Federal Election Commission Advisory Opinion Number 2003-34
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CERTIFIED MAIL December 19, 2003
RETURN RECEIPT REQUESTED
ADVISORY OPINION 2003-34
Jan Witold Baran, Esq.
Wiley, Rein & Fielding, LLP
1776 K Street, N.W.
Washington, D.C. 20008
Dear Mr. Baran:
This responds to your letters dated October 16 and October
29, 2003, requesting an advisory opinion on behalf of Viacom,
Inc. ("Viacom"), its wholly owned subsidiary, Showtime Networks,
Inc. ("Showtime"), and TMD Productions, Inc. ("TMD"), concerning
the application of the Federal Election Campaign Act of 1971, as
amended ("the Act"), and Commission regulations to the funding,
production, airing, and other distribution of a "reality
documentary series" entitled American Candidate.
Background
You state that Viacom is a global media company. Showtime
owns and operates the Showtime television network. Showtime has
contracted with TMD to produce American Candidate. Neither
Viacom, Showtime, any of their corporate affiliates or
subsidiaries, nor TMD is owned or controlled by any political
party, political committee or candidate.
Showtime intends to produce and distribute a fictional
depiction of a presidential campaign entitled American Candidate.
American Candidate will simulate a presidential campaign
involving American citizens who compete in a series of events
designed to test their political skills while being filmed over a
three-to-four month period. You assert that the program will
serve as social commentary on the American political system as
well as political leadership and character in America in an
"entertaining reality format."
You assert that the contestants will not be actual
candidates and will not be "testing the waters" for a candidacy
for public office. Each potential contestant must sign a release
that provides that he or she will be automatically disqualified
from participation in the American Candidate series if the
contestant becomes a candidate or explores an actual candidacy
for any public office. Contestants may be depicted soliciting
donations to charitable organizations; all such donations would
be donated directly to the charities. There will be no
fundraising related to actual Federal candidates, officeholders,
or committees. Also, each contestant will be prohibited from
receiving any monetary contributions to his or her American
Candidate campaign.
It is possible that the series will depict actual Federal
candidates on the campaign trail, and include appearances by
Federal candidates to enhance the competition between the
contestants. These appearances, as well as reactions by the
contestants or other guest commentators, may include references
to actual Federal officeholders or candidates, again in the
context of engaging the contestants in a realistic simulation.
Viacom and Showtime will operate two websites related to the
American Candidate series. The first website will serve as an
"application website" featuring contestant application forms,
entry rules, other contestant related materials, and press
releases promoting the series. The second website will serve as
the "series website." The websites will be used to promote the
series, feature the contestants, track the series and provide
updates, and educate the public about actual political campaigns.
Each of the final contestants may be provided a personalized page
on the series website to advertise his or her simulated campaign
and interact directly with viewers and fans.
Legal Analysis and Conclusions
You ask several questions pertaining to the application of
the Act and Commission regulations to the American Candidate
series. Under the factual circumstances described in your
request, the Commission concludes that the series, a work of
fiction that is not intended to influence a Federal election, is
generally not subject to regulation under the Act. Thus,
editorial and production decisions, including such decisions as
with whom to consult and to employ in the production of the
series (e.g., the selection and use of consultants and advisors),
are outside the scope of the Act.
To the extent that an actual Federal candidate or
officeholder is depicted or discussed in the series as it is
promoted, broadcast, cablecast, or webcast, including depictions
or discussions that constitute "express advocacy," the Commission
concludes that there will be no contribution, expenditure, or
electioneering communication under the "press exemptions." 2
U.S.C. 431(9)(B)(i), 434(f)(3)(B)(i). The Act prohibits "any
corporation whatever" from making any contribution or expenditure
in connection with a Federal election. 2 U.S.C. 441b(a). The
Act and Commission regulations define the terms "contribution"
and "expenditure" to include any gift of money or "anything of
value" for the purpose of influencing a Federal election.
The Act and Commission regulations exempt from the
definition of "contribution" and "expenditure":
Any cost incurred in covering or carrying a news
story, commentary, or editorial by any broadcast
station (including a cable television operator,
programmer, or producer), newspaper, magazine, or
other periodical publication, is not a contribution
[or expenditure] unless the facility is owned
or controlled by any political party, political
committee, or candidate . . .
11 CFR 100.73 and 100.132; 2 U.S.C. 431(9)(B)(i). The Act and
Commission regulations also include a similar exemption at 2
U.S.C. 434(f)(3)(B)(i) and 11 CFR 100.29(c)(2) with respect to
electioneering communications, which would otherwise be
prohibited by a corporation.
Several factors must be present to conclude that the
proposed activity falls within the press exemption of 2 U.S.C.
431(9)(B)(i) and 434(f)(3)(B)(i). First, the entity engaging in
the activity must be a press entity as described by the Act and
Commission regulations. See Advisory Opinions 2000-13, 1998-17,
1996-48, 1996-41, 1996-16 and advisory opinions cited therein.
Furthermore, an application of the press exemption depends upon
the two-part framework presented in Reader's Digest Association
v. FEC, 509 F.Supp. 1210, 1215 (S.D.N.Y. 1981): (1) Whether the
press entity is owned or controlled by a political party,
political committee, or candidate; and (2) Whether the press
entity is acting as a press entity in conducting the activity at
issue (i.e., whether the entity is acting in its "legitimate
press function"). See also FEC v. Phillips Publishing, 517
F.Supp.1308, 1312-1313 (D.D.C. 1981); Advisory Opinions 2000-13,
1996-48, and 1982-44.
The Commission concludes that the requestors are press
entities, are not owned or controlled by a political party,
political committee, or candidate, and that American Candidate is
"commentary," within the meaning of the Act and the regulations.
If the American Candidate series is produced as indicated in your
request, Viacom, Showtime, or TMD will be engaging in a
legitimate press function. See Reader's Digest Association, 509
F.Supp. at 1215.
Therefore, to the extent that actual Federal candidates or
officeholders are depicted or discussed in the series or the
websites, no contribution or expenditure will result from
payments for the production (including payments received for
"product placements"), promotion, distribution, or licensing of
rights, even if statements that expressly advocate the election
or defeat of a clearly identified Federal candidate are included.
2 U.S.C. 431(9)(B)(i). Similarly, no broadcast or cablecast of
the series will constitute an electioneering communication. 2
U.S.C. 434(f)(3)(B)(i).2
This response constitutes an advisory opinion concerning the
application of the Act and Commission regulations to the specific
transactions or activities set forth in your request. See
2 U.S.C. 437f. The Commission emphasizes that, if there is a
change in any of the facts or assumptions presented, and such
facts or assumptions are material to a conclusion presented in
this opinion, then the requestor may not rely on that conclusion
as support for its proposed activity. The Commission does not
undertake a constitutional analysis in this advisory opinion,
since its interpretation of the press exemptions at 2 U.S.C.
431(9)(B)(i) and 434(f)(3)(B)(i), themselves clearly drawn with
the First Amendment in mind, provide sufficient guidance.
The Commission expresses no opinion regarding the
applicability of the Communications Act of 1934, or of
regulations promulgated by the Federal Communications Commission,
to the
the proposed activities because those questions are outside the
Commission's jurisdiction.
Sincerely,
(signed)
Ellen L. Weintraub
Chair
Enclosures (AOs 2000-13, 1998-17, 1996-48, 1996-41, 1996-16, and
1982-44)
_______________________________
1 The Commission assumes, without deciding, that TMD is a press
entity. However, even if it is not, it is the type of production
company that press entities typically employ for the purposes of
creating documentaries and other informational content,
especially where, as here, final editorial discretion rests with
an entity that is a press entity.
2 If, notwithstanding a contestant's agreement to the release, a
contestant explores an actual candidacy for public office, then
funds received and payments made by the contestant solely for the
purpose of "testing the waters" may be excluded from the
definitions of "contribution" and "expenditure." 11 CFR 100.72
and 100.131. However, if a contestant becomes an actual
candidate or makes public statements to that effect, then the
exceptions in 11 CFR 100.72 and 100.131 will not apply. Only
funds permissible under the Act may be used for the "testing the
waters" activities permitted under 11 CFR 100.72 and 100.131.
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BOKE : american candidate META ENTRANCE
2ND SONNET TO candidate-zero
AmCan Sham - (SHOWTIME)
416+ American Candidate{s}
Crunch-time for R.J. Cutler (filmmaker)
Relaxed Robert Greenblatt (Showtime Mucky-Muck)