George W. Bush is undoubtedly the star of “Fahrenheit 9/11,” but unintended consequences of federal campaign finance reform could prohibit Michael Moore from using his name or picture in TV ads for the doc.
The controversy stems from the McCain-Feingold campaign finance reforms, which went into effect in 2002 and bar any corporation or union from buying TV and radio ads that feature political candidates in the days preceding elections.
Rules kick in 30 days ahead of a primary election or national convention and 60 days ahead of a general election.
A conservative group, Citizens United, filed a complaint with the Federal Elections Commission on Thursday arguing that these “electioneering communications” rules applied to TV spots for “Fahrenheit.”
If the FEC agrees, it would mean Bush must be edited out of TV spots — which currently feature the President swinging a golf club and saying “Bring ’em on” — starting on July 31, 30 days before the Republican National Convention opens in Gotham.
Ellen Weintraub, vice chair of the FEC, said that the commission is still working out much of the McCain-Feingold legislation. “A lot of these questions are brand new because this is the first election cycle that this law has been in effect,” she said. “They wrote it very broadly, but a lot of things came up that they didn’t anticipate,” Weintraub added.
“In a general sense there’s not much mystery what fits the definition,” said FEC commissioner Scott Thomas. “Congress probably hadn’t thought through a lot of the hypotheticals that we’re going to be dealing with.”
Indeed, Moore’s partisanship is not at issue. Whether the Franklin Mint can advertise a George W. Bush commemorative plate is just as open to debate as whether “Fahrenheit” ads can air.
The FEC has several weeks to decide whether to investigate the complaint, and even if it opens an investigation, nothing will be resolved until well after the November elections.
But Trevor Potter, former general counsel for Sen. John McCain’s presidential campaign and now an attorney with Caplin & Drysdale, said even if a decision came sooner, the effect on Lions Gate and IFC Films marketing plans would be minimal. “The worst that could happen is that they might have to edit the TV and radio ads to take out the limited snippet with Bush,” he said.
Nonetheless, Moore, appearing at a Capitol Hill press conference, blasted the complaint as “a blatant attempt on the part of a right-wing, Republican-sponsored group to stop people from seeing my movie.”
He added, “It’s a violation of my First Amendment rights that I cannot advertise my movie. It’s a movie. I have not publicly endorsed John Kerry. I am an independent; I am not a member of the Democratic Party.”
Dave Bossie, prexy of Citizens United, said he is not trying to “silence Michael Moore” or “squelch his film.” In fact, Bossie would like Moore to be able to run the spots without any government intervention. Citizens United was part of the effort to defeat the new campaign finance laws that went all the way to the Supreme Court, where opponents of the legislation lost their legal battle. Now, Bossie insists his group only wants fair treatment.
“I am here today to insist that the law be applied evenhandedly,” he said. “Michael Moore and his cohorts are subject to the same campaign law restrictions that apply to me and Citizens United.”
In the complaint, Bossie also takes issue with Lions Gate Entertainment because it is based in Canada and cannot lawfully fund any U.S. electioneering communications.
“If Michael Moore wants to call me, I am available to help him comply with the federal election law,” Bossie remarked.
On Thursday, the FEC ruled in a separate case that another documaker, David Hardy, could not include federal candidates in radio and TV ads for his film.
But the FEC did not delve into whether a documentary would fall under an exemption for news media in the federal laws.
“It’s pretty unsettled,” Thomas said. “To me it wouldn’t make sense that anyone who has desktop publishing software can say I’m part of the media now.” He added, though, “I think in a general sense the commission will strive to find folks who are in the business of producing documentaries that someone will distribute through movie theaters will fit the media exception.”
Loyola Law School professor Rick Hasen said of the decision, “The FEC was not willing to wade into the waters without better facts.”
Indeed, it turns out that the documentary in question, which Hardy calls “The Rights of the People,” is a pro-gun response to Moore’s “Bowling for Columbine.” Hardy said he shelved the project earlier this year to co-author the upcoming book “Michael Moore Is a Big Fat Stupid White Man” for Regan Books instead.
But on this issue, Hardy is in complete agreement with Moore about the potential of an FEC ad ban. “It was pretty startling when I read the blasted statute.”