Friday, July 1st, 2011

The Colbert Super PAC's Real (Secret) Victory

Yesterday the Federal Election Commission in a 5-to-1 vote approved Stephen Colbert's media exemption, allowing him to turn his show into a non-stop fundraiser for some secret, but sure to be hilarious, future purpose. Yet while the FEC allowed Colbert to form his Super PAC, the decision came with some big restrictions, including the limiting of his ads to Comedy Central. Depending on your view of Colbert's goals or your preference for cliché, Colbert has either won the battle and lost the war, or pulled off one of the greatest bait-and-switches in recent comedy.

In the lead up to Thursday's hearing, political activist sites had begun turning their attention to the possible consequences of the decision, reporting that Colbert was about to go too far, and this decision could unleash havoc and chaos into the 2012 election. Liberal website Talking Points Memo wrote "Campaign reformers say Colbert's joke has gone far enough", while conservative news organ Politico declared "Stephen Colbert's running PAC shtick creates sticky mess." Colbert was out of his league, they said, and causing more trouble than he knew. Commenters to these stories rallied to his defense. They argued that Colbert was exposing a loophole in the campaign finance law created by the Citizens United decision, and if that loophole wasn't exploited for satire first, it could be used for far more sinister purposes.

Meanwhile campaign finance advocacy groups had been petitioning the FEC to deny the request. Joke or no, they feared "a sweeping and damaging impact on disclosure laws and the public's right to know about campaign finance activities." The filers included the Campaign Legal Center, a group run by Stephen Colbert's lawyer Trevor Potter, who has repeatedly appeared on the show to discuss their PAC and who has stood at his side throughout the entire campaign. Although Potter recused himself from the Center's opinion filing, many viewed this as a conflict of interest anyway, and Politico even claimed it raised ethics questions. How, they scratch their heads, could a lawyer working for a satirist ever support something his group opposes?

When the FEC ruling said Colbert could form his Super PAC, he declared victory and addressed the crowd gathered outside, just as he had after his visit there in May. Those two speeches did more than any other segment to lay out a scathing attack on the Citizens United decision through Colbert's satiric persona, and has given us some great insight into the point of this activism and how he intends to highlight it through his Super PAC.

He directs our attention to the absurd, hollow argument behind Citizens United: that corporate donations equal free speech equals patriotism, by playing to the same American myths that politicians and politically active justices cynically trumpet to wrap their kleptocratic motives in the flag. These lines got some of his biggest laughs because they so obviously don't tug at the heartstrings. You can choose your poison. There's the Founding Fathers myth, from May's speech:

As we stand here on this historic site, where 250 years ago today George Washington filed his papers to form his independent expenditures non-connected political action committee, we are also standing at an American crossroads, not to be confused with American Crossroads, the name of Karl Rove's Super PAC.

Or there's the Norman Rockwell-goes-to-Washington myth, from yesterday:

Sixty days ago today, on this very spot, a young man petitioned the FEC for permission to form a 'super PAC' to raise unlimited monies, and use those monies to determine the winners of the 2012 elections. Can anyone tell me who that young man was? It was me.

Even if we don't follow all the financial shenanigans that political action committees allow to happen behind the scenes, this we get: it's not how democracy is supposed to work.

So why — if Colbert gloated about his ability to raise unlimited secret cash — did the Campaign Legal Center, Trevor Potter's campaign reform lobby, issue a press release touting that his/Colbert's request was denied?

The Federal Election Commission (FEC) denied a request by comedian Stephen Colbert to extend the so-called "press exemption" to allow Viacom corporation to secretly subsidize his proposed Colbert Super PAC. By a vote of 5-1, the Commissioners adopted an advisory opinion that finds that Viacom corporation, the media entity which owns and produces Mr. Colbert's television show, is entitled to the press exemption only insofar as Viacom produces or otherwise supports reporting and commentary on Colbert Super PAC during the Colbert Show. The opinion follows the course of action recommended by the Legal Center's comments filed with the FEC in the proceeding. [emphasis mine]

Victory can be a matter of opinion. The Campaign Legal Center's interpretation is a bit tortured but ultimately accurate. The question of whether Colbert was allowed to form a Super PAC was never really at issue, only what expenses Viacom was required to declare. The ruling does state that Colbert Report can discuss and promote the PAC, but any expenses outside the show are fair game.

It all comes down to who owns what. As the supplemental questions answered by Potter show, the FEC was very interested in the corporate relationship between Viacom and the Colbert Report. A key question by the FEC asked: "The current disclaimers on both The Colbert Report and the Colbert Super PAC websites say they are the property of MTV and Comedy Central. Will the Colbert Super PAC's intellectual property be or remain Viacom's?" Potter's answer was curious, as it required him to state, among other things, that the Colbert Super PAC website (which we've visited) does not exist. While the "Colbert" that Stephen Colbert plays is owned by MTV and Comedy Central, the Colbert Super PAC will, by legal necessity, be separate and independent. But there's a big "but": any discussion of the Super PAC on The Colbert Report will continue to be owned by Viacom and its subsidiaries. In follow-up questioning Potter admitted that previous Colbert activism, including the Hail to the Cheese Stephen Colbert Nacho Cheese Doritos 2008 Presidential Campaign, the congressional immigration testimony, and the Rally to Restore Sanity and/or Fear, were all Viacom funded activities.

That puts the Colbert Super PAC on a very fine line, and makes it unprecedented among previous Colbert Report activism. What it sets up is a rigid division between what happens on the Colbert Report, and what the Colbert Super PAC does on its own. What happens on the Colbert Report, the FEC ruled, stays on the Colbert Report. If we were cynics, we might note that any Super PAC donations would implicitly subsidize content that becomes Viacom property upon airing on Comedy Central. However, we're not cynics, and we still think this is a wonderful thing he is doing.

The Campaign Legal Center continued:

"The impact of today's opinion by the FEC goes beyond Mr. Colbert and his well-known satirical show, and ensures that the numerous television show hosts and commentators who are serious politicians cannot exploit the press exemption. Sarah Palin has Sarah PAC, Mike Huckabee has Huck PAC, and both are television hosts and commentators," [CLC Associate Counsel Tara] Malloy continued. "Today the FEC made it clear that politician-commentators cannot have their corporate media employers make unlimited, undisclosed contributions to their PACs under the guise of the press exemption." But the Legal Center will be monitoring the Commission's enforcement of its guidelines in this area, as the frenzy of political activity by media-connected individuals and PACs like Mr. Colbert will no doubt heighten as the election season approaches."

If the FEC's ruling is to be objectively enforced, as the CLC plans to make them, then no advertisements paid for by Sarah PAC, Huck PAC, or Rove PAC can be shown anywhere other than on their own programs.

We know that no one buys political ad time anymore. That's just so old media. The trick, like with the so-racist-you-almost-miss-the-misogyny ad that Colbert played Wednesday night, is to create an ad so outlandish that it gets played on cable news as finger-quote controversial. Then your message gets out for free. This was the Swift Boat strategy in 2004, when the Swift Boat Veterans for Truth sank John Kerry's campaign with a non-existent ad buy but plenty of cable news chatter. Replicating that success is the goal of every Super PAC, and this is where the FEC's ruling's hidden significance gains traction. The committee's statement contains a very significant restriction:

…if Viacom produces independent expenditure advertisements for The Colbert Report and also provides these advertisements to the Committee to distribute outside of the show (including as paid advertisements on other shows and networks or as content for the Committee’s website) then the advertisements would not be protected by the press exemption and therefore would be in-kind contributions by Viacom to the Committee and must be reported as such. [emphasis mine]

This means Colbert can play ads on his show, but those ads are not permitted to be posted on the Colbert Super PAC's own website. Not buying ads on other stations: no big deal. But no web presence? That is a crippling restriction. Its effects could be devastating for Colbert fans, but worse for Fox News celebrities. The web will always win out, of course, and these ads will certainly find their way onto the internet, but any official distribution of it would be a violation, and subject to FEC action.

If I may return to Colbert's George Washington analogy, Colbert just crossed the Delaware River and surprised Fox News on Christmas Day.

If Sarah Palin, Mike Huckabee, and Karl Rove aren't allowed to spend PAC money outside their own shows, which they have anyway, then the FEC just rendered their PACs worthless.

Ha. Ha ha ha.

We can already claim that Colbert's campaign has been a success. At the time the Citizens United decision had failed to ignite the widespread outrage it deserved, either because its implications were so hard to discern or because we had more pressing things to worry about, like our jobs. But no longer. Colbert filled the FEC hearing room on Thursday, a chamber that normally gets an audience of at best two. People are paying attention. This was a story that the news media failed to uncover, but comedy brought to light.

But even if Colbert achieves some change in Citizens United, the Supreme Court still has a one-year head start. In the session just ended this week, the court passed decisions restricting, in separate rulings, the rights of employees, consumers, and patients, all in favor of protecting large companies. Stephen Colbert has a lot of work to do.

Stephen Hoban is a writer living in New York.

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  • http://throwingthings.blogspot.com Adam Bonin

    "This means Colbert can play ads on his show, but those ads are not permitted to be posted on the Colbert Super PAC's own website."

    Not quite. It's just that if they are placed there (or any place other than The Colbert Report), Viacom has to report and disclose its in-kind contributions to the SuperPAC both in creating the ad and in hosting it on a Viacom website.

    • Steve Hoban

      @Adam Bonin well, yes, it means that the PAC would be in violation of the press exemption, and Viacom would need to make a disclosure, which is where the whole thing started.

  • Carl Hess@twitter

    "If the FEC's ruling is to be objectively enforced, as the CLC plans to make them, then no advertisements paid for by Sarah PAC, Huck PAC, or Rove PAC can be shown anywhere other than on their own programs."

    Perhaps I misunderstood, but isn't it actually that no advertisements paid for by those PACs using money/support from Fox can appear anywhere but on their own programs? Sarah PAC can put a commercial anywhere so long as Fox isn't paying for it.

    • Steve Hoban

      @Carl Hess@twitter that could be true. It depends on what the FEC does with it. I drew this conclusion from my interpretations of the FEC's own statement and the Campaign Legal Center's reaction. the CLC statement is triumphantly worded, like this was exactly what it wanted to happen (and it confirms for me that Trevor Potter has been a co-conspirator in this campaign, and not just in it for the attorney's fees). They claim this is really going to restrict the money flow of those PACs and they make this claim in very broad terms.

      The part of the FEC's statement that I quoted focuses on the advertisements, and I understood that to be in response to Colbert and Potter's claims that ads were their primary goal — but overall (again, my understanding) the statement indicates the media exemption restrictions apply to any expenditures, not just ads. They do (elsewhere in the statement) explicitly call out administrative expenses as restricted from the exemption and therefore triggering in-kind disclosure. At minimum, what's important with this ruling is that the media exemption now means scrutiny for all expenses, not just those directly connected to the programming itself. That is (I believe) something new that we hadn't seen with previous media exemption requests.

      There are still a few ways for Sarah PAC, Huck PAC and the rest to get out of this. One, they could just not use their airtime to promote or discuss their PACs, but that would seriously cripple their visibility and fundraising power, the whole point of the PACs' existence. Two, Fox could agree to open its books and quantify the value of its in-kind contributions. Maybe they're happy to do that, but Roger Ailes is not his own boss, so it's more likely News Corp would try to resist. Either way Fox certainly wasn't expecting this would happen when they gave Sarah, Huck, and Karl these platforms, so the added inconvenience is Colbert's surprise gift to them.

      Beyond that it comes down to how vigilant and hard-ass we think the FEC is going to be. Their other decision from yesterday was also a surprise: they said politicians cannot fundraise on behalf of Super PACs. This all indicates that the FEC is planning to be strict with its regulation. And on top of that CLC has pledged that they are going to hold the Super PACs to these new rulings, so there's going to be exposure and pressure on the FEC to follow through in its enforcement. This could get very burdensome, if isntead of assuming separation the FEC put the burden of proof on the PACs that there was no money/support for any activities. It can be tough to show that nothing has bled over from one side to the other. Fox built Sarah Palin that studio in her Wasilla home, for example — it would be off limits. The PACs can't just be one money-in, money-out pool anymore.

      Even if they can show that a commercial wasn't paid for by Fox, it sets up a Catch 22. If the commercial is independent, it can't be shown on Fox. Once it's shown on Fox, it's won itself an in-kind contribution and can't be shown anywhere else. But if a commercial that supports GOP causes is not shown on Fox, it might as well not exist. But to justify being "reported" it needs to be a viral hit that's stirring up controversy on the web. Where it would trigger in-kind contribution disclosure. and so on. I think.

      Sorry, I know this response was far too wordy.

  • Peter Jerde@twitter

    Your conclusions are incorrect: Stephen Colbert can use his superPAC funds to PAY to produce ads, and PAY to run them, ANYWHERE he wants to.

    If he uses his viacom studio and staff on viacom's dime, i.e. out of his show's budget, to produce an ad which he then runs on other tv stations (which he and his lawyer specifically said at the hearing that they plan to do!) then they would have to either pay Viacom (with PAC money) the market rate for those services or report that value as an in-kind donation by Viacom, which Viacom is perfectly ALLOWED to do, but might not want to because there are political ramifications.

    Get this straight: FOX is allowed to give money directly to Sarah PAC etc. if they want to, but won't because they want to appear to be "Fair and Balanced". Fox can _discuss_ and even run snippets or even complete ads from these or any PAC in the course of their _coverage_ of them, and that will _not_, according to the FEC, count as a donation, just as Stephen Colbert can run his own PAC ads on his own show as part of his coverage, without that counting as an actual contribution to the PAC, because they're showing that content or drawing attention to it in the due course of their first-amendment-protected duties as a journalistic enterprise.