‘American Candidate’ Back On; FEC Opinion Sought

Posted November 10, 2003 at 2:02pm

The on-again, off-again reality TV series “American Candidate” — which will feature a simulated presidential campaign with American citizens running for office — is back on and awaiting approval from the Federal Election Commission.

Showtime Networks, a subsidiary of Viacom Inc., plans to fund the series and has sought an advisory opinion from the FEC. FX took a pass on the concept last year, citing cost concerns.

Pre-eminent election lawyer Jan Baran of Wiley Rein & Fielding recently wrote to the FEC on Viacom’s behalf, stating that Showtime “wants to be sure that no aspect of such a campaign simulation will violate any provision of” federal campaign finance laws.

Part “Survivor” and part “American Idol,” the show will feature contestants going head to head plotting strategy and campaigning to garner public support — all “under the watchful eye of a camera,” Baran explained.

The contestants will receive training, assistance and advice from professional political and media consultants. At the end of each episode, viewers will vote for their favorite candidate via telephone or the Internet until only one candidate remains.

Documentary filmmaker R.J. Cutler — whose credits include political documentaries such as “The War Room” and “A Perfect Candidate” and the more recent reality shows “Freshman Diaries” and “American High” — has put together an advisory board of political experts to serve as consultants. Members include such notable personalities as one-time presidential candidate and former Sen. Bob Kerrey (D-Neb.); former Sen. Alan Simpson (R-Wyo.); American Enterprise Institute Resident Scholar and Roll Call contributor Norman Ornstein; and University of Virginia professor Larry Sabato.

Production is scheduled to begin in February 2004, and the show is expected to air on Showtime during the summer.

An advisory opinion from the FEC may take several weeks, and it is not clear how a negative opinion will affect the show.

In his letter to the FEC, Baran laid out the program’s road map and concept. The weekly episodes will feature contestants making public speeches at authentic public events and participating in staged events such as debates, press conferences, crisis simulations and psychological tests.

“They also will be filmed behind the scenes devising campaign strategies, making television advertisements, consulting with advisers, deciding upon policy positions and building public support for their candidates (on Web sites as well as public appearances) between the program’s formal staged events,” Baran wrote.

He also noted that contestants may be filmed soliciting contributions from viewers to bona fide 501(c)(3) organizations and that shows may feature a host and special guest appearances by prominent public figures.

The show also may try to include footage of actual federal candidates on the campaign trail and appearances by federal candidates “in the context of enhancing the political discussion, competition and reality of the contestants’ simulated campaign,” Baran wrote.

People interested in appearing on the show can go to AmericanCandidate.com to request an application, which will be mailed this winter. The show is expecting as many as 10,000 applications.

Contestants will not be allowed to receive any sort of financial contributions to their faux campaign and will be required to sign a legal waiver prohibiting them from being or becoming a candidate in any federal, state or local election during the production or initial exhibition of the program.

But Baran acknowledged that while the “timing of the series would preclude a federal candidacy in the fall of 2004, it is at least possible that a contestant might become the object of speculation as a potential candidate in a real election at some future time.”

Getting down to the nitty-gritty details of campaign finance law, Baran asked the FEC to clarify how it might address any potential spontaneous discussion of current federal candidates that is likely to occur in the show.

“Whether this spontaneous discussion occurs in the form of ‘express advocacy,’ an ‘electioneering communication’ or pure ‘issue advocacy’ is not predictable,” Baran wrote, adding that such commentary would be “wholly incidental to the primary purpose and message of the documentary series.”

He also asked whether production and promotion costs by Viacom Showtime constitute a contribution, expenditure or electioneering communication on behalf of any federal candidate or whether it would be considered a corporate contribution if a former contestant subsequently decides to become a federal candidate.