Few visitors could deliver the spectacle that is about to descend on the Federal Election Commission when comedian Stephen Colbert arrives to make his case for “Colbert Super PAC,” a political action committee he formed with the motto, “Making tomorrow better, tomorrow.”
In what had the appearance of a stunt aimed at poking fun at the complexity of campaign finance laws, Colbert--perhaps unwittingly--has sparked a legal debate that only the perpetually deadlocked commission can resolve.
At issue is whether Colbert Super PAC can produce and air election advertisements, with the assistance of resources provided by Viacom -- the parent company of Comedy Central, which airs "The Colbert Report " -- without disclosing the extent of Viacom’s assistance.
Usually, it's lawyers for candidates and political groups who petition the FEC for guidance. The commission's hearings rarely draw more than a handful of attendees.
"Amazingly, this important government agency works with about two people in the audience, not paying attention to what they're doing," Trevor Potter, Colbert's attorney, said last night on "The Colbert Report."
“Well, they should thank me,” Colbert said. “Are we charging them anything for this? Because I get a lot for personal appearances.”
A super PAC is a political action committee that can collect unlimited contributions from corporations, unions and individuals. Those donations, and the committee's expenses, must be publicly disclosed in filings to the FEC.
Colbert is seeking a “press exemption” to the disclosure rule as it relates to Viacom, suggesting that the cost of producing and airing the PAC's ads falls under the media function of "The Colbert Report," a satirical news program that often deals with political topics.
The commission’s decision could have wide-reaching implications in the world of political advertising.
Advocates for stricter campaign finance rules warn that a decision in Colbert’s favor could open the door for politicians with TV contracts to tap into the resources of media companies to fund their PACs’ campaign advertising -- without any disclosure of the media company’s involvement.
“Colbert may be intending his request to be purely satirical in nature, but we are concerned it can and will have real legal effects,” said Tara Malloy, associate legal counsel at the Campaign Legal Center, a group that advocates for stronger regulation of campaign finance. “There are already Fox commentators that have PACs of their own, like [Mike] Huckabee and [Sarah] Palin. Although not super PACs, the Fox scenario shows there’s a real-life analog to the Colbert scenario.”
Colbert has spent the last year poking at the FEC after a Supreme Court ruling in January 2010 erased previous limits on corporate and union spending to influence elections. If the commission’s recent history serves as any indicator, Colbert’s request is likely to land in the same partisan gridlock that has become an FEC hallmark--a 3-3 tie.
As he has pursued his request for guidance from an agency that is known for its serious -- some would say dull -- nature, Colbert has not veered from the comedy routine.
“Colbert Super PAC will also pay usual and normal administrative expenses, including but not limited to, luxury hotel stays, private jet travel, and PAC mementos from Saks Fifth Avenue and Neiman Marcus,” Potter wrote in the petition requesting FEC guidance.
In an ironic twist, Potter, though acting in this case as Colbert’s attorney, is also the founder of the Campaign Legal Center, the reform-minded organization that has led the charge in opposition to Colbert’s request. Campaign Legal Center is one of the most outspoken critics of undisclosed corporate funding of election-related ads.
Potter recused himself from the Campaign Legal Center for this case.
Deadlock appeared imminent in the days leading up to the hearing, as the commission produced three competing draft opinions: two that granted Colbert almost complete freedom to leverage Viacom resources for the benefit of his PAC, and one--believed to be the preference of the three Democrats on the commission--which would require the PAC to disclose Viacom’s assistance in the production of ads aired on other networks, and in the costs of maintaining the PAC’s paperwork with the FEC.
Overshadowed by the Colbert appearance is a second super PAC-related question that the commission also plans to discuss Thursday.
The petition, filed by two Democratic political action groups, asks the commission if it is legal for elected officials and candidates to raise unlimited funds for super PACs.
James Bopp, one of the attorneys involved in last year's Citizens United case and a zealous opponent of campaign finance restrictions, created his own group -- the Republican Super PAC -- that intends to do just that. Officeholders would solicit money for the group, with the understanding that the funds they raised will be earmarked for use on their behalf.
Bopp did not seek FEC approval before registering his group, telling the Los Angeles Times last month that the tactic was "perfectly legal."
But current campaign finance law prohibits candidates from seeking funds that are not subject to contribution limits. If the FEC rules that such solicitation is allowed, Democratic groups House Majority PAC and Majority PAC intend to join Bopp's group in this newest evolution of the super PAC.