Who Can “Influence Our Elections”?

People talk about “money” influencing our elections, but what does that mean? The New York Times has a lot of money, and they even specifically endorse candidates, so is that the kind of influence that concerns us? Or movies like “Zero Dark Thirty,” which is about the killing of Bin Laden and was released during the 2012 election, could be described as “money” influencing an election. After all, it cost $40 million to make, and that doesn’t include the promotion budget. Is that the type of money we’re concerned with?

Most people would say “no,” but defining the difference between the New York Times, “Zero Dark Thirty,” and Michael Moore’s “Fahrenheit 9/11” is more difficult than you might think. In fact, thousands of lawyers in this country are engaged in trying to figure that out and to help clients avoid run-ins with the Federal Election Commission (FEC).

Have you heard of the Supreme Court case Michael Moore v. FEC, when the Court opened up the floodgates of dark money and allowed for-profit corporations to spend unlimited amounts of money to influence our elections? No, you haven’t, because that case goes by a different name, the infamous Citizens United v. FEC. But Michael Moore and his Dog Eat Dog Films almost ended up as the catalyst for deciding the same issue that the Court would eventually resolve in Citizens United, namely, whether corporations can spend independently to advocate for or against a candidate.

Before Citizens United, corporations and unions were prohibited from independently funding political speech that was for or against candidates for federal office. This meant ads, movies, or anything else that could be considered a “broadcast.” In 2004, David N. Bossie, president of the conservative activist organization Citizens United and current deputy campaign manager for Donald Trump, filed a complaint with the FEC about the movie “Fahrenheit 9/11.” The ads for the movie, according to the complaint, were prohibited “electioneering communications” — meaning they clearly referred to George W. Bush, a candidate for federal office — that were illegally funded by corporate money.

Citizens United went after the ads for the movie because the ads were “broadcast,” whereas the movie itself would not be broadcast, at least as that term was generally construed. This was a crucial distinction that would be relevant in the later case of Citizens United v. FEC and is still relevant today. Campaign finance laws generally focus on communications that people might encounter accidentally, particularly television and radio ads, because those are seen as a unique threat to our electoral system.

Another complaint was also filed attacking the movie itself, its website, and its affiliated websites. The FEC dismissed the complaints against the movie, the trailers, and website because they were deemed “bona fide commercial activity” rather than campaign speech. Thus, Michael Moore avoided having to fight for his movie in higher courts.

Let’s take a step back. Campaign finance laws are premised on the idea that some types of spending on political speech that influences elections need to be monitored and regulated in order to ensure that candidate bribery isn’t occurring and that our citizens know who is funding certain ads so, presumably, they can make more informed decisions. But the very existence of such a capacious concept as “spending money to influence elections,” coupled with the First Amendment, means that certain groups and certain communications must be exempted from federal oversight. Speech that is political but not specifically election related, for example, is exempt. The press is exempt because a press that must register with the government before criticizing candidates is not a truly free press. And, finally, some entities that produce “bona fide commercial activity,” such as filmmakers, are generally exempt. Nevertheless, it is possible that certain movies could be essentially political endorsements or de facto attack ads, and then the FEC might decide that a filmmaker has gone too far.

Where’s that line? No one exactly knows.