Not Really a Problem of Agency Discretion

July 1, 2014
posted by Bob Bauer

Troubled as always that the government might be dabbling in politics, George Will wrote this last week about the Patent Office cancellation of the “Redskins” trademark registration. His larger point is that once the government has the discretion to jump into political debates, it may choose those occasions that suit its political or ideological preferences. Citing Jonathan Turley,  he gives an example from campaign finance: the FEC’s exercise of discretion in approving the financing of Michael Moore’s documentary about George W. Bush, Fahrenheit 911, while disapproving Citizen United’s now-famous documentary about Hillary Clinton.

The situation Will describes was more complicated and the facts considerably more confounding and entertaining. Beginning in 2004, the question before the agency was whether the purchase of pre-election broadcast time for a political documentary and associated advertising constituted a prohibited “electioneering communication.” The law on this point turns in material part, of course, on a mere reference to a candidate: no express advocacy is required. But in the episode cited by George Will, the FEC was, in fact, evenhanded, and the conclusion to be drawn from the story is different from the one that he offers.

Yes, it is true that the Michael Moore film was challenged as a prohibited electioneering communication—by none other than Citizens United, which filed the complaint in June 2004.  Complaint, Matter Under Review 5467 (2004).  The Commission was spared the need to rule against Moore and his production company, because they stipulated that they would not pay to have the film broadcast, or for any of its advertisements, during the pre-election periods that define electioneering communications.  So ended the Citizens United complaint.

But Citizens United had planned a documentary of its own, attacking John Kerry and John Edwards, and it asked the FEC to opine on whether the broadcasts and related advertising would  come within the prohibition.  Advisory Opinion 2004-30 (Sept. 30, 2004). The Commission concluded that the restriction did indeed apply. The decision was unanimous.

Along the way a rulemaking petition urging the commission to adopt an exemption for the promotion of political documentaries was filed (by me) in July 2004. Petition for Rulemaking (July 20, 2004). Citizens United registered its support for the petition—the same Citizens United that had filed the complaint against the ads for Fahrenheit 911 Michael Moore was preparing to run.

Nothing happened for three years, until in 2007 the Supreme Court decided FEC v. Wisconsin Right to Life, after which, in the course of promulgating implementing rules, the Commission adopted  an exemption for commercial advertisements.  11 C.F.R. § 114.15(c)(2)(ii) (excluding from the definition of express advocacy a communication that “proposes a commercial transaction,” such as paid film attendance).

So the entire episode was not really about agency discretion at all. It was about a controversial provision of McCain-Feingold, then in effect but now limited in application to disclosure requirements by the combined operation of Wisconsin Right to Life and Citizens United. The  Commission was stuck, having no choice but to apply the law as written. Citizens United went after Michael Moore; Michael Moore dodged the complaint by giving up the pre-election broadcasts; Citizens United then had to swallow the same medicine when looking to broadcast and promote its Kerry-Edwards documentary; and the Commission would not enact by rule a limited exception for the promotion of political documentaries.   Then the Supreme Court was heard from.

Or to tell the tale more generally:

Interests that did not believe in the rule in question accused others of violating it. Those threatened with legal action abandoned plans to buy time to broadcast their films and film ads.  The partisan interests clashing over the films were all engaging in exactly the same activity they were fighting about. The agency was urged to find a way out but wouldn’t, or imagined it couldn’t.  Because all this was left in the air, the surprise that documentaries could not be broadcast became astonishment, in the course of the Court’s deliberations in Citizens United, that the law could be interpreted to prohibit the publication of books.

The problem here is far greater than one of agency discretion.

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