As the 2002 election cycle approaches, nonprofits wanting to know whether their public statements are unregulated issue advocacy or regulated electioneering ("express advocacy") will have to consult a map for the answers. The reason is that federal appeals courts in different parts of the country have issued contradictory rulings on whether or not the Federal Election Commission's (FEC) definition of what constitutes "express advocacy" is constitutional. On December 11 the FEC in effect decided not to seek Supreme Court review of a Virginia case finding their regulation, 11 CFR 100.22, unconstitutional. The vote was a 3-3 tie, and a majority is needed to request the Solicitor General to take up the case.

In the Virginia case, Virginia Society for Human Life v. FEC, the Court of Appeals for the 4^th Circuit found the definition of "express advocacy" as statements "taken as a whole and with limited reference to external events, such as the proximity to an election, could only be interpreted by a reasonable person as containing advocacy of the election or defeat" of a candidate, to be unconstitutionally vague. Similar rulings have been made in the 1^st and 2^nd Circuits, making the regulation unconstitutional in 12 states: Connecticut, Maine, Maryland, Massachusetts, New Hampshire, New York, North Carolina, Rhode Island, South Carolina, Vermont, Virginia and West Virginia. Puerto Rico is also covered by the 1^st Circuit. The regulation was found constitutional in another case in the 9^th circuit, so that it still applies in the remaining 38 states.

In states where the regulation has been found invalid, only messages that explicitly call for election or defeat of a federal candidate will be regulated by the FEC. The FEC only has jurisdiction over federal elections, so these court rulings do not affect state election laws.