Stephen Colbert: The College Years

Stephen Colbert believes in the American dream . "And that dream is simple, he says. "That anyone, no matter who they are, if they are determined, if they are willing to work hard enough, someday they could grow up to create a legal entity which could then receive unlimited corporate funds, which could be used to influence our elections.”

Friday's trip to the Federal Election Commission may have looked like a stunt, but behind it is a very real, and interesting advisory opinion request that's worth a few moments to consider.

First, a step back. Last year yielded two major court decisions on political activity -- Citizens United, which got all the press, held that the Constitution forbade restrictions on corporations spending their own money on speech in support of a candidate when the spending isn't coordinated with or given directly to the candidate's campaign.

The other decision was SpeechNow.org v FEC, a DC Circuit en banc decision two months later. (The Obama administration did not appeal, and the Supreme Court denied certiorari on SpeechNow's efforts to expand its win further.) That decision held that the the same right which individuals had in spending their own dollars independently on speech in support of candidates applied to groups of individuals as well, and those groups could form political action committees together with no limit on contributions so long as these committees never gave money to, or coordinated their activities with, federal candidates. (They do have to report their contributions and expenditures to the FEC just as non-super-PACs do.) Combined with Citizens United, this meant that corporations, too (as well as labor organizations, other PACs and private individuals) could directly contribute unlimited sums to these so-called "SuperPACs," such as Karl Rove's American Crossroads.

And Stephen Colbert wants a SuperPAC of his own.

The basic question posed by his advisory opinion request is straightforward, especially for folks here with long memories: if you're deemed to be "press," then what you do doesn't count as a contribution or expenditure for campaign finance law purposes. Your editorials aren't considered in-kind (or illegal corporate) contributions, you can urge support for and fundraise on behalf of candidates, etc., without being burdened by reporting laws at all. Political blogs, including this one, fought for and won the right to be treated equal to tv, radio and print media under this exemption back in 2005-06.

So, Colbert asks, does the Colbert Report count as media too? Because if it does, then the airtime and other costs associated with any shows on which he promotes his hypothetical SuperPAC wouldn't be considered contributions from Comedy Central’s parent company, Viacom, and would be exempt from campaign finance rules and disclosure requirements. In other words, not only would he be able to promote the PAC on-air; he wouldn't even have to list all the forms of Viacom in-kind contribution at all. As Colbert's lawyer, former FEC Chairman Trevor Potter explained on-air:



Potter explained to Colbert that Viacom is likely skittish that if their airtime or administrative costs are “counted as a contribution, they would have to show it on the FEC reports. There might be a complaint or an investigation about whether they showed enough and they would have to turn over their internal bookkeeping and potentially reveal Viacom secrets.” “Why does it get so complicated to do this,” Colbert said. “I mean this is page after page of legalese. All I’m trying to do is affect the 2012 election. It’s not like I am trying to install iTunes.”

If the request is granted to approve this activity, then Colbert could promote the Colbert Super PAC on the show whenever he saw fit, fundraise for it on air, employ his staff to assist in its efforts, use the show to launch any candidate ads his SuperPAC produces, operate it without much regulatory burden, and could (as the request states) also “pay usual and normal administrative expenses, including but not limited to, luxury hotel stays, private jet travel, and PAC mementos from Saks Fifth Avenue and Neiman Marcus.”

Honestly, it's difficult to think of a reason why this request won't be granted under current campaign finance law. Stephen Colbert has these First Amendment rights, and Viacom can make such contributions as a legitimate press activity. So can KosMedia LLC, for that matter. Or Rupert Murdoch's News Corporation, at which point this may stop seeming so funny ...