Thursday, June 24, 2004

Hypothetically speaking . . .

For fun, let's say . . .

What if someone wanted to film a documentary about President Bush and advertise its availability? The documentary would be available in non-broadcast form, such as video tape or disc, but it might be promoted via radio and television commercials. Would the commercials for the documentary referring to a specific candidate, such as Bush, trigger the "electioneering communications" provision of the Bipartisan Campaign Reform Act?

Gee, why does this sound familiar?

This is a real question posed by someone from an "obscure" organization called the Bill of Rights Educational Foundation to the Federal Elections Commission. Pair this request with the announcement by another conservative group of plans to file an FEC complaint against Bush, and it all adds up to Moore or less the same thing.

(The background for this post comes from a news update via a clip service I get - so I apologize for not having a link to that right now - but the draft advisory opinion is numbered AO 2004-15, and is on the agenda for the June 24 FEC meeting here).

The draft ruling concludes that the proposed ads would be electioneering communications subject to BCRA's funding restrictions and disclosure requirements 60 days before the general election because they would refer to a clearly identified presidential candidate. The FEC found no applicable exceptions to the proposed ads. It finds no safe harbor in the media exception - which applies to "established media companies" and waives campaign finance limits for "news stories, commentaries, or editorials" discussing candidates. Wouldn't a documentary be all of those things together? Albeit in a different forum.

Moore's people think he has a good case for supporting his project's established media company status. Former FEC counsel Larry Noble, of the Center for Responsive Politics (nonprofit, watchdog), says he expects Moore will face challenges anyway.

The guy filing the question, David Hardy, says he thinks the draft violates First Amendment, free speech principles. But he says "election laws are elections laws." How true he is on that - they're all about limiting speech in the quest for vocal equality. But it seems Hardy does have his own documentary - so this isn't the first wave of an attack on Moore - uh, yet/sorta.

What's the overarching concern here? That your local AMC is going to turn into a propaganda machine (more than traditionally anyway), that movies will become a great way to skirt election laws? Maybe. But a swift rise in Moore's type of movie seems unlikely. And ineffective.

How many hard-line Reeps will pay for Moore's product. I'm guessing not a lot. Might he pick up some new swings away from Bush, sure. But who benefits? Kerry? Kerry fans will see the movie and just still not like Bush. What if it helps, gulp, Greens and 3d party creep Nader, as FOP Pinkerton opines in today's Newsday column.

Frankly, I don't think I'd go see an hour-plus indictment of Kerry if one were produced by some admin-friendly filmmaker. Who doesn't know Moore's angle? How effective is it? Is it worth the myriad unintended consequences possible from FEC action against Moore's movie?

Easiest way out is for him to just get creative during the 60 day pre-election period. Just don't say "Bush," show Bush, etc. But the base concern here may be misplaced. I'd like to think this movie will save the country - but it might just endanger it by energizing 3d party voters who place misguided votes for Bush via their votes for Nader.

It's an interesting hypothetical - but the real world applications go beyond first impressions.

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