By Kenneth P. Vogel
On his popular Comedy Central late-night show, it’s all part of Stephen Colbert’s shtick.
He’s the ego-maniacal conservative pundit with an eponymous news commentary show, and – just like some of the Fox News Channel pundits he so cuttingly parodies –he’s angling to start a political action committee to raise gobs of cash to be, as he put it on his show in March, “a political playa in 2012.”
But when Colbert makes his anticipated appearance at the Federal Election Commission in Washington Friday afternoon seeking permission to use his show to promote the PAC, the joke will take on the contours of an actual political cause – exposing what he sees as the ridiculousness of the nation’s loophole-ridden system regulating money in politics.
And the stunt could have real – and potentially broad – implications in the world of campaign finance, not just for the comedian’s as-yet-unformed political committee “Colbert Super PAC.”
If nothing else, it could help the cause of campaign finance advocates by highlighting the ability of corporations to spend unlimited amounts to support or oppose candidates, and – as Lisa Gilbert of Public Citizen describes it – expose “the clear conflict of interest that Fox media has as they allow political figures to promote their PACS on a supposedly neutral media outlet.”
Democrats and advocates for stricter campaign finance rules hope “the Colbert bump” – the comedian’s term for popularity boosts he asserts politicians receive after they appear or are featured on his show – carries over to the Democratic push to blunt the impact of the Supreme Court’s January 2010 decision in a case called Citizens United vs. FEC.
The court struck down as unconstitutional decades of laws barring corporations from spending money to support or oppose candidates – a decision that prompted a deluge of outside advertising that liberals say favored Republicans in the 2010 midterm elections.
Colbert has treated the decision and its ramifications as fodder for his show since the ruling came down, and his series of bits on his political action committee fit into that broader focus – as well as his biting parodying of the politicking of Fox News and its pundits.
Technically, according to details of Colbert’s request to the FEC provided to POLITICO, he is asking the commission whether the airtime and other costs associated with any shows on which he promotes his hypothetical PAC would be considered a contribution from Comedy Central’s parent company, Viacom, or whether they would be exempted from campaign finance rules and disclosure requirements. That so-called media exemption allows newspapers, blogs, radio show hosts and others considered media to urge votes for or against candidates.
If the six-member commission takes Colbert’s request seriously, and decides to grant him wide latitude in using “The Colbert Report” to promote his PAC – both very big ifs – it “could have a sweeping effect. That would be a troubling development,” said Paul Ryan, a lawyer at the Campaign Legal Center, a non-profit group that pushes for tighter restrictions on money in politics.
Likewise, said Gilbert, if the commission goes the other way, ruling that any airtime Colbert devotes to promoting the PAC should be treated, and disclosed, as a so-called in-kind contribution from Viacom, it could “have a real election law impact,” in part by restricting the freedom of a handful of high-profile Republicans who serve as paid Fox News pundits and are affiliated with PACs, including Sarah Palin, Mike Huckabee, Karl Rove and Dick Morris.
As with all things Colbert, though, it may be folly to try deduce any serious underlying motivation – other than satirizing the silly side of American politics and politicians – from his shtick.
For instance, the slogan for his PAC is “Making a better tomorrow, tomorrow,” and when he first unveiled the idea in late March, he quipped to his audience:”At this point some of you may be wondering ‘what is ColbertPAC’? Well get in line, because I have no idea.”
In a bit on his Wednesday show, he described its purpose as setting the stage so “the Colbert Nation could have a voice, in the form of my voice, shouted through a megaphone made of cash” in the 2012 elections.
Kidding aside, Washington’s political class clearly respects and fears the potential of Colbert – and his Comedy Central running mate Jon Stewart – to both embarrass politicians and to shape political narratives, particularly among younger, left-leaning demographics.
When the two held a massive rally on the National Mall ten days before last year’s midterm election, it was read as a measure of the enthusiasm of young Democratic-leaning voters and prompted both hand-wringing and optimism among the party’s organizers.
And after a bill to grant Washington, D.C. a vote in Congress passed the Senate in 2009, its primary champion Del. Eleanor Holmes Norton (D-D.C.), who appeared regularly on The Colbert Report to talk about the cause, told POLITICO “Stephen Colbert has done more than any other single human being to inform the country, which was largely ignorant of the fact that we do not have the vote. I tell my constituents – you don’t owe it to me, you don’t owe it to DC Vote, you owe it to Colbert.”
In a show a couple weeks after unveiling his PAC idea on the air, he told his audience that he had received a letter from a Viacom lawyer asking him to drop the gag.
“At this point, Stephen has used enough of Viacom’s resources in promoting the as-yet-unformed PAC … that the FEC would likely see an in-kind donation from Viacom in the event the PAC is ever actually formed. That means you can’t form it,” decreed the letter, according to Colbert, who continued “Sincerely, some jerk sitting at a desk.”
But instead Colbert asked for advice on how to circumvent the ban on corporate cash from Trevor Potter, a former FEC chairman and general counsel for John McCain’s presidential campaign, who has long been an advocate for stricter campaign finance rules and served as president of Ryan’s group, the Campaign Legal Center.
Potter, who has appeared on the Colbert Report three times to discuss the PAC and is now representing Colbert in his advisory opinion request before the FEC, explained that corporations like Viacom are barred from giving to PACs, but that – thanks to Citizens United – they can give to a new form of PAC colloquially known as a super PAC, which can only airs ads support or opposing candidates, but can’t give to their campaigns directly.
So, as Colbert explained Wednesday “I did the right thing and I exploited a loophole,” adding “there is critical legal distinction between a PAC and a super PAC. One has the word ‘super’ in its name. So I took Colbert PAC and I made it Colbert super PAC.”
Yet, Viacom’s lawyers balked at that solution as well, Colbert said, declaring in overstated exasperation “I hate my parent company! They never let me do anything. Everyone else’s parents companies let them do it. Karl Rove is a paid employee of Fox News and he gets to talk about his Super PAC, American Crossroads all the time.”
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.”
Don’t be surprised if the FEC is unwilling to play along with Colbert’s gag, though, warned David Mason, a former commissioner appointed by Democrats.
Commissioners will likely be very cognizant of the possibility that any advice they issue could be treated as a part of Colbert’s gag, said Mason, explaining “that will be one of the concerns of the commission”
“There is a substantial doubt about whether this is anything more than a joke,” said Mason, pointing to Colbert’s unsuccessful effort to win a spot on South Carolina Democratic presidential ballot during the 2008 primaries.
“I’m skeptical. Remember the presidential campaign? I don’t know whether there is a real dispute here (between Viacom and Colbert) or a fake dispute that is intended to generate attention,” said Mason. “It’s not that jokes can’t have serious points and legal consequences, so something could happen, but this is his way of making a comment on the law and the state of politics. If he was serious about opening up a PAC, he would proceed differently. He would just do it.”