How else to explain the inexplicable trouble the Federal Election Commission is having with a relatively straightforward request?

Counsel for producers of the movie “I Want Your Money” (RG Entertainment) and Star Parker, a commentator (and present candidate for Congress), wrote the FEC requesting confirmation that federal campaign law would not restrict the production and distribution of their movie. “I Want Your Money” is a documentary critical of economic policy and includes Parker as well as snippets of a variety of public figures, some of whom also happen to be candidates. Not everyone is treated with a gauzy rose-colored filter, and, in fact, I understand the movie is pretty critical of the approach taken by the present administration.

Yes, in this day and age, after Citizens United v. Federal Election Commission (which involved a movie); and after the enforcement matter involving Fahrenheit 9/11 (a movie); and after Malcolm Stewart of the Solicitor General’s office prompted a gasp at the Supreme Court by asserting that campaign finance restrictions would apply to a book… you would think this question would be an easy one to answer. It’s a movie. Not an expenditure. Next?

But no. In perhaps an interest in covering all the bases, counsel for the requesters gave the Commission too much rhetorical rope. They asked whether the movie was: (a) exempt under the statutory exemption for news commentary or editorials; (b) exempt under the “commercial vendor” exemption (which is what technically protected Fahrenheit 9/11 from FEC regulation, thought I think the statutory exemption is better); or (c) not an expenditure because the documentary doesn’t contain express advocacy.

Also, the requesters wanted to know if it mattered that Star Parker might want to use the movie, too – after paying the going rate, of course.

This menu of choices may be good lawyering, but in effect it seems to have clouded the issue. The FEC gets to regulate some fraction of speech in our society. But a movie, with no financial backing by a political candidate or committee, is easily protected by the statutory exemption… or (if you have a conceptual problem with that, oddly) the First Amendment. Like a book. Neither are a clean fit within the statute, since the statute protects news commentary or editorials distributed through broadcast… or other periodicals. But it is hard to rationalize that the mere means of conveyance (a screen, not a magazine) turns protected speech into regulated speech, tantamount to a paid advertisement. So, wisely, the exemption is interpreted more broadly to apply to books, blogs, screeds, pamphlets, movies, podcasts, YouTube… and movies.

Answer: Not an expenditure. So the collateral issues raised by the requester are easy, too. Are payments to license the right to show the movie some kind of expenditure? No (not without more). How about the promotional activities undertaken as part of the release? No. Does it matter if Star Parker wants to show it, as opposed to, say, me? No, not as an expenditure on behalf of other people who might appear in the movie, and who are candidates.

Any other answer is inexplicable and would lead the FEC down a path best abandoned.