FEC Dismisses “Fahrenheit 9/11” Complaint

Posted August 6, 2004 at 1:01pm

The Federal Election Commission announced today that it has dismissed a complaint against documentary filmmaker Michael Moore and the corporate distributors of “Fahrenheit 9/11” that had alleged that advertising for the movie would violate electioneering communications if aired after July 30.

In a related matter, the FEC is entertaining a petition for rulemaking from the Washington law firm Perkins Coie that suggests the FEC create an exemption for the promotion of documentary films — similar to ones already covering the traditional press — so that they might not be trapped by the Bipartisan Campaign Reform Act’s restrictions on “electioneering communications.”

Stating that the complaint against Moore “presents nothing more than idle, unsupported speculation,” the FEC dismissed the matter and concluded that Moore and his film’s marketers had not violated the act “because the relevant electioneering communications period does not begin until July 31, 2004 and because the Respondents stated that they did not intend to run such ads during the electioneering communications period.”

David Bossie, a former GOP aide on Capitol Hill and the current president of a conservative group called Citizens United, had filed the original complaint back in June, arguing that Moore and the companies and individuals involved in the marketing and distribution of his film were “about to violate” federal campaign finance laws.

Noting that Moore “produced the work for use as a political weapon against President Bush in the November 2004 presidential election,” Bossie complained that because advertisements for the film featured visual images and sound clips of Bush and other candidates for federal office, they would be subject to the restrictions and regulatory requirements of federal campaign law and could not be aired after July 30.

Under the electioneering communications provisions of BCRA, corporate-funded broadcast ads that mention or depict a federal candidate may not be aired within 30 days of a primary or 60 days of a general election. Because the Republican National Convention, which the FEC recognizes as a nominating convention similar to a primary, convenes Aug. 30, the blackout period for such ads mentioning Bush would appear to take effect July 31.

But distributors of Moore’s blockbuster documentary, which has grossed more than $100 million since opening in late June, stopped advertising well before the July 31 deadline kicked in, making Bossie’s challenge a moot issue.

A joint response from Lions Gate Entertainment Corp. and other distributors of “Fahrenheit 9/11” to the FEC stated that prior to the filing of the complaint, the distributors “had made a business determination as part of the marketing plan for the film and with a view to the legal landscape that, among other things, no funds would be expended for paid advertisements over broadcast, cable or satellite that would refer to clearly identified candidates to federal office during the period after July 30, 2004 and through November 2, 2004.”

That appeared to satisfy the FEC.

“Because the relevant Respondents flatly deny that they intend to run such advertisements during the electioneering communications period, and because the facts alleged by [Citizens United] permit no inference that violations of the Act are about to occur, we recommend the Commission dismiss the complaint,” the FEC’s general counsel advised the agency’s commissioners.

However, as the agency prepares to deal with the issue in a more general context, doubts are weighing on the minds of some FEC officials.

Chairman Brad Smith and Commissioner Michael Toner, both Republicans, issued a “concurring statement of reasons” to the OGC’s recommended dismissal of the allegations and noted that the FEC may have difficulty addressing Perkins Coie’s request for an exemption for movies such as Moore’s.

“This may be difficult,” Smith and Toner wrote. “The statue specifically prohibits the [FEC] from fashioning any exemption for electioneering communications that ‘promote, support, attack or oppose’ a federal candidate … and it may be difficult to develop an acceptable definition of ‘promote, support, attack or oppose’ that would not pull within its ambit a film such as Fahrenheit 9/11.”

Nonetheless, Smith and Toner questioned whether a narrow interpretation of how the “press exemption” applies — or doesn’t apply — to films and advertising for films could be extended to other areas.

While they conceded that movies are “not obviously covered” by language exempting news stories and editorials from regulation, they note that “if the statutory language is to be interpreted so narrowly, it must be noted that books would not be covered either.”

“Numerous books, then, would also be illegal, see e.g. Bill Press, Bush Must Go: The Top Ten Reasons Why George Bush Doesn’t Deserve a Second Term or Ann Coulter, High Crimes and Misdemeanors: The Case Against Bill Clinton, and subject to government suppression under the campaign finance laws,” Smith and Toner wrote.

As Moore’s film continues to show in movie houses across the country, Bossie is busy promoting his own anti-Kerry agenda.

In July, Bossie’s latest book, “The Many Faces of John Kerry,” hit stores. According to Bossie’s own Web site, the tome “gives readers the real scoop on the presidential challenger — offering the only analysis of Kerry’s peculiar voting record; early Naval discharge (so he could protest the Vietnam War); self-contradictory positions on such vital issues as the war in Iraq, fighting terrorism, tax cuts, health care, education, and campaign finance; and shady political dealings he’d rather voters not know about.”