Four years ago, voters in Ohio and a few other swing states opened their mailboxes to discover a documentary they’d never ordered. “Dreams From My Real Father” posited that the president of the United States was not the son of Barack Obama Sr., but of Frank Marshall Davis, a Communist activist and poet who moved to Hawaii late in life. An Obama soundalike narrated the film, describing how Davis’s radicalism — mentioned occasionally in the real “Dreams From My Father,” referred to as “Frank” — influenced the man then seeking a second presidential term.
There’s little evidence that the film, directed by Joel Gilbert, moved votes. It was not a “birther” advertisement — Gilbert never questioned that Obama was eligible to be president — but in focus groups conducted for Republicans, it alienated more voters than it attracted. While Gilbert financed the film itself, anonymous backers helped send it to swing states. At the time, the Republican Party and Mitt Romney's campaign wanted nothing to do with the new "Dreams."
In 2014, an activist named Loren Collins filed a Federal Election Commission complaint against Gilbert, arguing that the filmmaker had a responsibility to disclose his donors. The FEC finally weighed in last month, and in a typical 3-3 split decision — by law, the FEC is perpetually split between Democratic and Republican commissioners — Gilbert’s DVD mailing was considered “press,” not subject to donor disclosure, comparable to any political documentary.
“With the right framing, even the most dishonest, smear-mongering attacks can skirt FEC regulations under our current regulations,” said Collins. “His mailing cost at least $1 million, and that could've been paid for by Mitt Romney or Donald Trump, and there's no way to know. Taken together with [the Supreme Court's Citizens United decision], this could have very serious negative ramifications. The general counsel's report might as well be an instruction manual on how to avoid the transparency that comes with public disclosure of financiers.”
In an interview, the victorious Gilbert said that he was clearly “a media entity like Fox News or Michael Moore or The Washington Post.” Collins’s complaint amounted to “liberal fascism,” and he fought it with the legal advice of prominent Washington conservatives Cleta Mitchell, D. Eric Lycan and Bradley Smith.
“We have a situation where investors, if they have an opinion that radicals don’t like, could be targeted,” said Gilbert. “I’m honestly shocked that the three Democratic commissioners voted against this and against settled law. And obviously, I think the American people would be better off had they seen my film.”
Conservatives have celebrated the decision and shared Gilbert's confusion that it took so long. “Freedom of the press isn't so free when three government commissars vote to punish a filmmaker for distributing a documentary film,” said Lee E. Goodman, a Republican commissioner, in a friendly interview with the Washington Examiner. “Conservative documentary films have faced tough sledding at the FEC, no matter how the films are distributed.”
But the decision itself is a muddle, noting that Gilbert's attorneys compared the direct mail release to the campaign for "The Passion of the Christ," yet foundering on the question of whether a campaign like that exempts donors from scrutiny.
"Although the current record before the commission does not conclusively resolve to what extent the challenged distribution strategy may have marketed and promoted the film — that is, legitimate press activity — there is fair reason to conclude that the undertaking was a marketing effort," write the commissioners. "And to answer that question definitively may require substantial investigation into the business judgment of the media entities involved, an inquiry at odds with the interests that the exemption protects."
Collins, not shocked at that conclusion, worried that a future campaign might copy it. "It was an overt attempt to affect the voter base, and it’s been regulated that way since the 1970s," he said.
No Republican or conservative group has seized on the decision yet, but it's hardly a secret. Lycan, who helped Gilbert make his case, is the treasurer of the pro-Ted Cruz PAC Stand for Truth, which has specialized in digital and radio ads.
Update: This article originally and erroneously described Collins as a "progressive." He is not.