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When Candidates Script TV Shows:

Politico reports that comedian-turned-Democratic Senate candidate Al Franken "phoned in" Saturday Night Live's opening sketch lampooning Senator John McCain's campaign ads criticizing Senator Barack Obama.

n SNL insider said that, as of the Wednesday script read-through, Franken was the "credited writer with Meyers" on the opening sketch. . . .

A Franken campaign aide said the candidate had been taping an ad earlier in the week and had wondered out loud how McCain could include the disclaimer candidates are required to include in their commercials — "I'm John McCain, and I approved this message" — when his spots were so "over the top."

Later that day, Franken talked to Michaels about topics unrelated to the show and mentioned his thought but did not suggest a sketch.

However, Michaels talked to Meyers about Franken's idea and the current writer, believing there was a funny sketch there, called his predecessor and they discussed it further.

The sketch was certainly amusing, but it also reinforced the Obama campaign's meme that the McCain campaign is running egregiously misleading campaign ads. SNL is certainly free to run whatever sorts of skits it likes, from whatever perspective, but I wonder whether there are any legal implications to this particular skit given that it was suggested, if not actually scripted, by a political candidate running for office. While Senator McCain is not Franken's opponent, one could argue that Franken would benefit from attacks on McCain insofar as they result in more votes for Democratic candidates. Programming written or outlined by Franken could be viewed as tantamount to free advertising on his, or the Democratic Party's, behalf. On the other hand, had the exact same spoof been written without Franken's participation, there would clearly be no legal issue at all.

To flip the scenario around, imagine if a Republican Senate candidate scripted a sketch attacking a Senator Barack Obama for a conservative talk radio host. The content might not be much different than what one usually finds on Rush Limbaugh, Glenn Beck, or some other program, but the direct involvement of a candidate might raise legal questions. Would this be tantamount to offering free advertising under existing campaign finance laws? Or would it simply be treated as the usual conservative talk-radio fare? Without the Fairness Doctrine, radio programs are free to interview some candidates more than others. Should other content be treated differently? I'd be curious to hear what VC readers think about this.

Nate in Alice:
SNL also lampooned the NYT staff for being out of touch and snobbish w/r to Sarah Palin.
9.22.2008 12:14am
Nah (mail):
This was a creative expression on Franken's part. He created a product - satire - that SNL wanted to use to make money. I don't see the legal implications here. Just because he's a democratic candidate shouldn't impede his ability to do what he does best.

I think the "free advertising" problem would be more acute if Franken, through his SNL connections, had somehow persuaded them to run free ads for democratic candidates.
9.22.2008 12:14am
OrinKerr:
JA,

How is this different from a news program giving candidate Al Franken interview time to bash McCain? I don't see what's different if instead letting a candidate give scripted answers, they let a candidate actually help write the script. My 2 cents, anyway.
9.22.2008 12:21am
one of many:
Nah,

except that he is a candidate in a federally regulated election with all the restrictions that entails. No question, if the FEC could rule on issues for this election he would have to report it as an in-kind contribution and perhaps be subject to a fine under the old regime. Big however though, the FEC was ordered to rewrite the coordination rules about 2 months ago and have not done so (I believe they are appealing what is the umpteenth Shays case ruling which required it) and there is no telling what the law now will eventually be decided to be.
9.22.2008 12:27am
T. Truman (mail):
Would it make a difference if he was paid for the writing credit?
9.22.2008 12:31am
JB:
To flip the scenario around, imagine if a Republican Senate candidate scripted a sketch attacking a Senator Barack Obama for a conservative talk radio host.

Except SNL is not avowedly partisan. Your analogy is off, but I think that makes this particular incident even more troubling.
9.22.2008 12:47am
Calculated Risk:
First off. That skit was hilarious. That is objective fact.

What is the alternative? Censorship? SNL can't go with the idea of a skit, because it originates with a Senate candidate? Does that make any sense at all? That will take hilarious creativity, whatever the source.

I am a rabid left-wing bloodsucking puppy-hating liberal, but I am nonpartisan when it comes to humor. The more the merrier, and I don't care where it comes from. I think it would be a tragedy if any particular idea had to be censored because of the origin of that idea.
9.22.2008 12:52am
The Ace:
If TMZ and Howard Stern qualify for the a" bona fide news and commentary" program exception, then certainly SNL does. NO legal problem here at all.
9.22.2008 12:53am
HoyaBlue:
OrinKerr:

Well, is it? And if it is......who cares? Who says they can't do that?

Since when does running for one office require that a person lose all forms of opinion and personal judgment?

Al Franken the Candidate is still allowed to be Al Franken the Entertainer. he can make statements and work as a private individual.

If it had been against his opponent, yes. That would be an issue. But he didn't. He wrote a sketch about a candidate for an entirely different public office.
9.22.2008 12:59am
one of many:
What is the alternative? Censorship? SNL can't go with the idea of a skit, because it originates with a Senate candidate? Does that make any sense at all? That will take hilarious creativity, whatever the source.

The usual alternatives are Franken pays SNL ad rates for the skit and a fine OR SNL (the production company actually) considers it an in-kind contribution and it gets written into the books as a contribution, although I think the latter is out (too large a contribution).
9.22.2008 1:00am
one of many:
HolaBlue,
and Fred Thomson can still get residuals from Law &Order episodes and Newt Gingrich can still sell books and so on. But they cannot, because if you allow them to do so it is too easy for someone to bypass the contribution limits with fake hiring of candidates to promote them in the media.
9.22.2008 1:03am
richard cabeza:

What is the alternative? Censorship?

I find that statement strange. Perhaps your sentiment originates from a case of projection, since I can't trace any revealed motivation behind it to reality.
9.22.2008 1:10am
EH (mail):
Is the content of the writing at issue here? McCain himself was on SNL in May, so I'm curious where a line would be drawn.
9.22.2008 1:38am
Glenn W. Bowen (mail):
I worked on Franken's sitcom, "Lateline", for it's duration, about six months or so. I was on set every day.

I was getting in a cab one morning about a year after the show was canceled- back then in NYC when you got in a taxi, a recorded message came on with a celebrity reminding you to use your seatbelt. This particular morning the recording had Franken featured as the celebrity. After the message ended I tapped the driver on the shoulder and said, "You know, I worked with that guy every day for six months, and this is the first time the son-of-a-bitch ever said hello to me."
9.22.2008 1:39am
Mac (mail):

but it also reinforced the Obama campaign's meme that the McCain campaign is running egregiously misleading campaign ads.



Yes, they are. And, so is the Obama campaign. I, too, wonder if it is against the campaign laws. I don't know and I rather hope it is not, but I do wonder.


I am a rabid left-wing bloodsucking puppy-hating liberal, but I am nonpartisan when it comes to humor. The more the merrier, and I don't care where it comes from. I think it would be a tragedy if any particular idea had to be censored because of the origin of that idea.


Calculated Risk,

Then you would oppose any effort to censor Rush Limbaugh?
9.22.2008 1:40am
OrinKerr:
HoyaBlue,

I'm confused; are you agreeing or disagreeing with me? Just to be extra clear, I think it was fine that Franken did what he did, just like it would be fine if a news program gave Franken interview time.
9.22.2008 1:44am
Bill Dyer (mail) (www):
Sunlight is an adequate disinfectant here. The Franken campaign (and its principal) are to be criticized for being cute in their initial denials. But now that his role has been disclosed, then people can make what of it they will. In particular, if the voters of Minnesota want a shrill buffoon like Franken to represent them -- knowing what this episode reveals about his priorities and the sincerity (or lack thereof) of his previous assurances that he's now a serious grown-up -- then such is their choice, and they'll get what a majority of their voters deserve.
9.22.2008 1:49am
gerbilsbite (mail):
What if Franken had written a sketch about the economy--it seems as if a sentiment that the economy is doing poorly benefits Democrats. Does that cross your line?

What if Franken had written a sketch about ludicrous prices for health care, since health care is one of the strong Democratic issues?

As long as the sketch doesn't involve his race directly, I don't think you can really pick any legitimate bones with it.
9.22.2008 2:03am
Glenn W. Bowen (mail):
Franken- on this score, professionally, he should have left it alone.

Matter of decorum, and only that; makes him look small and mean-minded (which I find him anyway). But then other things he's done have also, none of which were breaches of anything legal, and arguable as to taste, etc.

This guy squandered a Harvard education to be a gag writer- I guess he wanted to be his generations Dick Cavett, but he weighed too much.
9.22.2008 2:19am
Glenn W. Bowen (mail):

none of which were breaches of anything legal


actually, some were- his state-to-state taxes that weren't paid, and I believe some sort of problem with employee's workmans comp, IIRC.

But those incidents aren't germane in this instance.
9.22.2008 2:23am
mb88:
Glenn W. Bowen: "This guy squandered a Harvard education to be a gag writer- I guess he wanted to be his generations Dick Cavett, but he weighed too much."

Gosh, I imagine Franken did a lot better than a lot of Harvard grads. Had a successful career writing for SNL, appeared on other TV shows, had his own radio show, and is now running for Senate. I don't particularly like the guy, but there's much less you could do with a Harvard education. Shame for all those people who squander their degree even more than Franken has.
9.22.2008 3:33am
_ben (mail):

I am a rabid left-wing bloodsucking puppy-hating liberal,


And the sky is a bluey bluish blue shade of blue...

but I am nonpartisan when it comes to humor. The more the merrier, and I don't care where it comes from. I think it would be a tragedy if any particular idea had to be censored because of the origin of that idea.


And you know what, we conservatives all agreed with that. We said, "don't regulate political speech!" The whole campaign finance reform crap was and still is a big sticking point between conservatives and McCain. But ultimately, it was you lefties and the MSM that pushed hardest for these rules, so don't blame this crap on us.
9.22.2008 4:00am
Ralphe (mail) (www):
From where I sit Franken has not been funny in any normal sense of the word for at least a couple of decades. That being said, so long as his name is stated as a writer on any skit he authors, fine by me.
9.22.2008 4:08am
Smokey:
Let's put Michelle Malkin and Ann Coulter on SNL and let them bash 0bama to their heart's content.

Hey, it's just entertainment, right? Right??

Ri-i-i-i-i-ght.
9.22.2008 4:14am
eyesay:
Smokey: 0bama? Are you calling Obama a zero? Clever, not.
9.22.2008 4:50am
richard cabeza:
Laws regulating campaign speech are malicious abridgements of the restrictions of government power outlined in the Constitution, but if they're ignored then they become even more dangerous political tools than they are on their face -- selective enforcement is tyrrany (in much the same way as artificial scarcity, which causes destructive rent seeking).


let them bash 0bama to their heart's content


Haven't you heard? Obama's so normal that they can't find anything to make fun of. Of course, that means that only racists laugh at him. And only a racist would describe this situation with the phrase tarbaby. There couldn't be any possible lesson behind some so-called "fable" that could excuse such language. Enlightened people close their minds to such narrow ideas.
9.22.2008 5:58am
Glenn W. Bowen (mail):

Gosh, I imagine Franken did a lot better than a lot of Harvard grads. Had a successful career writing for SNL, appeared on other TV shows, had his own radio show, and is now running for Senate. I don't particularly like the guy, but there's much less you could do with a Harvard education. Shame for all those people who squander their degree even more than Franken has.


Hey!! Lay off a disgruntled employee.
9.22.2008 6:05am
Franklin Drackman:
I'm a McCain voter but still thought it was pretty funny. Always loved that Sarcastic voice over you only hear at election time. It might have backfired, as they did repeat some anti-Obama points people might not have heard otherwhise. Can't believe they didn't say he's a Muslim.
9.22.2008 9:08am
Martinus (mail) (www):
I stopped watching SNL when I was about 12, when I suddenly realized I was smarter than the majority of their skits.
9.22.2008 9:15am
Sk (mail):
My Opinion:
it may be against Campaign Finance Laws (I have no idea). Which illustrates how absurdist and anti-constitutional the current Campaign Finance Laws are.

Sk
9.22.2008 10:34am
monboddo (mail):
the Obama campaign's meme that the McCain campaign is running egregiously misleading campaign ads



I don't think that word means what you think it means...
9.22.2008 10:46am
A.W. (mail):
I think it can't possibly violate the campaign finance laws, and thus this proves how pointless it is to try to regulate the whole area. The fact is Frankin &co. gave an "in kind" contribution to the Obama campaign that night. I mean, my God, Obama has put out an ad claiming that McCain agrees with Limbaugh on immigration, and the liberals are pretending McCain is the liar here?

But the first amendment prevents this from being regulated, and rightly so. Which demonstrates the futility of the whole concept of campaign finance reform.

I say the only thing the govt. can and should do on the subject is require full disclosure. But literally nothing else should be allowed. No contribution caps, no banning of corporate donations no nothing. Period.
9.22.2008 11:15am
Michael B (mail):
Rather more interesting and certainly more revealing is this investigative report: Hope, Change, & Lies: Orchestrated "Grassroots" Smear Campaigns & the People that Run Them. Too extensive to excerpt beyond a couple of tell-tale indicators:

This same voice-over artist has worked extensively with David Axelrod's firm, which has a history of engaging in phony grassroots efforts, otherwise known as "astroturfing."

Also,

This suggests that false rumors and outright lies about Sarah Palin and John McCain being spread on the internet are being orchestrated by political partisans and are not an organic grassroots phenomenon led by the left wing fringe. Our findings follow.

And under the heading of VIOLATION OF FEC RULES?,

Federal election law requires that a disclaimer from those paying for campaign ads, "must appear on any "electioneering communication" and on any public communication by any person that expressly advocates the election or defeat of a clearly identified candidate or solicits funds in connection with a federal election."

Finally,

UPDATE: Within an hour of this post going up, YouTube videos implicating Ethan Winner were yanked, sockpuppet accounts deleted, and more importantly, the Wikipedia entry on David Axelrod began to edit out mentions of his well know astroturfing campaigns. Hmmm, it sounds to me like we're on to something.

"Change," again reliant upon the politics of fear via Obama, Axelrod & Winner, Inc. astroturfing initiatives.
9.22.2008 11:30am
A.W. (mail):
Wikipedia was changed?

Wow, its almost like you can't trust it. Who knew?

/sarcasm
9.22.2008 11:56am
Floridan:
Michael B: "certainly more revealing is this investigative report"

Very impressive report, especially the following: "Our research suggests", "most likely", "It is also likely", "While not conclusive", "Evidence suggests", "This suggests", "In our opinion", "appears ", "has a ring of familiarity to it", "If we are correct", "what appeared, in our opinion,", "We can't help but wonder", "We also can't help but wonder", "We assume", "it certainly appears", "What appears,in our opinion" "It looks like", "appears to have been" and so on.

Very definitive.
9.22.2008 12:09pm
He's still funnier than Coulter:
I will say it is very meta of Franken to run for office after he wrote the book "why not me?" which was a satire on national campaigning. I found it pretty funny; less shrill than his earlier "Rush Limbaugh is a big fat idiot" book...
9.22.2008 12:18pm
Buck Turgidson (mail):
Given the fact (yes, fact) that even usually sycophantic media has been turning away from McCain (e.g., Joe Kline and Richard Cohen used to sing praises to McCain, but both have turned on him), there is certainly no problem with SNL airing the skit. According to all published sources, Franken did not write the script but simply planted the seed that was developed by the current crop of SNL writers. The skit did not mention Franken, gave him no credit and in no way affected his campaign. And Franken was not paid for the product. What exactly are the potential "legal issues" here? There is no legal restriction on candidates supporting other candidates or their party--they just can't do it as quid pro quo or coordinate the return messages. And Franken got no actual benefit--not even a referral or shout-out--from the show. The only reason his name came up was because of rumors and press reports (just like Fred Thompson's name came up on this blog when the legal implications of broadcast of his Law &Order episodes were being discussed). The bottom line is, Jon, you're howling at the moon here. I'd be much more concerned when a TV show interviewing a candidates coordinates the interview script with the campaign. Did Hannity do that with Palin? Just asking...
9.22.2008 12:30pm
HoyaBlue:
OrinKerr,

I misinterpreted you. In that case, I agree with you.
9.22.2008 12:58pm
PLR:
In the print media, the cartoon Mallard Fillmore is a nationally syndicated daily campaign ad for the GOP.

That is not to say it's an effective ad, I think Tinsley at this point may have slandered just about every voter in America except for Republicans currently holding office.
9.22.2008 1:23pm
Arkady:

SNL is certainly free to run whatever sorts of skits it likes, from whatever perspective, but I wonder whether there are any legal implications to this particular skit given that it was suggested, if not actually scripted, by a political candidate running for office.


McCain on SNL (May 17, 2008):


"Good evening, my fellow Americans,'' Mr. McCain said in a political ad parody on this Saturday's show. "I ask you: what should we be looking for in our next president? Certainly, someone who is very, very, very old."

Mr. McCain, the presumptive Republican nominee, then segued into a riff on earmarks, the pork barrel spending projects that he denounces almost daily on the campaign trail. Mr. McCain proudly said he had sought not a single earmark for his home state of Arizona, including highways. "When I entered the Senate in 1987, Arizona had 47,000 miles of paved roadway,'' Mr. McCain said. "Today it's less than 900.''

[Source]



Now that stuff is funny. And I'm pretty sure that "it was suggested [if that rankles, substitute 'approved'], if not actually scripted, by a political candidate running for office". And I can't see anything wrong, or illegal, with his being on SNL and delivering those lines. For better or worse these TV shows (SNL, The Daily Show, Colbert, Leno, etc.) are the modern version of the Greek agora, where, as Plato had Socrates say, one can find every manner of constitution (political argument) being hawked.
9.22.2008 1:49pm
one of many:
Is the content of the writing at issue here? McCain himself was on SNL in May, so I'm curious where a line would be drawn.


The line is coordination between the campaign and the organization. SNL is perfectly free to do what skits they want as long as they do not coordinate with a campaign on them. This case may or may not meet the legal definition by the FEC of what constitutes coordination, but it is certainly in a grey area.
9.22.2008 2:42pm
Arkady:

SNL is perfectly free to do what skits they want as long as they do not coordinate with a campaign on them.


But this would seem to preclude any candidate from appearing on SNL, since a candidate is a part (the head of) the campaign, no? And there certainly has to be some kind of coordination, e.g. as to lines spoken, for the appearance to go forward.
9.22.2008 3:06pm
A.W. (mail):
Arkady

Its the first amendment. No law can purport to ban it, even if it is coordinated with the campaign, period.

It just points up how useless these campaign finance laws are; all they suceed in doing is giving the msm a monopoly.

You can't take money out of politics without killing the constitution. And yeah, that would be a bad idea.
9.22.2008 3:16pm
one of many:
But this would seem to preclude any candidate from appearing on SNL, since a candidate is a part (the head of) the campaign, no? And there certainly has to be some kind of coordination, e.g. as to lines spoken, for the appearance to go forward.

To an extent but campaign coordination has a specific meaning in terms of campaign law, and when the FEC gets an enforceable definition it may very well be that this sort of thing is currently impermissible. Of course it could very well that this is not coordination with the campaign and is permissible, when it is finally decided what is campaign coordination we'll probably find out if this is illegal.
9.22.2008 6:48pm
Smokey:
eyesay:
Smokey: 0bama? Are you calling Obama a zero?
Hey, you're smarter than you look. Yep, 0bama is a complete empty suit.


PLR:
In the print media, the cartoon Mallard Fillmore is a nationally syndicated daily campaign ad for the GOP.
Um-m, let me introduce you to Doonesbury...
9.22.2008 8:33pm
Michael B (mail):
Floridan,

So, in response to this, in essence, you prefer an Olberman-esque narrative, i.e. one that affirms, definitively, your predisposed view of the world, leaving no doubt.

Got it.
9.22.2008 10:08pm
Buck Turgidson (mail):
"One",

You are making less and less sense as you go along. What is proscribed is direct coordination between a candidates campaign and an independent promotion of his candidacy or his position on an issue with specific links to the candidate. However, there is no prohibition of any sort for one candidate to promote another candidate if there is no direct coordination between the two. This attempted smear of Franken is really lame, especially given that his own campaign did not directly benefit from anything he did. He might have got exposure, but that's due to right-wing idiots who decided to publicize the story.
9.23.2008 3:29am
richard cabeza:
He might have got [sic] exposure, but that's due to right-wing idiots who decided to publicize the story.

Or maybe he's just a laughable characature of the Left. What do they say? News makes itself, the rest of us just point and laugh.
9.23.2008 3:53am
A.W. (mail):
I think it is self-evident to all but the most stubborn and blind that the media readily give in kind donations to the democrats generally. The Daily show has descended into "Democratic Talking Points... with jokes!" Keith Olberman names a worst person in the world, and it is someone other than Osama bin Laden. And on and on it goes.

And that's life. The first amendment cannot stop that. But it again shows how foolish this entier campaign finance reform enterprise is. You can never get money out of politics, and thus the only thing you can do is back away, with only a requirement of disclosure.

The problem isn't SNL but this entire project of attempting to regulate the "bad" kind of speech, like as if you can trust the government to determine which is good and bad.
9.23.2008 2:28pm
one of many:
Sorry Buck, I blame it on the clarity of the law. If you want a fuller form which is really too long for a blog comment, I'll give it.

Before getting into the law, there are previous rulings which further confuse tenses on the issue. The law causing this confusion is McCain-Feingold, or BCRA (Bipartisan Campaign Reform Act) under which the FEC has written regulations. These regulations are currently under judicial review (the 3rd? suit by Shays and some Mass. Congressman who's name I forget to clarify/overturn BCRA) and may be modified. Depending on the final ruling on these regulations one of several things may happen; the current regulations are accepted as legitimate and applicable to the current election, the current regulations are found to be contrary to BCRA and replaced with new regulations which are to be applied retroactively to all campaigns back to the passage of BCRA, the regulations are found to be not contrary to BCRA but still in need of replacement in which case the new regulations may or may not be applied retroactively to this campaign, or even the regulations may be found to be in accord with BCRA however the BCRA (in part) may be found to be contrary to the US constitution (1st Amendment) in which case the wildcard factor applies and everyone has to scramble to find out which previous election laws and regulations are still valid under the ruling and which are unconstitutional. This is further complicated by the fact that the Federal Eclection Control Act not just the BCRA amendment is the controlling law applicable to this case while the Shayslitigation has an impact upon it. In simpler terms, at some point in the future the laws in effect last week will be determined.



After confusing the primary issue of the law I can now address the case. There are 2 factors to consider in whether a media "event" is exempted from FEC's jurisdiction as a political contribution, the nature of the event and the relationship of the medium to the campaign.


This skit is well within the bounds of being a legitimate part of SNL's usual type of programing (one test perviously applied but the FEC) and thus qualifies for the press exemption to campaign contributions. The skit doesn't fall within the bounds of news reporting (another test) so it isn't covered by the press exemtion. It is in a grey area where various prior rulings are of little value in determining whether or not it is a "legitimate press function" in FEC terminology. To further complicate the matter, 4 of the 6 commissioners are new so there is no significant history to guess how the FEC will rule.

With the relationship question, we also are on open ground regardless of the outcome above. There is an open question of whether 'coordination' as encompassed by BCRA voids the press exemption. At this point in time the FEC has managed to avoid directly ruling on the issue however indirectly two(? not positive, may only be one) of the current commissioners has stated that they do not consider coordination alone to violate the press exemption, but the issue is still technically open and if a new definition of coordination comes about then the question gains new legs. If the media exemption does not apply, then the skit is not an expenditure on behalf of the Franken campaign unless there was coordination (however that is eventually defined) between the Franken campaign and the producer of SNL.
9.23.2008 5:13pm