the   United   States   of   America   involves   the   First

Amendment and state regulation of political advertisements aired

shortly before the election for members of the Mississippi Supreme

Court.   During the 2000 election season, the Chamber ran four

television commercials describing the background and qualifications

of candidates seeking positions on the court.         The defendant state

officials initiated a review of the advertisements to determine



     *
      District Judge of the Central District of Illinois, sitting
by designation.
whether they were subject to a Mississippi statute that requires

the    disclosure        of   “independent      expenditures”        that   “expressly

advocate” the election or defeat of a specific candidate.                           In

response, the Chamber sought a declaratory judgment that its

advertisements       were     not   subject     to   the    disclosure      law.   The

district court, in a thoughtful and reasoned opinion, held that the

advertisements were subject to state regulation because reasonable

minds   could      not    differ    that   the    advertisements        advocate   the

election of the specified candidates.

        The Supreme Court has held that the First Amendment permits

regulation of political advertisements, but only if they expressly

advocate the election or defeat of a specific candidate.                      There is

some disagreement, however, concerning the standard to be applied

in determining whether a given advertisement contains “express

advocacy.”         Today we follow most Courts of Appeal that have

considered the issue.               We hold that a state may regulate a

political advertisement only if the advertisement advocates in

express terms the election or defeat of a candidate.                    Applying this

rule    to   the    present      case,     we    conclude     that    the    Chamber’s

advertisements do not expressly advocate the election or defeat of

a candidate.         This is true because the advertisements do not

contain explicit terms advocating specific electoral action by

viewers.     As a consequence, the advertisements are not subject to

mandatory     disclosure         requirements        for    independent       campaign


                                            2
expenditures. Accordingly, we reverse the judgment of the district

court.

                                       I

     In   November    2000,   four     of    the    nine    positions       on   the

Mississippi Supreme Court were up for election.                   Less than one

month before the election, the Chamber ran four thirty-second

television    advertisements,    each       extolling      the    virtues     of   a

different candidate running for a position on the court.                         The

advertisements featured three incumbents (former Chief Justice

Lenore Prather, Justice Kay Cobb, and Justice James Smith) and one

challenger (Judge Keith Starrett).           The advertisements identified

the candidate and described in general terms the candidate’s

judicial philosophy, background, qualifications, and other positive

qualities.      For   example,   the       advertisements        emphasized      the

candidates’   “common   sense”   and        their   interest      in   protecting

“victims’ rights.”1 The advertisements concluded by displaying the

     1
      The audio portion of the advertisement featuring former Chief
Justice Prather is typical:

           Lenore   Prather    –   Chief             Justice        of
           Mississippi’s Supreme Court.

           Lenore Prather – Using common sense principles
           to uphold the law.

           Lenore Prather – Putting victims rights ahead
           of criminals and protecting our Supreme Court
           from the influence of special interests.

           The first woman appointed to Mississippi’s
           Supreme Court, Lenore Prather has 35 years
           experience on the bench.

                                       3
address of an Internet web site, www.LitigationFairness.org, that

contains a page with links to the campaign web sites of Justice

Cobb and Judge Starrett and to pages containing biographical

information for Justice Smith and former Chief Justice Prather.2

     The election process for positions on the Mississippi Supreme

Court is governed by Mississippi’s election laws, which include

regulations requiring reporting and disclosure of “independent

expenditures” on candidates’ campaigns.          See MISS. CODE. ANN. §§ 23-

15-801 et seq. Because the Chamber did not report its expenditures

on   the   advertisements   to    state       election   authorities,    the

Mississippi Attorney General and Secretary of State initiated an

investigation to determine whether the advertisements violated the

state election laws.3       The Chamber brought an action in the

District Court for the Southern District of Mississippi seeking

declaratory    relief   from     the       application   of   the   election

regulations.    The Chamber argued that application of the state

regulations to its advertisements would impermissibly curtail its

right to free speech.



           Lenore Prather. A fair and independent voice
           for Mississippi.
     2
       The link for Justice Smith directs the viewer to a page on
the Litigation Fairness site describing Justice Smith’s background.
The link for former Chief Justice Prather directs the viewer to her
biography on the Mississippi Supreme Court web site.
     3
       The state acknowledges that there is no evidence that the
Chamber colluded with any of the candidates in developing the
advertisements.

                                       4
       The district court adopted a test first articulated by the

Ninth Circuit in Fed. Election Comm’n v. Furgatch, 807 F.2d 857

(9th Cir. 1987).       It held that the advertisements were “express

advocacy” because, in the context of the ongoing election campaign,

no reasonable viewer would construe the advertisements as anything

but    a   directive       to     vote      for    the    featured          candidates     --

notwithstanding that the advertisements’ express words did not call

for    action   on   the    part       of   the    voter.        The    district         court

specifically found that the advertisements “clearly champion[] the

election of a particular candidate” and “contain no true discussion

of issues.”      It thus held that the Chamber’s advertisements could

be subject to state campaign regulations without offending the

First Amendment.       The Chamber now appeals.



                                             II

       Because the Chamber’s challenge to Mississippi’s mandatory

disclosure statute follows a well-worn path, we begin with a brief

discussion of the applicable caselaw.                    Our review of the Supreme

Court decisions in this area leads us to the conclusion that

mandatory    disclosure         provisions        like    that    in    the      Mississippi

statute    apply     only       to    communications        containing           words    that

explicitly      advocate        the    election     or    defeat       of    a   particular

candidate. Because the advertisements at issue here do not contain

such   express     advocacy,          we   conclude      that    the   First      Amendment



                                              5
protects these advertisements from governmental regulation.

                                     A

     Although   the    states,   like     the    federal    government,    have

authority to regulate elections and election campaigns, the Supreme

Court has held that the First Amendment constrains the government’s

power to compel the disclosure of independent contributions and

expenditures, just as it constrains the government’s power to

regulate the amount of money that a person or group can contribute

to or spend on election campaigns.         See Buckley v. Valeo, 424 U.S.

1, 19, 60-61 (1976).

     In Buckley, candidates and political donors challenged the

constitutionality of a federal election statute that imposed limits

on individual campaign contributions, expenditures by candidates,

and independent expenditures “relative to” specific candidates.

Most relevant to our decision today, the Court also reviewed a

provision of the statute requiring “‘[e]very person (other than a

political   committee    or   candidate)    who     makes   contributions    or

expenditures’ aggregating over $100 in a calendar year ‘other than

by contribution to a political committee or candidate’ to file a

statement with the [Federal Election] Commission.”                Buckley, 424

U.S. at 74-75 (quoting 18 U.S.C. § 434(e) (1970 Supp. IV)).                 The

Court   observed      that    compelled     disclosure       of    independent

expenditures    implicates    the   First       Amendment   because   it   “can

seriously infringe on privacy of association and belief” and it can



                                     6
indirectly deter the exercise of First Amendment rights.    Id. at

64-65.   The Court recognized that the government has an important

interest in providing the electorate with information about the

sources of money spent during political campaigns and collecting

data to enforce campaign laws.   The Court nevertheless held that a

provision requiring disclosure of independent campaign expenditures

involves a “significant encroachment[] on First Amendment rights”

and must therefore be subject to “exacting scrutiny.”   Id. at 64-

67; see also id. at 75 (“In considering this provision [requiring

disclosure of independent expenditures by individuals or groups],

we must apply the same strict standard of scrutiny, for the right

of associational privacy developed in NAACP v. Alabama derives from

the rights of the organization’s members to advocate their personal

points of view in the most effective way.”).

     To ensure that the mandatory disclosure provision in the

federal statute did not encroach on protected political speech by

individuals and groups, the Court held that the provision must be

narrowly construed to be consistent with the First Amendment.   Id.

at 80.   Accordingly, the Court interpreted the provision to “apply

only to expenditures for communications that in express terms

advocate the election or defeat of a clearly identified candidate

for federal office.”4   Id. at 44.   In a footnote, the Court then


     4
      The Court articulated this standard in construing the section
of the federal election statute limiting expenditures by
individuals and groups “relative to a clearly identified candidate”

                                 7
provided examples of terms of express advocacy: “‘vote for,’

‘elect,’ ‘support,’ ‘cast your ballot for,’ ‘Smith for Congress,’

‘vote against,’ ‘defeat,’ ‘reject.’”             Id. at 44 n.52.

     In Fed. Election Comm'n v. Massachusetts Citizens for Life,

Inc., 479 U.S. 238, 243 (1986) (“MCFL”), the Court applied the

“express advocacy” standard to a newsletter that encouraged readers

to “Vote Pro-Life” and listed the names of “pro-life” candidates in

the election.      Observing that the “express advocacy” standard is

designed “to distinguish discussion of issues and candidates from

more pointed exhortations to vote for particular persons,” the

Court   held    that    the    newsletter       contained    “[j]ust     such   an

exhortation.”    Id.     The Court reasoned that an explicit directive

to vote “pro-life” read in conjunction with named “pro-life”

candidates was only “marginally less direct” than a specific

exhortation to vote for the named candidates.               Id.   Thus, the MCFL

Court   extended       the    “express       advocacy”   inquiry    to    include

consideration of the logical relationship between an express term

advocating election or defeat and the names of specific candidates

identified in the communication.

     In reviewing the application and constitutionality of various

state and federal election regulations, most Courts of Appeal have

adopted the view that, under Buckley and MCFL, the government may



to $1000 per calendar year. Buckley, 424 U.S. at 39. Later in its
opinion, the Court adopted this standard during its review of the
statute’s mandatory disclosure provision. See id. at 77-80.

                                         8
regulate   only   those   communications   containing   explicit   words

advocating the election or defeat of a particular candidate.5

These courts rely primarily on Buckley’s emphasis on (1) the need

for a bright-line rule demarcating the government’s authority to

regulate speech and (2) the need to ensure that regulation does not

impinge on protected issue advocacy.6

     5
       See Faucher v. Fed. Election Comm'n, 928 F.2d 468, 470-71
(1st Cir. 1991) (“Express advocacy is language which ‘in express
terms advocate[s] the election or defeat of a clearly identified
candidate’ through the use of such phrases as ‘vote for,’ ‘elect,’
‘support,’ ‘cast your ballot for,’ ‘Smith for Congress,’ ‘vote
against,’ ‘defeat,’ and ‘reject.’” (quoting Buckley, 424 U.S. at 44
& n.52)); Fed. Election Comm’n v. Cent. Long Island Tax Reform
Immediately Comm., 616 F.2d 45, 53 (2d Cir. 1980) (en banc)
(rejecting interpretation of federal election statute allowing FEC
to regulate statements made “for the purpose, express or implied,
of encouraging election or defeat”); Fed. Election Comm'n v.
Christian Action Network, Inc., 110 F.3d 1049, 1051 (4th Cir. 1997)
(“[T]he Federal Election Campaign Act [can] be applied consistently
with the First Amendment only if it [is] limited to expenditures
for communications that literally include words which in and of
themselves advocate the election or defeat of a candidate.”); Iowa
Right to Life Comm., Inc. v. Williams, 187 F.3d 963, 969 (8th Cir.
1999) (“The Supreme Court's focus was on whether the communication
contains ‘express’ or ‘explicit’ words of advocacy for the election
or defeat of a candidate.”); Citizens for Responsible Gov’t State
Political Action Comm. v. Davidson, 236 F.3d 1174, 1187 (10th Cir.
2000) (“[C]ommunications that do not contain express words
advocating the election or defeat of a particular candidate are
deemed issue advocacy, which the First Amendment shields from
regulation.”).
     6
      See, e.g., Christian Action Network, 110 F.3d at 1051 (noting
that the Buckley Court “opted for the clear, categorical
limitation, that only expenditures for communications using
explicit words of candidate advocacy are prohibited, so that
citizen participants in the political processes would not have
their core First Amendment rights to political speech burdened by
apprehensions that their advocacy of issues might later be
interpreted by the government as, instead, advocacy of election
result”); Citizens for Responsible Gov’t, 236 F.3d at 1187 (“In
order to counter the tendency of the line between protected ‘issue

                                   9
     The sole departure from this bright-line approach among our

sister circuits came in Fed. Election Comm’n v. Furgatch, 807 F.2d

857 (9th Cir.), cert. denied, 484 U.S. 850 (1987).7        The Ninth

Circuit summarized its holding in that case:

          We conclude that speech need not include any
          of the words listed in Buckley to be express
          advocacy under the Act, but it must, when read
          as a whole, and with limited reference to
          external events, be susceptible of no other
          reasonable    interpretation    but   as    an
          exhortation to vote for or against a specific
          candidate.

Id. at 864.   The court further elaborated:

          First, even if it is not presented in the
          clearest, most explicit language, speech is
          “express” for present purposes if its message
          is unmistakable and unambiguous, suggestive of
          only one plausible meaning.    Second, speech
          may only be termed “advocacy” if it presents a
          clear plea for action, and thus speech that is
          merely informative is not covered by the Act.


advocacy’ and regulable ‘express advocacy’ to ‘dissolve in
practical application,’ the Buckley Court construed the allegedly
vague statute at issue as applicable only ‘to communications
containing express words of advocacy of election or defeat’”
(quoting Buckley, 424 U.S. at 44 & n.52)); Iowa Right to Life
Comm., 187 F.3d at 969 (“To avoid uncertainty . . . the Supreme
Court in Buckley, established a bright-line test. . . .”).
     7
      One district court and several state courts have also applied
this approach. See, e.g., Elections Bd. of State of Wis. v.
Wisconsin Mfrs. & Commerce, 597 N.W.2d 721, 732 (Wis. 1999);
Osterberg v. Peca, 12 S.W.3d 31, 53 (Tex. 2000); Federal Election
Comm'n v. Nat’l Organization for Women, 713 F.Supp. 428, 433
(D.D.C. 1989); cf. Federal Election Comm'n v. Christian Coalition,
52 F.Supp.2d 45, 63-64 (D.D.C. 1999) (holding that “[a]lthough the
implicit message is unmistakable, in explicit terms [a statement in
a fundraising letter] is prophecy rather than advocacy” and that a
“scorecard” was not express advocacy because “a reasonable person
could understand [the] statement to be a directive to engage in
issue advocacy”).

                                10
            Finally, it must be clear what action is
            advocated. Speech cannot be “express advocacy
            of the election or defeat of a clearly
            identified candidate” when reasonable minds
            could differ as to whether it encourages a
            vote for or against a candidate or encourages
            the reader to take some other kind of action.

Id.8   Although the Ninth Circuit’s approach does not stray far from

other articulations of the “express advocacy” standard, it does

introduce two elements not present in the limited inquiry endorsed

by the other circuits:    (1) “limited reference” to the context of

the communication and (2) reference to whether “reasonable minds”

could differ about the meaning of the communication.

       These aspects of the Ninth Circuit’s approach in Furgatch were

essentially rejected by courts that adopted the bright-line rule

requiring explicit words directing viewers to vote for or against

a particular candidate. For example, in Virginia Society for Human

Life, Inc. v. Fed. Election Comm'n, 263 F.3d 379, 392 (4th Cir.

2001),     the   Fourth   Circuit      found     a    federal   regulation

unconstitutionally overbroad because it defined express advocacy as

a communication that, when taken as a whole, “‘could only be

interpreted by a reasonable person as containing advocacy of the

election    or   defeat   of   one        or   more   clearly   identified

candidate(s).’” The court held that “[t]he regulation goes too far

       8
       The Furgatch Court applied this analysis to a newspaper
advertisement against then-President Jimmy Carter urging readers
“Don’t let him do it.” The court concluded that the advertisement
was express advocacy when read in context because “reasonable minds
could not dispute that [the] advertisement urged readers to vote
against Jimmy Carter.” Furgatch, 807 F.2d at 864.

                                     11
because it shifts the determination of what is ‘express advocacy’

away from the words ‘in and of themselves’ to ‘the unpredictability

of audience interpretation.’”              Id. at 392.           The Eighth Circuit

reached a      similar    conclusion       when    it    found    that   an   election

regulation defining express advocacy according to “what reasonable

people or reasonable minds would understand by the communication”

was unconstitutional because the regulation “does not require

express words of advocacy.”          Iowa Right to Life, 187 F.3d at 969.

     We agree that the Furgatch test is too vague and reaches too

broad an array of speech to be consistent with the First Amendment

as interpreted in Buckley and MCFL.9               Instead, we iterate that the

language of the communication must, by its express terms, exhort

the viewer to take a specific electoral action for or against a

particular candidate.        See Buckley, 424 U.S. at 44 (interpreting

federal    election      statute    to    “apply    only    to    expenditures    for

communications that in express terms advocate the election or

defeat    of   a   clearly   identified         candidate”       (emphasis    added)).

Although       application     of        this     rule     may     require     making


     9
       We also reject amici’s definition of express advocacy:
“[W]hen an ad contains only an express endorsement of a candidate’s
qualifications for public office . . . and contains no discussion
of any issue as a topic worthy of its own attention, then the ad is
an ‘electoral’ rather than ‘issue’ ad.” This definition involves
an impermissible inquiry into what issues are “worthy” topics of
discussion. We also note that neither Buckley nor MCFL adopted an
“express endorsement” test. Indeed, such a test necessarily would
encompass   communications   that   contain   no   “express   terms
advocat[ing] the election or defeat of a clearly identified
candidate.” Buckley, 424 U.S. at 44.

                                           12
straightforward connections between identified candidates and an

express term advocating electoral action (as in MCFL), the focus

must remain on the plain meaning of the words themselves.

     We must admit, as the Furgatch Court correctly observed, that

this narrow interpretation of “express advocacy” undoubtedly allows

individuals and organizations to circumvent electoral regulations

simply by omitting from their communications the genre of words and

phrases that convey the same meaning as the words listed in

Buckley. This observation, however, does not affect our reading of

Buckley.   Indeed, the Buckley Court recognized, for example, that

confining the federal limitation on expenditures in this manner

“undermines the limitation's effectiveness as a loophole-closing

provision by facilitating circumvention by those seeking to exert

improper influence upon a candidate or office-holder.”      Buckley,

424 U.S. at 45.   The Court’s overriding concern, however, was that

a statute with an ambiguous scope would chill political discourse:

           “[T]he   supposedly    clear-cut   distinction
           between    discussion,    laudation,   general
           advocacy, and solicitation puts the speaker in
           these circumstances wholly at the mercy of the
           varied understanding of his hearers and
           consequently of whatever inference may be
           drawn as to his intent and meaning. Such a
           distinction offers no security for free
           discussion. In these conditions it blankets
           with uncertainty whatever may be said.      It
           compels the speaker to hedge and trim.”

Id. at 43 (quoting Thomas v. Collins, 323 U.S. 516, 535 (1945)).

To avoid this result, the Court emphasized the need for a clear



                                 13
line between regulated and unregulated speech under the statute.

The Court adopted an “express advocacy” standard focusing on the

explicit language of the communication because “the distinction

between    discussion   of   issues   and   candidates   and   advocacy   of

election or defeat of candidates may often dissolve in practical

application.”     Id. at 42.10

     In sum, we believe that a narrow interpretation of “express

advocacy” is faithful to the language and spirit of Buckley and

MCFL.     It clearly avoids the pitfalls of making application of the

First Amendment dependent on the understanding of the reasonable

person under the circumstances.11           Accordingly, we hold that a

communication constitutes “express advocacy” -- and may therefore

be subject to mandatory disclosure regulations -- only if it

contains explicit words advocating the election or defeat of a

clearly identified candidate.

     10
       See also Iowa Right to Life, 187 F.3d at 969 (recognizing
the State’s concern “that persons or organizations will
surreptitiously advocate the election or defeat of a named
candidate but avoid legitimate government regulation and reprisal
by simply omitting ‘magic words’ of advocacy” but concluding that
a bright-line test is required to avoid chilling free speech).
     11
       The present case provides a good example of such pitfalls.
In order to find that the advertisements here were subject to state
regulation, the district court had to draw a distinction between
the content of the advertisements and the court’s view –- as
thoughtful as it may be -- of “true issue advocacy.” Chamber of
Commerce v. Moore, No. 3:00-CV-778WS, slip op. at 26 (S.D.Miss.
Nov. 2, 2000); see also Furgatch, 807 F.2d at 864 (concluding that
an advertisement was not “issue-oriented speech” because it
“directly attacks a candidate, not because of any stand on the
issues of the election, but for his personal qualities and alleged
improprieties in the handling of his campaign”).

                                      14
                                    B

      We now turn to apply these principles to this case.           The

Mississippi election statute at issue here provides that each

person who makes aggregate “independent expenditures” of more than

$200 during a calendar year must file a report with the state

disclosing the amount and source of the expenditure and a statement

that the expenditure was not made in cooperation with a candidate.

See MISS. CODE ANN. § 23-15-809.         “Independent expenditures” are

defined in the statute as “expenditure[s] by a person expressly

advocating the election or defeat of a clearly identified candidate

which [are] made without cooperation or consultation with any

candidate or any authorized committee or agent of such candidate.”

MISS. CODE ANN. § 23-15-801(j).    Because the Mississippi legislature

essentially adopted the language of the Supreme Court’s decisions

in Buckley and MCFL in drafting this statute, all that remains is

to   determine   whether   the   Chamber’s   advertisements   constitute

“express advocacy” under the standard articulated above.

      There is no question that the Chamber’s advertisements do not

contain any of the phrases that Buckley cites as examples of

“express advocacy.”        Nor do the advertisements contain other

explicit words advocating the election of the featured candidates

or exhorting viewers to take specific electoral action during the

elections.   Indeed, the advertisements do not refer at all to the

impending elections.



                                    15
      Amici nevertheless argue that the Chamber’s advertisements

are     express      advocacy   because        their    “express      content,   when

considered as a whole, unambiguously constitutes an endorsement of

a particular candidate for public office.”                Observing that neither

Buckley nor MCFL requires “succinct advocacy,” amici argue that the

advertisements’        references    to   positive       attributes     of   specific

candidates are sufficient to bring the advertisements within the

scope of the statute -- despite the absence of explicit words

directing viewers to take a specific action.12                  The State and amici

also point out that the advertisements presented only favorable

information about the candidates.               Because the “essential nature”

of each advertisement is an endorsement of the named candidate,

amici      contend    that   the    advertisements        may    be    subjected   to

disclosure requirements without offending the First Amendment.

      We think it is clear that the examples of express advocacy

listed     in   the   Buckley   footnote        are    illustrative     rather   than

exhaustive because there are a variety of other words and phrases

that convey precisely the same meaning.13                  But express advocacy

      12
       Amici also argue that the advertisements must be express
advocacy because they do not meaningfully discuss public issues and
thus cannot be considered issue advocacy.           This argument
incorrectly assumes that express advocacy is defined as the absence
of issue advocacy. As explained above, the nature of the language
in the communication -- that is, the presence or absence of
explicit words advocating the election or defeat of a specific
candidate -- determines whether it constitutes issue advocacy or
express advocacy.
      13
       Cf. Christian Coalition, 52 F.Supp.2d at 65 (“While the
‘express advocacy’ standard is susceptible of circumvention by all

                                          16
necessarily requires the use of language that explicitly and by its

own terms advocates the election or defeat of a candidate.        If the

language of the communication contains no such call to action, the

communication cannot be “express advocacy.”      Thus, communications

that discuss in glowing terms the record and philosophy of specific

candidates,   like   the   advertisements   at   issue   here,   do   not

constitute express advocacy under Buckley and MCFL unless they also

contain words that exhort viewers to take specific electoral action

for or against the candidates.         Cf. Clifton v. Fed. Election

Comm'n, 114 F.3d 1309, 1311 (1st Cir. 1997) (“[A]s glossed by the

Supreme Court to avoid ‘overbreadth’ [in MCFL], the [federal

election] statute does not prevent corporations and unions from

engaging in issue advocacy including publication of the records and

positions of federal election candidates.”).

     The state emphasizes that the Chamber’s advertisements aired

on the eve of the elections for the supreme court and were

virtually identical to the candidates’ own advertisements -- except

that they omitted the phrase “vote for [the featured candidate],”

which appeared at the end of the candidates’ advertisements.          The

state contends that these facts, viewed together with the content

of the Chamber’s advertisements, supports its position that the


manner of linguistic artifice, merely changing the verb ‘vote’ into
the noun, ‘trip to the voting booth’ is insufficient to escape the
limited reach of ‘express advocacy.’”); Furgatch, 807 F.2d at 863
(noting that the phrases listed in Buckley “do[] not exhaust the
capacity of the English language to expressly advocate the election
or defeat of a candidate”).

                                  17
advertisements constitute express advocacy.                    Indeed, amici argue

that the advertisements “make no sense except in the context of an

election     campaign.”       We      do     not    necessarily        gainsay   this

observation.

     As the above discussion makes clear, however, these contextual

factors    are     irrelevant      to      our     determination       whether   the

advertisements contain express advocacy. The Court in MCFL did not

rely on the factual context in which the communication was made in

determining whether it contained express advocacy.14                     Instead, it

held that courts reviewing a communication may consider the logical

relationship between an express term advocating specific electoral

action and the names of candidates clearly identified in the

communication.       We therefore do not believe that MCFL retreated

from the requirement that express advocacy must contain explicit

words advocating electoral action.                 See MCFL, 479 U.S. at 249

(noting    that    Buckley   concluded          that   “a    finding    of   ‘express

advocacy’ depended upon the use of language such as ‘vote for,’

‘elect,’ ‘support,’ etc.”).             In any event, even under the test

articulated in Furgatch, the timing of the advertisements (or other

contextual       factors)    cannot        transform        general    informational


     14
        The state suggests that the MCFL Court took timing into
account in its review of the “Special Edition” newsletter at issue
in that case. While the Court did observe that the special edition
was released to coincide with an election and had a higher
circulation than normal editions of the newsletter, the Court did
not rely on these facts in concluding that the newsletter contained
express advocacy. See MCFL, 479 U.S. at 249-50.

                                           18
statements about candidates into a call for specific electoral

action.     See Furgatch, 807 F.2d at 864 (“[S]peech may only be

termed ‘advocacy’ if it presents a clear plea for action, and thus

speech that is merely informative is not covered by the Act.”); see

also id. at 863 (“Context remains a consideration, an ancillary

one, peripheral to the words themselves.”).

     Amici also suggest that statements in the advertisements like

“Lenore Prather -- A fair and independent voice for Mississippi”

are only “marginally less direct” than “Smith for Congress,” which

is listed among the examples of express advocacy in Buckley.

Because neither phrase includes a verb like “vote” or “elect,”

amici reason that both phrases depend on their context to convey

meaning.     We find this argument unpersuasive because the two

phrases are not synonymous:          The first connects a name to a

positive character trait while the second connects a name to an

elected office.     As we noted above, favorable statements about a

candidate    do   not   constitute   express   advocacy,   even   if   the

statements amount to an endorsement of the candidate.15                Even

assuming that the phrases were roughly equivalent, “Smith for

Congress” has an accepted meaning that does not vary with context.


     15
        Following the logic of amici’s argument, any laudatory
phrase uttered in connection with a candidate’s name during
election season would be the equivalent of “Smith for Congress.”
We think that this broad interpretation of express advocacy runs
counter to the Supreme Court’s stated concerns about the
overbreadth of government regulation of political speech.    See
Buckley, 424 U.S. at 42-43, 64-67, 80.

                                     19
In contrast, the meaning of the phrases in the advertisements could

conceivably mean “vote for Candidate X” only when considered in the

context   of    an   event   extraneous    to   the   four   corners   of    the

advertisement.       Because such contextual factors are irrelevant to

our inquiry, the meaning of phrases such as “Judge Keith Starrett--

a common sense justice” is at best ambiguous -- unless matters

outside the advertisement are taken into account -- and cannot

constitute express advocacy.

     Finally, the State suggests that, even if the content of the

advertisements does not expressly advocate the election of the

featured candidates, the web site referenced in the commercials

(www.LitigationFairness.org) did so because it included a page

directing viewers to two of the candidates’ campaign web sites

under the heading “Mississippi Candidate Information.”              The State

argues that we must consider this form of indirect advocacy in

determining     whether   the   advertisements     themselves   are    express

advocacy.   However, the LitigationFairness.org site did not itself

contain   any   statements      advocating   the   election    or   defeat   of

candidates.     As a result, we find that the connection between the

advertisements and the candidates’ official sites is simply too

tenuous to make the advertisements “express advocacy.”

     Because the Chamber’s advertisements do not contain explicit

words exhorting viewers to take specific electoral action for or

against the featured candidates, we hold that the advertisements do



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not constitute “express advocacy” under the bright line approach

adopted above.16         As a consequence, the district erred in holding

that the advertisements are subject to mandatory disclosure under

the Mississippi election statute.

                                      III

       We recognize that the result we reach in this case may be

counterintuitive to a commonsense understanding of the message

conveyed by the television political advertisements at issue.

Nevertheless, the result is compelled by the First Amendment, as

interpreted by the Supreme Court in its effort to balance the

state’s interest in regulating elections with the constitutional

right of free speech.         Accordingly, for the foregoing reasons, we

hold        that   the     First   Amendment   protects   the   Chamber’s

advertisements, and consequently the advertisements are not subject

to regulation under the Mississippi election statute. Accordingly,

the judgment of the district court is REVERSED and the case is

REMANDED for entry of judgment for the plaintiff-appellant.

                                                  REVERSED and REMANDED.




       16
       Cf. Perry v. Bartlett, 231 F.3d 155, 159-61 (4th Cir. 2000)
(finding that advertisements that were critical of certain
candidates but that “but did not expressly exhort voters to take a
particular electoral action” were not express advocacy, despite the
fact that the sponsor admitted outside the advertisement that it
sought to defeat the candidates), cert. denied, 121 S.Ct. 1229
(2001).

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