Stephen Colbert’s SuperPAC gag getting a lot less funny for campaign finance ‘reformers’

Today promises to bring more attention to a meeting of the Federal Election Commission (FEC)than quite possibly all previous meetings combined. The cause of this is comedian Stephen Colbert’s appearance today to answer questions regarding his advisory opinion request.

Originally intended as an ongoing comedy skit to mock the Supreme Court’s ruling in Citizens United, the Colbert SuperPAC gag has spun into something of a headache for the self-styled campaign finance ‘reform’ community. Several media outlets have begun to report on this. From today’s Politico comes this story by Ken Vogel:

Stephen Colbert’s running PAC shtick creates sticky mess

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.

Likewise the Washington Post is reporting on the mess created by Colbert for the ‘reform’ community:

Stephen Colbert set to testify to FEC on forming his own super PAC

The Federal Election Commission does serious issues. It does complex debates over mind-numbing campaign laws. It does not do funny.

But now the agency finds itself the target of a very public joke by television comedian and provocateur Stephen Colbert, who is set to testify Thursday on his tongue-in-cheek bid to form an eponymous “super PAC” for the 2012 election season…

But while Colbert is playing for laughs, many experts worry that the request will further loosen election laws by blurring the line between broadcast personalities and politicians, giving media companies freer range to act as de facto political groups…

 “Obviously Mr. Colbert is playing this for humor,” said Lisa Gilbert of the Public Citizen advocacy group. “But I’m not sure if he intended these far-reaching consequences.”

Both articles also quote me saying, basically, that while it was hoped the Colbert SuperPAC gag would help illustrate the supposed folly of Citizens United, in fact it has turned into an education for many on just how complex and convoluted campaign finance laws are, and how they stifle speech.

Lost in a lot of the coverage and the comedic routine of Mr. Colbert is the question of what, exactly, is it that the FEC is being asked to approve?

There is absolutely no question of whether or not he can form the PAC, and accept unlimited contributions from any source, including unions, corporations, or individuals (although during the taped interview with me, Colbert focused of course almost obsessively on corporations). The real question before the FEC is how to report Viacom’s involvement and support for Colbert SuperPAC in the required filings.

Viacom, a corporation, owns the production facilities and pays the staff of the Colbert Report, and of course distributes the show through the Comedy Channel. So long as Colbert SuperPAC remained entirely on the show, there was no problem as far as reporting requirements because Viacom’s support for the gag was well within the media exemption.

But because Colbert wants to start a PAC, and use funds from that PAC to air advertisements created by Viacom staff using Viacom’s corporate assets, things get very messy very quickly. Colbert would have to file regular disclosure statements with the FEC (there is no “comedy exception” to campaign finance laws), and presumably would have to include on his filing the value of the staff time and resources used to produce their ads, website, and other things as an in-kind contribution.

This, needless to say, has the executives and lawyers at Viacom extremely unhappy. Two things seem to be driving their displeasure:

1.       Viacom really doesn’t want their name attached as a contributor to an independent expenditure PAC, at least not this one. Contributing implies support for the message, and while Viacom seems happy enough to have Colbert speak out on his show, it changes when suddenly his ads are running on ESPN and Viacom is listed as the top contributor to the PAC.

2.       Reporting the value of Viacom’s in-kind contribution requires putting a dollar-figure on the report. How does one assign a value to this sort of in-kind contribution? No doubt some sharp accountants could come up with a pretty reasonable way, but the problem is that a different set of sharp accountants somewhere else might come up with a different but also pretty reasonable way of determining the value of the in-kind contribution. Meaning that complaints would be filed alleging that Colbert SuperPAC filed a report that undervalued (or overvalued) the contribution and that Viacom isn’t accurately disclosing their support for the PAC. This brings in more lawyers, accountants, bad press, and other things that the folks at Viacom would just as soon avoid altogether.

So what Stephen Colbert is asking for is a determination by the FEC that Colbert SuperPAC fits under the media exemption, that the PAC’s operations are well within the normal course of business for a media entity and therefore the value of Viacom’s in-kind contribution does not have to be reported at all.

This has ‘reformers’ up in arms, because if granted, well, judging by the hysterical ravings coming from that side it has something to do with FOX News and Sarah Palin, and as most ‘reformers’ lean strongly towards the left side of the ideological divide this is clearly unacceptable.

It seems likely that the FEC will be ruling that the support by Viacom given to Colbert SuperPAC that results in ads and commentary appearing on the Colbert Report won’t have to be reported, but if ads are run in paid-for advertising spots it will have to be reported. Which would likely be the end of Colbert SuperPAC, at least as anything other than a comedy skit on the Colbert Report.

But it seems like Colbert has put the ‘reform’ community in a no-win situation. If the FEC does grant Colbert his media exemption, then something something FOX News something Sarah Palin something disclosure is dead.

If, as seems more likely, the FEC denies the media exemption, then Stephen Colbert will have to report to his audience that apparently those loophole-ridden campaign finance laws that allow anything to go, aren’t quite so loophole-ridden and in fact are stifling his political speech. Which wasn’t quite the point of the gag, now was it?

Either way, the question raised by this whole affair is: Just how far have we strayed from the First Amendment with our campaign finance laws when a comedian has to get permission or at least clarity from the government in order to mock campaign finance laws?

The Center for Competitive Politics is now the Institute for Free Speech.