FEC draft opinion to Di Iorio: Your campaign can be reality show, but not for pay

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FEC spokeswoman Judith Ingram says the FEC issued a draft of the advisory opinion, subject to a vote by the FEC commissioners, that is being made available for comment until 9 a.m. Wednesday. That correction will be noted below.

The FEC today issued a draft of an advisory opinion, subject to a FEC commissioner vote, saying that Nick Di Iorio, the Republican candidate challenging Rep. Carolyn Maloney (D-Manhattan), can appear in a reality show about his doomed campaign for office, but neither he nor his campaign manager can be paid for it.

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In a merging of politics and entertainment, Di Iorio and his campaign manager, Joseph Shippee, earlier this month asked the Federal Election Commission for a ruling on whether they could appear in a reality show and whether they could be paid the same amount other reality show performers get.

Reached by phone, Shippee declined to comment on the draft opinion and on whether he and Di Iorio will challenge or seek modification of it. He called back and said the campaign would be releasing a press release about it tomorrow.

The opinion is subject to further revision, said election law attorney Brett Kappel of Arent Fox in an email. He said the biggest hole in the ruling is the failure of the FEC to discuss the timing of payments to Di Iorio and Shippee.

"The candidates for this reality series were chosen because they are long-shots who will almost certainly lose. Once they lose, they will no longer be candidates," Kappel said. "So how could the salary be a contribution if it wasn't received until after the campaign is over?"

Di Iorio already has signed a deal with the producers of the show, which will move forward only if the Esquire Network picks it up, according to FEC summaries of conversations with Shippee. Arrangements for paying Di Iorio and Shippee at the same rates of other reality show stars are pending. 

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The reality show series, which would feature Di Iorio’s campaign and another campaign with a slim-to-none chance of succeeding, would not air until after the election. The other campaign has not been identified, but there's got to be a lot of them that qualify. The FEC draft opinion said that meant Di Iorio would not be getting material support from it for his campaign.

That could be debatable. Kappel said people might show up at Di Iorio's rallies just because they are being filmed for later showing. 

In okaying the idea of a reality show based on a campaign, the FEC draft opinion said the Esquire network qualified as a press operation because its not owned by a candidate or a political party or committee, and that it would be carrying out a “legitimate press function.”

The FEC draft opinion defined the show as a “legitimate press function”  because the material would be made available to the general public and it would be comparable to Esquire network’s other reality shows. Those shows include: “Risky Living” about people in the “competitive world of New York’s nightlife real estate;” “American Ninja Warriors,” about competitors on the “world’s most difficult obstacle courses,” and “Alternate Route,” about a photojournalist who “hits the road in search of people, places and objects that embody the timeless American spirit.”

Finally, the FEC draft of an advisory opinion said that Di Iorio and Shippee cannot be paid for the reality show because FEC regulations say a candidate and committee staff can only be paid compensation that is “genuinely independent of the candidacy.” As the FEC noted, “To the contrary, the candidate and his staff were asked to appear on the reality television show specifically because of Mr. Di Ioro’s candidacy.”

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