Federal Election Commission Complaint Could Lead to Misuse of Campaign Finance Law to Squelch Ads for Political Movies, Documentaries

A right-wing political group on Thursday urged the Federal Election Commission to prohibit commercials for Michael Moore’s film “Fahrenheit 9/11” featuring President Bush from being broadcast in the 30 days before the Republican National Convention or the 60 days before the election. On the same day that Citizens United filed its complaint, FEC commissioners in a separate case involving ads for a documentary adopted an advisory opinion that raises concerns about how broadly the commission will interpret legal restrictions on campaign advertising.

“Federal Election Commissioners must refuse to be used as a tool for silencing critics of the president or any elected official in the midst of an election year,” said People For the American Way Foundation President Ralph G. Neas. “The attempt to push ads for Fahrenheit 9/11 off the air is just the latest attempt by right-wing political groups to misuse campaign finance law in order to squelch dissent.”

While the FEC’s new advisory opinion does not apply directly to Moore’s film, it could create a precedent for forbidding a company from promoting a film with ads that feature the president or members of Congress who are running for re-election. The commissioners left open the possibility that Moore and others could claim a “media exemption” designed to allow news coverage of federal candidates to continue during the pre-election period when ads are restricted. But it is far from clear that commissioners would in fact apply such an exemption. Applying campaign finance laws as proposed by Citizens United, said Neas, would raise serious First Amendment concerns.

Neas noted that earlier this year the Republican National Committee urged FEC commissioners to adopt radical restrictions on advocacy by nonprofit groups that would have forced many organizations to abandon any effective critique of federal officeholders running for re-election. In the face of massive opposition by hundreds of organizations convened as the Coalition to Protect Nonprofit Advocacy, the FEC rejected one version of those proposed regulations and put off further action.