To many supporters of President Bush, Michael Moore's 2004 documentary "Fahrenheit 9/11" was a blatant attempt to use factual distortions, conspiracy theories, and irreverent wit to undermine the reelection of a sitting president.
The film's popularity did not go unnoticed among Republicans. Now, with the 2008 presidential primaries well under way, a Washington-based conservative advocacy group has produced its own political documentary. It's called "Hillary: The Movie."
There's just one problem. Without extensive broadcast advertising, few people will see it.
"I could have the movie in hundreds of theaters. I just can't let anyone know it is there by advertising it," complains executive producer David Bossie. "I can't purchase ad time on television or radio stations."
"Hillary: The Movie" premièred Jan. 16 in Washington. It is being screened in select cities, including showings in San Diego on Feb. 1 and Santa Ana, Calif., on Feb. 2. But because of its hard edge and timely political subject matter, the Federal Election Commission has put restrictions on three broadcast advertisements promoting the movie. Under campaign-finance regulations, ads for the film must include a political disclaimer and the film's financial backers must be disclosed to the FEC and the public.
The group, Citizens United, objects to the preconditions. Its leaders say they are just trying to get people to see their movie or purchase the DVD, not defeat a particular presidential candidate. So they sued in federal court in Washington, D.C. – and lost.
In an appeal to the US Supreme Court, the group's lawyer, James Bopp, argues that the three ads are not "electioneering communications" advocating the election or defeat of a particular candidate. The ads are simply an effort to inform potential viewers about a political documentary. For the FEC to impose disclosure and disclaimer requirements is an unconstitutional infringement of free speech, Mr. Bopp says.
Judges say election rules apply
Last week, a three-judge district court panel rejected Bopp's argument. It found that "Hillary: The Movie" is the functional equivalent of the kind of corporate-funded campaign attacks that election laws are designed to prevent. The panel also ruled that even though the advertisements about the film did not themselves amount to political attacks, the FEC was still within its power to impose disclosure and disclaimer requirements on the ads.
That's the issue Bopp is presenting to the Supreme Court. The justices are scheduled to discuss whether to take the case on an expedited basis during their Feb. 15 conference.
"I just don't see how the Federal Election Commission has the authority to use campaign-finance rules to regulate advertising that is not related to campaigns," Bopp said in a phone interview.
The First Amendment lawyer is a prominent opponent of the 2002 campaign-finance reform law cosponsored by Sens. John McCain (R) of Arizona and Russ Feingold (D) of Wisconsin. Last year, Bopp persuaded a majority of justices to scale back rules in the McCain-Feingold law governing "issue advertising." Analysts see the latest lawsuit as a bid to extend that holding.
"The law is clearly being tested, and I think [Bopp's] assumption is that this court now is going to be more sympathetic to these challenges," says Washington lawyer Robert Bauer, an election law expert. But it is not clear, Mr. Bauer adds, that the Supreme Court will agree to hear the case.
The market is now
Time is short, according to Mr. Bossie. The market for a political documentary is directly linked to elections, he says, and that market disappears when the elections are over. "We are harmed every minute the court isn't hearing this case," he says.
The three ads in question can be viewed on www.hillarythemovie.com. One of the 10-second ads depicts an interview with conservative firebrand Ann Coulter.
The narrator speaks: "First a kind word about Hillary Clinton."
Ms. Coulter quips: "She looks good in a pants suit."
The narrator: "Now a movie about everything else." The screen flashes photos of Senator Clinton.
The narrator: " 'Hillary: The Movie,' on DVD now."
Under FEC rules, the movie producers must include a four-second disclaimer stating that the message was paid for by Citizens United and is not affiliated with any candidate or candidate's committee.
"What that does is it tells the people watching that it is a political ad," says Bossie, who is also president of Citizens United. But the ads aren't about politics, he says. Rather, they are about trying to drum up business for a movie.
The three-judge panel watched the 90-minute film and studied its 73-page script. The judges concluded: "The Movie is susceptible of no other interpretation than to inform the electorate that Senator Clinton is unfit for office, that the United States would be a dangerous place in a President Hillary Clinton world, and that viewers should vote against her."
Bossie defends his work. "Our job is to inform and educate the American people and that is what we do in this film," he says.
A former congressional investigator, Bossie says his efforts were partly inspired by "Fahrenheit 9/11." But he says he is more faithful to facts than was Mr. Moore. "Documentaries are a new art form for politics. It is a new delivery device for political issues," Bossie says. "I recognized that in 2004 when Michael Moore's film had enormous impact. I didn't like its impact, I didn't agree with the film … however, I recognized the power of film."
How did 'Fahrenheit 9/11' advertise?
Ads for "Fahrenheit 9/11" ran into similar problems at the FEC. Moore removed any mention of Mr. Bush from ads airing close to the election to avoid running afoul of the law. "That's impossible for Citizens United because the name of the movie is 'Hillary: The Movie,' " says Bopp. "You can't say [in an ad], 'Go see a movie, we just can't say the name of it.' "
"We want to fight this [Supreme Court case] and win this battle," Bossie says, "because if Hillary Clinton is not the Democratic nominee we will have an Obama movie out this summer."
Asked about Sen. Barack Obama's squeaky-clean image, Bossie laughs. "Don't worry, I'll have plenty to make a movie."