Advocates of reducing the power of money in politics thought they had found a champion in the unlikely person of Comedy Central’s Stephen Colbert, whose ongoing shtick about forming a political action committee brought more attention to their cause than all their press releases, testimony and legal briefs combined.
As part of his effort to highlight — and parody — the impact of a 2010 Supreme Court decision opening new avenues for corporate money in elections, the satirist plans to testify Thursday in front of the Federal Election Commission about a very real legal request he filed that would allow his planned Colbert Super PAC to push the envelope on corporate political spending.
But the joke seems to be backfiring.
Not only is the PAC joke causing headaches for those whose cause it seemed designed to help — and providing fodder for their opponents — it’s exposing Colbert to rigorous questioning from FEC lawyers and raising ethics questions for his lawyer.
“I think Colbert is trying to dramatize problems in the campaign finance world in the way that he dramatizes other things,” said longtime campaign finance reform advocate Fred Wertheimer, a longtime advocate for stricter campaign finance rules who is president of Democracy 21. “But nevertheless, the proposals here would potentially open gaping disclosure loopholes in the campaign finance laws.”
Wertheimer is so concerned about what Colbert is doing, in fact, that Democracy 21 has joined with the Campaign Legal Center, another advocacy group, to petition the FEC to reject his request because it could result in the “radical evisceration” of campaign finance rules.
If Colbert gets his way before the FEC, it could blur the lines between political money and media to an unprecedented extent.
For instance, it might enable Fox News pundit-politicians such as Sarah Palin and Mike Huckabee to use the network’s resources to boost their own political committees, assert Democracy 21 and the Campaign Legal Center in their FEC filing. It concludes: “Mr. Colbert’s ultimate goals here may be comedic, but the commission should not play the straight man at the expense of the law.”
Colbert’s PAC bit started as a parody of the PAC started by former Minnesota Gov. Tim Pawlenty to lay the foundation for his presidential campaign. But after lawyers for Comedy Central’s parent company Viacom expressed reservations about Colbert using their corporate resources — in the form of his eponymous late-night faux news show — to promote the PAC, the bit morphed into a riff on how corporations like Viacom can spend cash on politics, thanks to the 2010 high court decision in a case called Citizens United v. FEC.
“I believe the Citizens United decision was the right one. There should be unlimited corporate money, and I want some of it. I don’t want to be the one chump who doesn’t have any,” Colbert — playing the part of the blowhard conservative pundit he portrays on his nightly show — told POLITICO after personally delivering his advisory opinion request at the FEC’s downtown Washington offices last month.
Colbert was accompanied by a top campaign finance law advocate he’s enlisted to help with the request — Trevor Potter, a former FEC chairman who founded the Campaign Legal Center, helped write the seminal 2002 campaign finance overhaul known as McCain-Feingold and served as the top lawyer for the 2000 and 2008 presidential campaigns of the lead sponsor, Arizona Sen. John McCain.
Technically, the request Potter filed with the FEC asks whether Colbert would qualify for a so-called media exemption to campaign finance rules were he to use his show, its staff and its production equipment — which are considered corporate resources of Viacom, Comedy Central’s parent company— to produce and air Colbert Super PAC ads backing or opposing federal candidates.
The media exemption more traditionally allows newspapers, blogs, radio show hosts and other media outlets to support or oppose candidates in editorials and commentaries. Wertheimer’s group worries that if Colbert gets his way, more explicitly political groups would rush to try to take advantage of the provision to spend huge sums boosting or opposing candidates without publicly disclosing the expenditures.
If the FEC denies Colbert’s request, it would mean that any Viacom resources used boosting Colbert’s PAC would be considered in-kind contributions to the PAC and would have to be disclosed as such — potentially causing problems for Viacom, which has signaled it wants to stay out of PAC politics.
The FEC has a complicated, if subjective, test for determining whether an entity qualifies for the media exemption, and commission staff lawyers prepared three differing draft advisory opinions for the six commissioners to consider in response to Colbert’s request.
Two of the drafts grant Colbert wide use of the media exemption, while one concludes that any Comedy Central resources used to administer Colbert Super PAC or to produce ads that air only on other stations would have to be disclosed as corporate contributions to the PAC.
In weighing Colbert’s request, the FEC’s lawyers asked Colbert a series of specific and occasionally confrontational questions about his plans, including wondering what would happen if he dropped his super PAC shtick “because it was thought to be stale or no longer funny.”
While Colbert had some fun with the questions — having Potter read and explain them on the air last month and proclaiming: “If we get the answers we want, I promise the No. 1 objective of my PAC is to get raises for every member of the FEC” — Potter’s official written responses have, to some extent, undercut Colbert’s persona as a corporate maverick.
They reveal, for instance, that — contrary to Colbert’s claim that Viacom has “no approval over what I say” — corporate lawyers do in fact review his scripts, proposals and even subject matter “to identify legal and commercial issues and to ensure compliance with … ‘standards and practices’ for cable shows.”
The myriad legal issues raised by Colbert’s efforts have cheered opponents of strict campaign finance rules, whose arguments have been the butt of Colbert’s jokes.
“He’s doing a pretty good job unintentionally of educating people on just how silly and burdensome a lot of these laws are,” said Sean Parnell, president of the Center for Competitive Politics, which opposes campaign finance rules as restrictions on First Amendment rights.
Colbert’s request also puts the FEC commissioners in a potentially embarrassing position, said former Commissioner David Mason.
“If they play it straight, then they become the straight men (and women) for whatever jokes Colbert wants to make,” emailed Mason, a Republican. “If they try to make a joke, then they’re mud-wrestling with a pig.”
Former FEC chairman Brad Smith, a Republican appointee who co-founded and chairs Parnell’s group, said, “It is wrong for Colbert to tie up hours of staff and commissioners’ time on a lark, and my inclination would be to treat this request as such.”
FEC Chairwoman Cynthia Bauerly, a Democratic appointee, said she expects a lot more interest in Thursday’s meeting and conceded “the FEC is probably better known as a result of his coverage on the show.” But she said she will approach Colbert’s request like she does any other — with the goal of faithfully applying the election laws and the commission’s rules.
“There is a lot of public commentary on what the commission is or isn’t doing, and lots of people have views about how well we’re doing our job, but I really don’t pay much attention to all of that, whether it’s a late-night comedian or the Washington Post ed page or the blog of a group that thinks that the agency is doing the wrong thing,” she said.
Mason, Smith and Parnell all suggested that Potter, who has a long history of pushing the FEC to more strictly enforce and interpret campaign laws, was doing the wrong thing by representing a conflicting position on behalf of Colbert.
Potter remains president of the Campaign Legal Center, which is opposing the request Potter filed for Colbert, but he explained: “I have recused myself from all CLC consideration of Mr. Colbert’s activities since I became his lawyer.”