Have you seen those ads for Fahrenheit 9/11? The ones that show a confused-looking George W. Bush wandering around aimlessly? The ones in which he issues some statement or other about terrorism, then implores reporters to watch his next golf swing? Probably you have. Well, in the summer of 2004, a right-wing group called Citizens United asked the Federal Election Commission to ban those ads.1 And on June 25, 2004, the FEC issued an advisory opinion (albeit on a different case) arguing that ads like these were illegal.2
Predictably, left-wing websites erupted with their usual accusations of Bushian neo-fascism and censorship. It's a flagrant violation of the First Amendment, they said, a clear sign that dissent will not be tolerated. Besides that, it seemed a rather stupid thing for the Republicans to do. Controversy and attempts at censorship can only help Moore; he's used them to his advantage before, following the old maxim that there's no such thing as bad publicity.
So the left-wingers asked some sensible questions: Why would they do such a thing? More important, how could they think that they have the power to do it? Good questions, and as it happens, some of the left-wingers hit on the answer right away. It's really quite simple:
You insisted on giving them the power to do it.
That's right. Is it censorship? Yes. Is it an infringement on free speech? Indubitably. Is it illegal? No. This action is permitted--in fact, it's required--by current US law.
Now, what could I possibly be talking about? As I said, it's quite simple. Remember that whole campaign finance reform debatle? Remember how McCain-Feingold and Shays-Meehan made it through Congress with near-unanimous support from Democrats? Remember how Bush signed it, even though he expressed firm doubts about its constitutionality?3 Good. Please keep all that in mind. We're going to have a look at what the current campaign finance regulations actually say about such matters.
Here's what 11 CFR 114.2(b) says:
(2) Except as provided at 11 CFR 114.10, corporations and labor
organizations are prohibited from:
(iii) Making payments for an electioneering communication to those outside the restricted class [which here means executives or members of the administration]....
That seems relatively clear given that it's legalese. (11 CFR 114.10, if you're wondering, refers to a small subset of nonprofit corporations.) So what's an electioneering communication? Here's what 11 CFR 100.29 says:
(a) Electioneering communication means any broadcast, cable, or
satellite communication that:
(1) Refers to a clearly identified candidate for Federal office; and
(2) Is publicly distributed within 60 days before a general election
for the office sought by the candidate; or within 30 days before a primary or
preference election, or a convention or caucus of a political party that
has authority to nominate a candidate, for the office sought by the
candidate, and the candidate referenced is seeking the nomination of
that political party;
So let's unpack this. First of all, this restriction only applies when it's within 60 days before a general election or 30 days before a primary or caucus. Within this time period, a corporation can't pay for an ad that refers to a candidate for Federal office.
Now, at the moment, it's within 60 days of a general election. The ads I mentioned show George W. Bush. George W. Bush is obviously a candidate for Federal office. The ads, one presumes, are paid for by Lion's Gate Media or some other corporation. Therefore, these ads would be illegal if they were broadcast. They can't be shown. Period.
Hey, you asked for this law, right?
I've been unable to find whether Moore expressed his opinion on campaign finance reform before this issue arose.
He did recently say that he considered this a "violation of [his] First Amendment rights."4 Fair enough, though his other comments weren't terribly insightful:
If it [i.e., the ban] happens, that means that Fox News Channel will have to remove all of their promos that show President Bush, because you can't advertise anything that shows a candidate. For us it would be like advertising Mission: Impossible without Tom Cruise in any of the spots. Bush is the star of the movie!"5
Let's start with the first sentence. His claim about Fox News is false; media entities have an exemption from many of the restrictions, and so they'd be able to show pictures of the President or John Kerry. (There is currently a bit of debate over what precisely constitutes a media entity, but whatever the definition it seems clear that Fox would qualify. It's by no means clear that Moore would; more on that in a bit.) Second, it turns out that Moore somehow managed to put together ads without George Bush in them. Some news agencies reported that the complaint was dismissed, which is true but potentially misleading. The complaint was dismissed only because Lion's Gate et al. stated that they would no longer be running ads with Bush in them. That is, the ads had in fact been changed to comply with campaign finance regulations; therefore, the alleged violation had not been committed or planned and the complaint had no basis6. Hardly seems like a victory when you're forced to censor yourself. Moreover, the FEC did not determine whether the revised ads were legal, as Citizens United didn't ask this question.7 Presumably, the portion of the law I cited above wouldn't apply, but consider this from 11 CFR 114.2(b):
(2) Except as provided at 11 CFR 114.10, corporations and labor
organizations are prohibited from:
(ii) Making expenditures with respect to a Federal election.... for communications to those outside the
restricted class that expressly advocate the election or defeat of one or more clearly identified candidate(s) or the candidates of a clearly identified political party;
And, according to 11 CFR 100.22, "express advocacy" means:
...any communication that--(a) Uses phrases
such as "vote for the President"...[other examples deleted to save space]...or communications of campaign slogan(s) or individual word(s), which in context can have no other reasonable meaning than to urge the election or defeat of one or more clearly identified candidate(s), such as posters, bumper stickers, advertisements, etc....
(b) When taken as a whole and with limited reference to external events, such as the proximity to the election, could only be interpreted by a reasonable person as containing advocacy of the election or defeat
of one or more clearly identified candidate(s) because--
(1) The electoral portion of the communication is unmistakable, unambiguous, and suggestive of only one meaning; and
(2) Reasonable minds could not differ as to whether it encourages actions to elect or defeat one or more clearly identified candidate(s) or encourages some other kind of action.
When used here, "communications" clearly aren't limited to broadcast media. As for the purported media exemption I mentioned before, Chairman Bradley Smith of the FEC expressed concern about it in a separate case:
Documentaries and books as such are not specified as exempted activities in the Act....Thus, under a narrow approach, it may be that the publication and promotion of a number of popular
books....could be subject to government regulation (and potentially suppression) under the campaign finance laws, because they appear to expressly advocate the defeat of a clearly identified federal candidate, and are
produced and promoted by corporations. Books by politicians could meet the same fate....The same could be said of politically charged documentaries -- to the extent they expressly advocate the election or defeat of a candidate for federal office, their production and promotion may violate the corporate expenditure ban.
Other proposed legal standards not present before us now, which have been
prominently advocated, could lead to more aggressive regulation of such activities. For
example, under the expansive definition of "express advocacy" favored by some of my
colleagues, the production and promotion of Michael Moore's movie Fahrenheit 9/11
may have been banned completely, if these activities were financed by corporations.
Similarly, a recent regulatory proposal before the Commission, supported by many
prominent campaign finance regulatory advocates, including Democracy 21, the
Campaign Legal Center, and Senator John McCain, could potentially have censored
Moore's movie regardless of whether or not it contained "express advocacy," if it was
found to be produced and distributed by corporations with the "major purpose" of
influencing a federal election.8
Scary, eh? Still glad you supported McCain-Feingold?
This isn't what we wanted to happen!
Oh, I'm sure it isn't. I'm sure the liberals and leftists who supported the bill thought that it would only affect those icky corporate-controlled Republicans. Maybe they believed the nonsense about the general media's tendency towards right-wing advocacy. Maybe they just forgot that Mike Moore is a rich white fat capitalist much like all the other rich white fat capitalists they rail about all the time.9 Whatever the cause, we now have a presumably well-intentioned law that has wide-ranging implications that its supporters presumably did not anticipate (sometimes I think that's a hallmark, if not a defining feature, of leftist politics).
The regulations I quoted are based on Federal law and are ultimately enforced by the FEC. The FEC Commissioners are appointed by the President. You handed the incumbent the power to regulate the ads that affect his re-election. What the hell did you think was going to happen, people?
All legal quotations are from findlaw.com. Please let me know of any formatting errors--if you can suggest a method that will make the citations clearer, I'd be happy to hear it.
2http://www.fec.gov/aos/ao2004-30final.pdf. Ironically, the decision pertained to ads that Citizens United was considering running. This is quite interesting, actually. One can ask the FEC (and, I presume, similar government agencies) to give an advisory opinion about a proposed course of action to see if it satisfies the requirements of Federal law. It's a nice way to get a bit of advice from the folks who will actually be enforcing the laws against you. So if in the future Moore or anyone else claims to have been "blindsided" by the FEC, or that they had "no way of knowing" that the FEC restrictions would be applied in a particular way, don't believe it. They had every opportunity to check with the FEC.
7I assume that the FEC's decisions should be interpreted narrowly, but I don't have much experience with the actions of regulatory agencies. If someone knows differently, please let me know.
9I mention Moore's weight only because, like his skin color, it's a feature that makes him fit the leftist stereotype about businessmen. Obviously it has no bearing on the merit (or lack of merit) of his arguments.