FEC Declines to Rule on Filmmaker Exemption

Posted June 24, 2004 at 1:23pm

As critics stepped up their efforts to discredit Michael Moore’s controversial documentary “Fahrenheit 9/11,” the Federal Election Commission declined to rule on whether documentary films qualify for a journalistic exemption from laws designed to regulate campaign advertisements and other types of electioneering.

The question landed at the FEC because of a case involving a far less famous filmmaker, David Hardy. Hardy’s film, “The Rights of the People,” explores the Bill of Rights and is being produced on behalf of a nonprofit group called the Bill of Rights Educational Foundation, according to documentation filed with the FEC.

In a meeting Thursday morning, FEC commissioners concurred with the agency’s general counsel that proposed advertisements for Hardy’s film qualify as “electioneering communications” and therefore may not be paid for with corporate or labor funds. Moreover, if legally funded, such ads would be subject to stringent reporting requirements.

But the commissioners at the meeting broke with the general counsel, which had advised that the filmmaker should not be granted a “media exception” equivalent to that provided to broadcast journalists and others.

Instead, the commissioners said that the FEC would not address the question of a media exemption one way or another.

The Hardy case, filed months ago, took on added relevance with the entry of “Fahrenheit 9/11” in theaters and the efforts by critics to blast its harsh portrayal of President Bush and his family. If the FEC had agreed with its general counsel, Moore’s efforts to advertise his film might have faced restrictions.

Earlier today, Republican activist David Bossie, president of Citizens United, alleged in a complaint at the FEC that Moore and those marketing and distributing his documentary are “about to violate” campaign laws because commercials for the movie — which feature images of President Bush and other candidates — are subject to restrictions and prohibitions.

“According to federal law, any ads featuring images or references to President Bush that can be viewed in the United States by 50,000 or more persons qualify as ‘electioneering communications’ and are subject to the ban on corporate and foreign money,” a press release outlining Bossie’s complaint alleges.

The FEC’s actions today, however, leave unresolved whether Moore as a documentary filmmaker would be exempt from such requirements under the media exemption.

And either way, FEC officials said today’s ruling has no bearing on Moore’s advertising efforts.

“This doesn’t mean anything for Michael Moore,” FEC Vice Chairwoman Ellen Weintraub said. “We specifically avoided making any ruling on the media exemption.”

Weintraub emphasized that today’s opinion applies only to one case — that of Hardy — and that her colleagues agreed to punt on the issue of whether the media exemption applies to documentaries.

“Some of my colleagues said they thought the documentary would be entitled to the media exemption,” Weintraub explained. “Others said they weren’t sure.”

However, as Republican Commissioner David Mason noted, Bossie’s complaint on “Fahrenheit 9/11” will provide a forum for the FEC to address such issues.

Furthermore, he indicated to those who attended the meeting that he would be skeptical of any interpretation of the media exemption that would provide for different treatment of a major corporate subsidiary than a small independent start-up.

Fellow Republican Michael Toner also indicated that legislative history indicates that the media exemption should be interpreted broadly because Congress meant to protect the press in all forms.