¶ 52. (dissenting). The majority cannot have it both ways: it cannot both uphold the law while at the same time decline to enforce it. Either it must acknowledge and apply the standards already established by the only two United States Supreme Court cases that have addressed express advocacy or, if that standard is unclear, it must do the business of a court and articulate a constitutional standard. Because I believe that it should do the former, and in the end it dodges the issue accomplishing neither, I respectfully dissent.
¶ 53. At the outset I want to note my agreement with the majority. Like the majority, I agree that no particular magic words are necessary for a communication to constitute express advocacy. Majority op. at 669. Like the majority, I agree that the contextual setting may assist in the consideration of whether an ad is express advocacy. Id. at 654,673-75. Like the majority, I agree that Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam), and FEC v. Massachusetts Citizens for Life, Inc. (MCFL), 479 U.S. 238 (1986), constitute the only authority which binds Wisconsin courts on the issue. Majority op. at 670. The majority and I part company, however, when it declines to acknowledge and apply the already established definition of express advocacy.
I
¶ 54. In dodging the issue and relegating the task of defining express advocacy to the legislature or Elections Board, the majority charts a solitary course. *688It appears to be the only court in the nation that requires the legislature or administrative agency to take the lead in adding further definition to express advocacy. Other courts have seen fit to tackle the express advocacy issue that the majority sweeps aside even though the statutes those courts were interpreting did not have a codified definition before them. See, e.g., Faucher v. FEC, 928 F.2d 468, 471 (1st Cir. 1991); FEC v. Furgatch, 807 F.2d 857, 859-60 (9th Cir. 1987); FEC v. Central Long Island Tax Reform Immediately Committee, 616 F.2d 45, 52-53 (2nd Cir. 1980) (en banc); FEC v. NOW, 713 F. Supp. 428, 433-34 (D.C. Cir. 1989).
¶ 55. Examining the contours of the High Court's definition of express advocacy is quintessentially a constitutional inquiry. Constitutional inquiries are ultimately the business of courts. Thus, I find it difficult to understand why the majority washes its hands of the matter.
¶ 56. The majority's error is further illustrated by its laudatory comments of the Federal Election Commission (FEC) rule-making process. It sees fit to hold up for high praise the FEC's adoption of a definition for express advocacy, while at the same time castigating the inaction of the Elections Board. Majority op. at 677-79.
¶ 57. However, the majority fails to recognize that the FEC rule is not the product of that agency's creative juices but is little more than permissible plagiarism of various court decisions: subsection (a) is taken from Buckley, 424 U.S. at 43-44, 79-80; subsection (b) is taken from Furgatch, 807 F.2d at 864. See Maine Right to Life Committee v. FEC, 914 F. Supp. 8, 11 (D. Me. 1996). Had these other courts traveled the path of the majority, the FEC rule that the majority finds so *689noteworthy would not have come into existence. The FEC rule followed court decisions and is based on those decisions. The courts lead and the agency rules follow. The majority errs when it reverses the equation and relegates its business to others.
¶ 58. If, however, the majority really believes that it could not apply the term express advocacy as found in Wis. Stat. § 11.01(16)(a)1, or in Wis. Admin. Code ElBd § 1.28 (Apr. 1998), because those provisions are too imprecise to give notice, then the majority should find that enforcement would be a denial of due process because they are unconstitutionally vague. Instead, the majority takes the tack of mischaracteriz-ing the Board's position and based on that mischaracterization dismisses the complaint finding a denial of the due process right of fair warning.
¶ 59. The majority opinion's conclusion that the complaint should be dismissed is based on a faulty foundation. It is built on the premise that the Board's definition of express advocacy is context based. It needs this premise in order to arrive at its conclusion. Such a foundation, however, mischaracterizes the Board's position.
¶ 60. The majority ignores the repeated statements of the Board that its position adopts the Buckley definition as applied by MCFL and that only as a fall back position does the Board address a context-based definition. Instead, the majority selects excerpts from the briefs and oral arguments that advance only the fall back position and then concludes based on those excerpts that the Board is attempting to apply an after-the-fact context-oriented standard. Majority op. at 677.
¶ 61. This flies in the face of the actual position the Board advanced in its brief and at oral argument. In its brief the Board takes the position that the defini*690tion of express advocacy has been established by the United States Supreme Court and no further definition or explanation of the standard is required. All that the court is required to do is apply that definition to the advertisements at issue in this case. State's br. at 9.
¶ 62. Similarly, at oral argument the Board repeatedly stated the position that sufficient definition of the standard could be found by applying the already established Supreme Court's definition of express advocacy: It argued that there was no need to apply a context-based definition.
¶ 63. In arriving at its misguided conclusion, the majority must, and does, ignore the following exchange and repeated statements of the Board setting forth its primary position.
JUSTICE CROOKS: What's the test in your opinion?
ATTORNEY FOR THE BOARD: The test that I'm suggesting is the Buckley test. The Buckley court sets forth express advocacy and it explains express advocacy by saying it's precisely related to the spending that is unambiguously related to the cam-, paign of a particular candidate.
JUSTICE CROOKS: Doesn't it also say expressly advocates a particular election result?
ATTORNEY FOR THE BOARD: Right and in discussing what express advocacy means, it says, "This reading is directed precisely to that spending that is unambiguously related to the campaign of a particular candidate." That's at page 80. I think in determining whether an ad is unambiguously related to a campaign, a court may make a limited consideration of time, place and audience. I am not suggesting to you that context is a replacement for *691the Buckley standard. I'm not asking you to apply anything but the Buckley express advocacy standard.
And the Board's attorney again stated:
I submit that the content of these ads by themselves are express advocacy. It is not necessary for us to make limited reference to external events....
And repeated:
I think, and I want to be very clear about this. These ads are express advocacy in and of themselves. . . . They are express advocacy regardless of when they are run. ...
And repeated:
I don't think it's important to draw a line because I'm not suggesting to you that context is the test....
And repeated:
The Buckley standard prevails; the Buckley standard is express advocacy. We are not asking you to change that standard....
And repeated:
[This court] has to use the language in Buckley and the language in MCFL and apply the express advocacy standard.. ..
¶ 64. Contrary to the repeated requests of the Board, the majority prefers to wait for the legislature or the Elections Board to craft a definition of express advocacy. That has already been done sufficiently by the United States Supreme Court. If the majority finds that definition wanting for specificity, then it should not relegate the task of further definition to some other *692entity. Crafting a definition is the business of this court. Whatever it chooses to do, it most certainly should not attempt to cloak its inaction with a pervasive mischaracterization of the Elections Board's argument.
HH
¶ 65. Unlike the majority, I would address the issue rather than dodge it. There is no need to invite the legislature or the Elections Board to craft a new standard because the standard already exists. We need not rely on a "previously unarticulated test," majority op. at 679, or an "after-the-fact effort to create a standard of express advocacy," majority op. at 677. Rather, I would acknowledge and apply the already established standards of express advocacy set forth in Buckley and MCFL.
¶ 66. The Buckley Court concluded that government could regulate the disclosure of contributors when the spending is used for communications "that expressly advocate the election or defeat of a clearly identified candidate." Buckley, 424 U.S. at 80. The Court then precisely defined the express advocacy test as follows:
This reading is directed precisely to that spending that is unambiguously related to the campaign of a particular. . .candidate.. . .Id. at 80.
¶ 67. Buckley, of course, was a facial challenge to the Federal Election Campaign Act (FECA) so the Court did not have occasion to apply its test for express advocacy at that time. However, in MCFL the Court was faced with, to date, its sole opportunity to do just that.
*693¶ 68. In MCFL, a group incorporated to "foster respect for human life and to defend the right to life of all human beings, born and unborn" produced a "Special Edition" of its newsletter setting forth "everything you need to know to vote pro-life" in the upcoming November elections. MCFL, 479 U.S. at 241, 243. Though its usual newsletter was sent to approximately 3,000 persons, MCFL printed over 100,000 copies of the "Special Edition."
¶ 69. The newsletter listed the candidates for each federal and state office in every voting district in Massachusetts and indicated whether that candidate's position on three issues corresponded with that of MCFL. Id. at 243. While over 400 candidates were listed, only 13 had their picture included in the "Special Edition" and all 13 were candidates whose positions aligned entirely with that of MCFL on the issues listed.
¶ 70. The Court determined that the "Special Edition" was express advocacy. In doing so, the Court first noted that in Buckley the Court had "concluded. . .that a finding of 'express advocacy' depended upon the use of language such as 'vote for,' 'elect,' 'support,' etc." MCFL, 479 U.S. at 249. The Court then stated that the "Special Edition" included "|j]ust such an exhortation." Id.
The publication not only urges voters to vote for "pro-life" candidates, but also identifies and provides photographs of specific candidates fitting that description. The Edition cannot be regarded as a mere discussion of public issues that by their nature raise the names of certain politicians. Rather, it provides in effect an explicit directive: vote for these (named) candidates. The fact that this message is marginally less direct than "Vote for Smith" does not change its essential nature. Id. (emphasis added).
*694¶ 71. Were Buckley the Supreme Court's only statement on the matter, I might be more inclined to agree with those courts that have concluded that express advocacy requires the "magic words" appearing in the opinion or their synonyms. However, to read MCFL and to see how the High Court actually applied the Buckley test, I do not believe that the test is so limited in delineating what types of speech constitute express advocacy.
¶ 72. If the MCFL Court had seen fit to restrict the appropriate inquiry into only the words of the "Special Edition" it would have limited its discussion to the "dangerous" language of the flyer: "Everything you need to know to vote pro-life," "Vote Pro-Life," and "No pro-life candidate can win in November without your vote in September." MCFL, 479 U.S. at 243. However, the Court did not. Id. at 249.
¶ 73. Instead, the Court noted that the flyer contained more than merely words. As part of its message it contained photographs of certain pro-life candidates. Id. The Court determined that the Buckley express advocacy test is not restricted to a list of possible examples set forth in a footnote. Rather, the Buckley express advocacy test looks to the essence of the advertisement's purpose.
¶ 74. In applying the test the Court focused on the "essential nature" of the flyer. It noted that the flyer could not reasonably be regarded as a "mere discussion of public issues" that necessarily "raise[s] the names of certain politicians." Id. The Court noted that the flyer "in effect" provided the "explicit directive" to "vote for these (named) candidates." Id. Finally, the Court noted that even if the flyer's message was "marginally less direct than 'Vote for Smith'" its "essential nature" constituted express advocacy.
*695¶ 75. In light of these writings, I cannot conclude that the Supreme Court intended express advocacy to be limited exclusively to a narrow band of exhortative words. Instead based on the MCFL discussion, we are to look at the "essential nature" of the advertisement: Is it one that merely discusses issues, and in the process discusses candidates inextricably linked to those issues, or is it one that advocates some action for or against a candidate but does so under the guise of discussing issues? Ultimately, the question is whether the advertisement is unambiguously advocating the election or defeat of a named candidate. Buckley, 424 U.S. at 80.
¶ 76. This approach, labeling advertisements as express advocacy when their essential nature unmistakably advocates for the election or defeat of a candidate, is more congruous with the realities of both advertising and speech. The accuracy of this statement is reinforced with even the most superficial observations of advertising in general. Few advertisements will directly say "Buy Nike rather than Reebok" or "Drink Maxwell House coffee." Be they in the print or electronic media, advertisements normally do not include a call for action or use "magic words" to relay their message. Yet every reader, listener, or viewer knows that "Less filling, tastes great" is an unambiguous exhortation to purchase a particular type of Miller beer, and "They're Gr-r-reat!" is Tony the Tiger's unambiguous appeal to buy a box of sugar-coated corn flakes.
¶ 77. The approach delineated by the Supreme Court does not stand for semantic shrewdness. Rather, its approach is to look at the essential nature of the advertisement. Such an approach does not open Pandora's box either, for it only applies to those *696advertisements susceptible to no other reasonable interpretation than advocating the election or defeat of a candidate. This does not encompass every attempt at influencing the issues of debate through issue advertisements. It only recognizes that those advertisements' essential natures must be on issues, not on candidates.
¶ 78. Under such a standard, there can be no doubt that the advertisements at issue here are really "exhortation[s] to vote for or against. . .specific candidate^]." The essential nature of these advertisements is candidate advocacy, not issue advocacy. These advertisements mention issues only as a vehicle of propping up or tearing down a particular candidate. Take away references to the candidates and precious little, if anything, would remain of the advertisement.
¶ 79. These advertisements are about vilifying or venerating a candidate; they are not about issues. There is a picture of a candidate and a name of a candidate that predominates each advertisement. Consider, for example, the following advertisement sponsored by WMC:
This year, Wisconsin homeowners received their property taxes cut by almost 17%. No thanks to Senator Alice Clausing. She voted against the largest property tax cut in Wisconsin history. Then Clausing voted against an additional 36 million dollars for schools — right in her own district. Alice Clausing. Liberal on Taxes. . .Wrong on education. Call Senator Clausing. Tell her to stop voting with those Madison liberals.
¶ 80. While issues such as taxes and education were discussed in the advertisement, they could not reasonably be considered the advertisement's essential *697nature. Rather, the essential nature of this advertisement was a directive to the public to vote against Senator Clausing in the upcoming election. It unambiguously advocates the defeat of a named candidate. See Buckley, 424 U.S. at 80.
¶ 81. WMC also sponsored the following advertisement:
What has Gary Drzewiecki done for Northeast Wisconsin? Homeowners will see their property taxes cut by an average of 11.5% Our children's schools will receive millions in additional state aid. And taxpayers will get spending controls on local government. Lower taxes, less spending, better schools. It's a record we can all be proud of. Call Gary Drzewiecki and tell him thanks.
Again taxes, education, and spending were issues mentioned in this advertisement. However, it is unreasonable to consider the essential nature of this ad to be anything other than express advocacy for the candidate. This was clearly not a "mere discussion of public issues" that necessarily "raise[d] the names of certain politicians." MCFL, 479 U.S. at 249. While a directive to call a candidate and thank him may be "marginally less direct than 'Vote for Smith,'" its essential nature is nonetheless express advocacy.
¶ 82. Finally I address the concurrence of Justice Bablitch. I am perplexed by the "half loaf is better than no loaf' analysis. I submit that whether we are left with a half loaf, a whole loaf, or no loaf at all should not drive our legal analysis and conclusions. Our job is to interpret and apply the law based on legal precedents, reason, and common sense. I agree with the concurrence as it addresses the essence of this case but disagree with its bottom-line approach.
*698¶ 83. Such an approach undermines rather than achieves the expressed goals of the concurrence. As noted at the outset the majority and dissent are in agreement that no particular magic words are necessary for a communication to constitute express advocacy, that the contextual setting may assist in the consideration of whether an ad is express advocacy, and that Buckley and MCFL constitute the only authority which binds Wisconsin courts on the issue.
¶ 84. We should decide those issues as to which we agree, acknowledge a divided court on the remaining issues, and remand the case to the court of appeals for a decision on the issues that divide us. The court of appeals may then apply the standard already defined by Buckley and MCFL and adopted by the majority. By joining the majority's mandate but endorsing the dissent's rationale, the concurrence effectively eliminates the possibility that the standard will ever be applied in this case.
¶ 85. Additionally, although the concurrence asserts that its decision is driven by a desire to get a speedy answer, the route that it has chosen will delay rather than achieve a prompt resolution. The concurrence invites the Elections Board or the legislature to establish rules, a time-consuming venture that they might not undertake. Most assuredly, any rules would be challenged and again the issue would end up before us to decide. The path espoused by the concurrence results only in further delay.
¶ 86. I end where I began. The majority errs in its attempt to have it both ways. It upholds the law but then turns around and declines to enforce it. It was required this day to choose which path it wished to follow: apply the express advocacy standard defined by the Supreme Court or, if that standard is too vague, *699craft a better standard instead. It chose to do neither. I would have followed the Supreme Court's lead and assessed these advertisements under the essential nature standard of Buckley and MCFL. Because under such a standard these advertisements are express advocacy, I respectfully dissent.
¶ 87. I am authorized to state that CHIEF JUSTICE SHIRLEY S. ABRAHAMSON joins this opinion.