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The Colbert Report PDF  | Print |  Email
By Bob Bauer   
October 23, 2007

This article appeared on Bob Bauer's Blog and is reposted here with permission of the author. 


Colbert’s segment on his brush with the campaign finance laws is the first of its kind. As an entertainer, he means to be funny, but he is fairly serious at the same time; and of how many popular entertainers can be it said that they are skeptical of campaign finance reform, much less have given it any serious thought? Colbert, on his first try, professes to be baffled by the "lines" drawn by the law. He knows that merely to explain the difference  between media and other corporations is sure to get a laugh. The split screen he used to make the point is about as good a jab at the inner contradictions and porous boundaries of the law as any found in standard anti-reform critiques.  

It might end here, or it might go farther. It appears that Colbert will flirt with violating the law, or build a piece or two around the flirtation, but since he has hired Wiley Rein, he seems also prepared to keep to the legal side of the line—mostly. If he just walks the line from time to time—as visible as the line can be—regulators will have little appetite for challenging Colbert.  His best bet is to avoid flagrancy, and this, Wiley Rein on the other end of the line, he (and even more, his corporate sponsors) may be committed to doing.

If Colbert does become a candidate and qualifies for the South Carolina ballot, then what will happen to his show as the voting nears and he wishes to make the most of his ploy?
Colbert’s first-line of defense is to establish that his show is a news show, entitled to the protections of the "media exemption." Assuming that he is successful there—as he would be, most likely— then the question is whether his hosting of the show as a candidate presents any special issues, now and perhaps under the electioneering communication prohibition, effective within the 30 day period prior to the South Carolina primary.


FEC opinions here would amuse Colbert, darkly. The FEC would have to consider:

1. That Colbert the candidate, though he does not "own" the facility, has control over the content;

2. That the content would refer—most definitely, since it is the heart of the joke—to his candidacy, and it would expressly advocate it.

3. The show will air before the voters of South Carolina.
If all these happen to be true, the Commission could be in a pickle: its prior Advisory Opinions could support a finding that Comedy Central will be making an illegal corporate contribution to candidate Colbert.

It is striking that when the Commission has considered the question in closer cases, it has asked, among other things, whether "the scheduling and duration of the [cable or TV]  series, or the selection of individual topics" would be made "with reference to the timing of [the candidate’s nomination or election to office.]" Advisory Opinion l994-15. Here it would: that is the framework for the jokes. But the Commission need not go so deeply into timing questions.  For in the Colbert Report, the candidacy would be the central, explicit topic of discussion, inconsistent with the Commission’s expectation that any show outside the reach of the campaign finance laws be "without references to the [candidate’s] campaign or election to Federal office." Id.

The Commission has ruled on the case of a show host who was also a candidate and this language is pertinent:

The Commission also notes your representations that you do not intend to use the show to promote your candidacy or raise funds for your candidacy, and that no ads raising funds for or promoting your candidacy would be run during the show…. Based upon these conditions, the Commission concludes that you may continue to host your show during your candidacy without a prohibited contribution occurring.

Advisory Opinion 1992-37. 
If a corporate contribution may occur, then, what are the implications for the 30-day prohibition on electioneering communications—references to candidates, paid by a corporation, within this period?  It would not apply to news show coverage, of course: but somebody could make trouble by arguing that if the corporation was already making contributions, illegal ones, to support Colbert, its host, then it was not functioning as a press entity in airing and promoting the show. The Commission has ruled that whether the press entity is acting as a press entity, in performing a particular "media activity," depends on a variety of factors. One such factor is whether "the candidate [having access to the broadcast facilities]…would have the ability to determine when or how…election advocacy messages are presented to the viewers…."  Advisory Opinion 1996-48. See also Matter Under Review 3657 (Multimedia Cablevision), cited in Advisory Opinion  2004-07.

Colbert does have several escape routes here.  He can wait out the agency, which may not have much taste for confronting Colbert on this issue. Or, he could file an Advisory Opinion request with the FEC, and determine whether the agency would look for a way out. Finally, he could arrange for a challenge to the law as applied in these circumstances. He is well represented, even if he would have preferred to hire Alberto Gonzalez; no doubt he will proceed wisely and with an eye to audience appeal.

All of this, from an election lawyer’s point of view, would be highly entertaining. And perhaps good for more than just a laugh.
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