Strengthening Constitutional Self-Government

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FEC May Ban Ads for Moore’s Movie

The Hill is reporting that Michael Moore may not be able to advertise "Fahrenheit 9/11" because of the Bipartisan Campaign Reform Act’s prohibition on mass communications (radio/television) which reference candidates for federal office within 30 days of a primary (or, in this case, National Convention) or 60 days of a general election. The restriction is even broader than The Hill suggests. Because the ads would undoubtedly be paid for not by an individual, but by a corporation (the big, bad meanie in campaign finance law), they would be subjected 11 CFR 114.2(b)(2)(iii), which prohibits corporations from making any of these so-dubbed "electioneering" communications to those outside a restricted class. While there is a news exemption, it has been construed by the Supreme Court to be very narrow. Indeed, when I testified before the FEC in 2002, a frequent question debated among the Commissioners was whether comedy shows which reference the news (but are not traditional news services) such as The Daily Show, Letterman, and Leno would be subject to the news exemption.

To my mind, all of this shows how absurd campaign finance law has become. I think that Michael Moore is a grandstanding buffoon, but I believe that the First Amendment protects his ability to say political things. That does not mean that I think that Moore should get a pass with the FEC. Perhaps they will choose to expand the news exception, but if they do, it will be by doing violence to their own regulations. Moore’s movie, and any advertisement for it consistent with the themes of the film, are by the terms of the statute and regulations the sort of "attacks" that Congress and the FEC dubiously sought to regulate--even if those institutions did not contemplate this precise situation. For Moore to get a pass, many other communications should also get a pass and their sponsors thereby should be allowed to enjoy their First Amendment rights. But since I don’t see that happening, the law should be enforced equally.

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