Ever since the calendar flipped into 2011, we the people have been flooded with half-headlines about Republican candidates-in-waiting who may or may not be running for president in 2012. And now that Barack Obama has (surprise!) announced his intention to run for re-election, people are more interested than ever to learn who might be opposing him.
Because no one necessarily wants to be the first out of the gate — and therefore, perhaps, the first subject to stringent regulations governing candidates for federal office — the statements have been comically non-committal, if not borderline impossible to parse. Last month, Newt Gingrich declared that he was “excited about exploring whether there is sufficient support for my potential candidacy for president of this exceptional country.” (Super.) A couple weeks ago Tim Pawlenty boldly declared on Piers Morgan Tonight, “I’m running for president!” — after which his spokesman announced that no decision had been made, and that Pawlenty’s people had “expressed our displeasure” with CNN for “report[ing] the full quote out of context.” (Thanks for clearing that up.) Obviously, we can assume that any presidential announcement is “not intended to be a factual statement.”
But no one has played the game of am-I-or-aren’t-I-running better than Donald Trump, whose presidential ambitions have been the subject of rampant speculation since last fall. Trump has made many comments about his potential Presidential bid, and has even been endorsed by Gary Busey (umm…good for him?). Last Friday, Trump’s spokesman made the following announcement:
On the May 22 season finale of Celebrity Apprentice, Mr. Trump may announce the time and place of a press conference at which time he will make a statement as to whether or not he will run for president of the United States.
In other words, on April 15, Trump announced that, on May 22, he may announce the future time and date at which he may announce that he’s running for president (in an election that’s taking place 19 months from now). It was an announcement of a potential announcement about another announcement. I’m not certain, but this may have ripped a hole in the space-time-logic continuum.
But this is an entertainment law blog, not a political blog. So I won’t use this blog post to poke fun at
Donald Trump Republicans our political system (Jon Stewart and Stephen Colbertdo such a good job already). Instead I’m going to talk about how The Donald’s candidacy would affect his hit reality TV show, The [optional: Celebrity] Apprentice. (The same issue would have arisen with Sarah Palin’s Alaska had that show not been — *emo tear* —canceled after its first season in January. And people say Americans have no taste in television.)
The so-called “equal time rule” (Communications Act of 1934, § 315(a)) requires that if one candidate receives free airtime from a television or radio station, the station must offer equivalent time to competing candidates as well. As with any law, there are exceptions: this rule doesn’t apply to a “(1) bona fide newscast, (2) bona fide news interview, (3) bona fide news documentary (if the appearance of the candidate is incidental to the presentation of the subject or subjects covered by the news documentary), or (4) on-the-spot coverage of bona fide news events (including but not limited to political conventions and activities incidental thereto).” In other words, a candidate can appear on a newscast, news interview or live coverage of news events, or on a news documentary whose main focus is not the candidate, without the station having to then offer equal time to other candidates. Sadly for Trump and NBC, there is as yet no exception for “bona fide reality TV program featuring the candidate.”
Since The Donald is the linchpin of The Apprentice, NBC, which otherwise would be likely to order another season, is understandably wary of the possibility of having to offer weekly time to President Obama and the other candidates to compensate for Trump’s weekly show. (Though that frankly might not be the worst strategic decision NBC ever made. Personally I think Jimmy McMillan is a prime candidate — pun intended — for a reality show. Or maybe all the candidates could compete Apprentice-style for the position?) As the New York Times has reported, several different possibilities for the fate of The Apprentice have been discussed, including taping the show this summer and holding it until Trump’s fate is decided; substituting a new boss for Trump (I have some ideas for possible bosses; NBC, are you listening?); or having Trump’s children continue to participate in the show in his absence.
The latter option may be seen as just an end-run around the rule and might lead to other candidates requesting time for them or their children; then again, candidates have not always been as quick to demand equal time as you might expect. (Recall the spate of SNLappearances in 2008 by John McCain and Sarah Palin for which there was no equivalent participation by then-Senator Obama.) But a quick comedy sketch is one thing and a weekly hour-long program is another, so NBC is unlikely to take that risk (even for the prospect of 1.3 million viewers). In the meantime, NBC is waiting to see what happens, hoping that the talk of the presidency is just “Donald being Donald.” And we at Law Law Land can spend that time pondering whether we’d rather see The Donald making speeches like this or like this.