by Alexander Bolton
Michael Moore may be prevented from advertising his controversial new movie, ?Fahrenheit 9/11,? on television or radio after July 30 if the Federal Election Commission (FEC) today accepts the legal advice of its general counsel.
At the same time, a Republican-allied 527 soft-money group is preparing to file a complaint against Moore?s film with the FEC for violating campaign-finance law.
In a draft advisory opinion placed on the FEC?s agenda for today’s meeting, the agency?s general counsel states that political documentary filmmakers may not air television or radio ads referring to federal candidates within 30 days of a primary election or 60 days of a general election.
The opinion is generated under the new McCain-Feingold campaign-finance law, which prohibits corporate-funded ads that identify a federal candidate before a primary or general election.
The proscription is broadly defined. Section 100.29 of the federal election regulations defines restricted corporate-funded ads as those that identify a candidate by his ?name, nickname, photograph or drawing? or make it ?otherwise apparent through an unambiguous reference.?
Should the six members of the FEC vote to approve the counsel?s opinion, it could put a serious crimp on Moore?s promotion efforts. The flavor of the movie was encapsulated by a recent review in The Boston Globe as ?the case against George W. Bush, a fat compendium of previously reported crimes, errors, sins, and grievances delivered in the director?s patented tone of vaudevillian social outrage.?
The FEC ruling may also affect promotion of a slew of other upcoming political documentaries and films, such as ?Uncovered: The Whole Truth About the Iraq War,? which opens in August, ?The Corporation,? about democratic institutions being subsumed by the corporate agenda, or ?Silver City,? a recently finished film by John Sayles that criticizes the Bush administration.
Another film, ?The Hunting of the President,? which investigates whether Bill Clinton was the victim of a vast conspiracy, could be subject to regulations if it mentions Bush or members of Congress in its ads.
Since the FEC considers the Republican presidential convention scheduled to begin Aug. 30 a national political primary in which Bush is a candidate, Moore and other politically oriented filmmakers could not air any ad mentioning Bush after July 30.
That could make advertising for the film after July difficult since it is all about the Bush administration and what Moore regards as its mishandling of the war on terrorism and the decision to invade Iraq.
After the convention, ads for political films that mention Bush or any other federal candidate would be subject to the restrictions on all corporate communications within 60 days of the Nov. 2 general election.
?Fahrenheit 9/11? opens nationally tomorrow.
The film?s distributor, Lions Gate Films, an incorporated organization, would almost certainly pay for its broadcast promotions.
David Bossie, the president of Citizens United, plans to allege that ?Fahrenheit 9/11? violates federal election law, arguing that ?Moore has publicly indicated his goal is to impact this election season.?
Bossie had planned to file a complaint with the FEC yesterday but postponed action because his lawyers want to review it at the last minute, said Summer Stitz, a spokeswoman for Bossie?s group.
?I don’t think much of Michael Moore or his two-hour political advertisement — that’s all it is,? Bossie said. ?He uses all of these words to make it look like he makes documentaries, but it’s the furthest thing from the truth. Documentaries tend to be fact-based.?
Sarah Greenberg, a spokeswoman for Lions Gate Films who is serving as Moore?s spokeswoman, did not return a call for comment.
The FEC counsel?s draft advisory opinion responded to a request for guidance from David Hardy, a documentary film producer with the Bill of Rights Educational Foundation. Hardy asked whether he could air broadcast ads that refer to congressional officeholders who appear in his documentary.
At issue in the FEC?s opinion is whether documentary films qualify for a ?media exemption,? which allows members of the press to discuss political candidates freely in the days before an election.
In its opinion, the general counsel wrote, ?In McConnell vs. FEC — (2003) the [Supreme] Court described the media exemption as ?narrow? and drew a distinction between ?corporations that are part of the media industry? as opposed to ?other corporations that are not involved in the regular business of imparting news to the public.??
?The radio and television commercials that you describe in your request would be electioneering communications,? the counsel concluded. ?The proposed commercials would refer to at least one presidential candidate. — They would also be publicly distributed because you intend to pay a radio station and perhaps a television station to air or broadcast your commercials. — Finally, they would reach 50,000 people within 30 days of a national nominating convention and or the general election.?
However, one commissioner, Michael Toner, has a different view of what restrictions may be placed on political films.
?I think there’s evidence that when Congress created the press exemption they intended for it to cover media in all its forms,? said Toner. ?If a documentary produced by an independent company would be subject to restriction or, equally important, if efforts to promote the documentary would be subject to restriction, I think that is very problematic.?
Thanks to the okprogressivealliance email list for this piece. –BL