[I've got a reflex that makes me look for the fishy spot every time a CATO
guy says anything, even if he says he's on our side, especially if he says
that. Still, some of it's got a half-plausible ring. Not sure it how it
would turn out if they tried to enforce it, though.]
http://www.nationalreview.com/comment/samples200407070848.asp
July 07, 2004, 8:48 a.m.
Free Michael Moore!
Campaign-finance reform boomerangs and hits the Democrats' favorite
moviemaker.
By John Samples
Will Michael Moore's movie Fahrenheit 9/11 land him in jail? Maybe.
Only time will tell.
Of course, Moore won't end up behind bars because his movie criticizes
George W. Bush. The First Amendment still exists, more or less. Moore
may end up as a campaign-finance convict, guilty of illegally
referring to a clearly identified candidate for federal office within
30 days of a primary (or 60 days of a general election).
To see how Moore might become a felon, we need to understand the case
of David T. Hardy, the president of the Bill of Rights Educational
Foundation, a nonprofit corporation in Arizona. Hardy is producing a
documentary film entitled The Rights of the People, which concerns
issues related to the Bill of Rights. The film apparently refers to
several members of Congress up for reelection in 2004 and to President
Bush. Hardy had hoped the Bill of Rights Educational Foundation would
help pay for the marketing and distribution of the The Rights of the
People, including advertising on TV and radio.
Hardy is a well-informed citizen. He knew enough to ask the Federal
Election Commission whether his plans to market his film would fall
under the strictures of campaign-finance law. As it turned out, his
marketing plans were a potential felony. The FEC ruled that the ads
were an electioneering communication because they mentioned
candidates for national office. Federal law prohibits the Bill of
Rights Education Foundation from paying for the ads. So, unless Hardy
wants to pay for the marketing of the movie himself and thereafter to
comply with the rules governing electioneering communication
(disclosure and so on), the roll out of The Rights of the People will
have to wait until after Election Day.
Moore's situation is similar to Hardy's. No one doubts Fahrenheit 9/11
refers to President George W. Bush, who is running for reelection.
Presumably, the advertising for the movie will include references to
President Bush. After all, that's who the movie is about, and Moore's
attacks on President Bush and his family are the major appeal of the
film for its target audience.
Broadcast, cable, or satellite ads are banned if they're funded by a
corporation or union, refer to a clearly identified federal candidate,
and appear within 30 days of a primary or 60 days of a general
election. That means Moore's distributor, Lions Gate Films (a
corporation) can't run ads between July 30 and August 30 (the date of
the Republican convention, which is treated as a primary in which Bush
is a candidate), or between September 2 and the November 2 general
election.
If Fahrenheit 9/11 shows up on broadcast, cable, or satellite TV after
July 30, Moore may well be in big trouble unless he financed the movie
himself. If a corporation financed the movie, Moore will have broken
the law.
If individuals financed the movie, the ban on electioneering
communications would not apply. But Moore's movie still could not be
made in concert or cooperation with or at the request or suggestion
of Kerry, Kerry's campaign, an agent of his campaign, a
Democratic-party committee or their agents. To help with the movie,
Moore has employed Chris Lehane, a high-ranking operative in Al Gore's
presidential bid. The chairman of the Democratic National Committee
(along with six Democratic senators and a couple Democratic members of
the House) showed up at the premiere of Fahrenheit 9/11 in Washington.
After seeing the movie, the chairman of the DNC said, I think anyone
who goes to see this movie will come out en masse and vote for John
Kerry. Clearly the movie makes it clear that George Bush is not fit to
be president of this country.
The movie might well appear to be cooperating with the Democratic
presidential effort. In campaign finance, appearances are often
tantamount to guilt. My advice to Michael Moore: Get yourself a good
campaign-finance lawyer.
The election lawyer Robert Bauer recently wrote there should not be a
question that a documentary filmmaker can produce for public
distribution a work highly critical (and more) of the President of the
United States, or of any other political figure, without confronting a
challenge from the Federal government. Yet that question has been
posed by Sen. John McCain and his allies, and none of us know the
answer for certain.
