The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

When "Please Vote" Becomes Political


Under federal election law so-called "express advocacy" messages expressly advocate for candidate X. For example, if a famous celebrity publishes an advertisement that says "Please vote for John Doe," he would have engaged in express advocacy. Any funding used to promote that message would be strictly regulated.

Now, let me modify the hypothetical. That same celebrity is a known supporter of John Doe. The celebrity has given the maximum contribution to John Doe, to John Doe's political party, and to various advocacy groups that support John Doe. The celebrity has appeared at public rallies in support of John Doe and has hosted fundraisers for John Doe. More importantly, the celebrity has repeatedly criticized John Doe's opponent. The night before the election, this celebrity sends a two word message to his millions of followers on social media: "Please vote." The celebrity doesn't mention the name of a candidate, or even what race he was referring to. He only tweets, "Please vote."

This message would be clear to anyone who knows about the celebrity: he is urging people to vote for John Doe, with a wink and a nod. The celebrity is certainly not urging people to vote for John Doe's opponent, who he has publicly criticized. Under federal election law, this message would not be "express advocacy" or "issue advocacy."

This hypothetical, of course, is not a hypothetical. Countless celebrities have been urging people to "please vote." The NBA and other sports leagues urge people to "please vote." The message is persistent. None of these entities want people to vote for Trump. They all want people to vote for Joe Biden. It is painfully clear.

I am not urging any reforms to campaign finance laws. Much to the contrary. This hypothetical illustrates how easily these rules can be evaded, with a message as innocuous as "please vote."