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It’s an age old truth that all across the land, so there’s no need to argue: parents just don’t understand. Faux-conservative comedy-news-pundit Stephen Colbert recently found this out the hard way, when his station’s parent company, Viacom Inc., told him that he cannot form his Political Action Committee (PAC) because it might violate campaign finance laws. Viacom’s letter to Colbert, which he read over the air, set off a chain of events which landed Colbert at the FEC asking for an advisory opinion which could have very real, legal ramifications in the murky world of campaign finance law.
Colbert decided to form his own PAC in the wake of the 2010 Supreme Court decision, Citizens United v. The FEC , in which the Court found laws prohibiting corporations from donating unlimited amounts of money to political campaigns unconstitutionally burdensome to free speech. After the opinion was issued, some political observers suggested that Republican candidates ”won” back the House of Representatives in 2010 as a result of corporate political spending in support of conservative candidates. Colbert has been mock-praising this decision ever since, telling POLITICO, “I believe that 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.”
In their letter to Colbert, Viacom lawyers expressed their concern that because he has spent so much on-air time talking about forming his PAC and using Viacom resources, once the PAC is actually formed the FEC will view Viacom’s support as an in kind donation to a political campaign, subject to various campaign disclosure laws. These disclosure laws mean that Viacom would have to quantify how much they spent on Colbert’s PAC, disclose it, and risk a finding that they quantified their support incorrectly. Meaning, in the words of a Viacom lawyer to Colbert, “you can’t form it.”
Colbert immediately enlisted the help of former FEC chairman-turned-private-lawyer Trevor Potter with the goal of finding a loophole. Initially, the two settled on the Super Pac rule, which allows corporations to donate without disclosing to ads that support or oppose candidates without giving to campaings directly. Viacom still said no.
Finally, Colbert wondered aloud why Fox News let Karl Rove and Sarah Palin discuss their PACs on air. Potter explained that they were taking advantage of the media exemption, which exempts money spent on publishing or broadcasting news or commentary from the disclosure requirements, as long as the media network or outlet is not owned by a political party or candidate.
That was enough for Colbert and with Potter as his lawyer, he filed an advisory opinion with the FEC on May 17th, specifically asking if the money spent in keeping Colbert on the air talking about his PAC would count as an in kind contribution from Viacom, or an exempt media broadcast.
Like all things Colbert, his request for an advisory opinion is at least part tongue-in-cheek. Members of the FEC have characterized themselves as “skeptical” of how serious he is. However, other members have indicated that they will take his request for an advisory opinion as seriously as they do any advisory opinion, which is where everything gets interesting. Pundits on both sides have been weighing in on how this “accidentally brilliant” point can affect campaign finance laws. If the FEC blesses Colbert’s media exemption argument, we might see members of Fox News on air actively soliciting for their PACs, which is a large step for an allegedly neutral news organization. On the other side of the coin, if the FEC finds that Colbert’s speech does not fall under the media exemption, Fox News and other outlets may have to change their practices. Even if Colbert is tongue-in-cheek, the FEC has no reason not to confront this colorable legal issue that can help shine light on a legitimately confusing area of law. As one conservative pundit pointed out, it seems ridiculous, and in complete opposition to free speech principals, that “our campaign finance laws are so complex that a comedian has to get special permission from the government to mock them as part of his comedy routine.” And these distinctions, PAC v. Super Pac v. Media exemption do seem needlessly complicated and somewhat superficial. After all, as Colbert said, he is just trying to influence the 2012 election, not install iTunes.
– Alexandra Pichette
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