By Eliza Newlin Carney
NationalJournal.com
Monday, June 28, 2004

The excitement refuses to die down over at the Federal Election Commission, where TV crews recently jammed the sidewalk outside the agency's E Street headquarters for a hastily-called news conference on the red-hot film "Fahrenheit 9/11."

A question for the FEC: Is the film "Fahrenheit 9/11" news or electioneering?

Conservatives staged the June 24 event to complain that advertisements promoting the controversial film could violate campaign finance laws. Directed by Michael Moore, the documentary attacks and ridicules President Bush, accusing him of mismanaging the terror threat and the Iraq war.

"This is about Michael Moore having to follow the rules," said David N. Bossie, president of the conservative group Citizens United. Bossie's group has complained to the FEC that ads promoting Moore's film qualify as "electioneering communications" under the new campaign finance law, because they feature Bush and other federal candidates.

Under the new law, non-party groups that run broadcast ads that picture or name a federal candidate in the weeks before an election face tight restrictions. These include a ban on corporate funding, a disclaimer saying who paid for the ad, and FEC reporting requirements. The limits apply 60 days before a general election, and 30 days before a primary or convention, meaning they will kick in shortly.

Bossie acknowledged that his group joined in an earlier court challenge to the Bipartisan Campaign Reform Act on free speech grounds. But he argued that now that the Supreme Court has upheld the law, Moore should follow it. Neither of the documentary's distributors -- Lions Gate Entertainment Corp. and IFC Films -- could be reached for comment.

Even as Citizens United held its press conference, the FEC was wrapping up a public hearing on the 9th floor to respond to an advisory opinion request from a little-known Arizona film-maker with a dilemma much like Moore's. David T. Hardy had asked the commission whether ads for his still-unfinished documentary film, "The Rights of the People," would be subject to the new law's reporting and funding rules.

The FEC essentially said: Yes. Since Hardy's promotional ads will feature the president, they will qualify as "electioneering communications" and face funding and reporting restrictions, the FEC concluded. That finding struck Bossie as a very good sign. "We are, and will continue to be, extremely optimistic that the FEC will find in this matter that Michael Moore is in violation of the law," he said.

In fact, the FEC's response to Hardy has little bearing on the Moore complaint. For starters, an FEC advisory opinion cannot be interpreted as a rule of law. In general, such opinions address only the precise situation at hand, and Moore's circumstances are not identical to Hardy's. Moreover, Hardy did not seek from the commission -- and did not receive -- an exemption as a member of the news media. Moore is likely to do so.

Exemptions that waive the campaign finance limits for political "news stories, commentaries or editorials" are well established. They date back to the Federal Election Campaign Act of the 1970s, and were carried over in the BCRA. Court cases acknowledge the unique role of a free press in a democracy, and have interpreted the media exemption to include promotional advertising.

Not that Moore and his distributors are off the hook. Advancing technology has made it increasingly difficult to define who represents the news media, a problem for both Moore and the FEC.

"In this day of desktop publishing and video software, it's pretty easy for somebody with a relatively unsophisticated computer to spin out DVDs or publish a book in their own home," said FEC commissioner Ellen Weintraub, a Democrat. She described the larger questions around the media exemption as "a knotty problem."

Legal experts agree that the complaint involving Moore draws the FEC into complicated territory. "If the question is, should broadcast advertisements featuring President Bush in the electioneering communications window be treated the same as other electioneering advertisements by corporations, I think it's a very difficult one," said Richard L. Hasen, a Loyola Law School professor.

The commission, moreover, is divided on the subject. Republican Michael Toner, for one, is less equivocal about media exemptions than Weintraub. While he declined to comment on the Citizens United complaint, he argued that "the press exemption is designed to protect the media in all its forms, whether it be newspapers, television, radio or independent film makers." The key test is whether a media entity is operating independently from a candidate or political party, he noted.

It's anyone's guess how the commission will respond to the controversy involving Moore and his explosive film. It's fair to say, though, that a strict crackdown like the one Bossie endorses would be likely to draw even more protesters and news crews to the FEC's door.

"Any independent film producer in this country, in my view, is entitled to the press exemption, and is entitled to have his film produced and marketed without restrictions by the federal government," Toner said. "And I think if we ever concluded to the contrary, it would raise very serious constitutional concerns."

Eliza Newlin Carney, a NationalJournal.com contributing editor, also writes for National Journal and Government Executive. Her e-mail address ecarney@nationaljournal.com.

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