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.