"The real problem comes in the fact that [Colbert] has his own show, talking about his campaign, paid for by a network" and sponsor, both of whom are corporate owned..." A Comedic Campaign Finance Conundrum

Who's afraid of a little comic relief in the 2008 presidential election?  Well, the Federal Election Commission should be.

Satirist and faux social and political commentator Stephen Colbert may not be making a serious run for the White House, but his "campaign" is raising serious federal election law issues in our over-regulated post-McCain-Feingold world.  However, it shouldn't be the comedic host turned fake candidate Colbert, his show's network Comedy Central or his show's sponsor Doritos that should worry about the legal and policy implications of his presidential prank.  It should be the federal regulatory agency that has everything to lose if and when Colbert's "campaign" exposes just how silly America's campaign finance laws really are.

While Beltway policy wonks and campaign finance lawyers have long known and argued about the pressure points being pushed by Colbert's joke, the broader public is getting its first late night viewing of just how ridiculous our campaign finance laws have become.  Indeed, understanding that some of the most effective policy critiques have been made in the guise of jest, Colbert has taken dead aim at the federal campaign finance regime and its main enforcer, the FEC.

For the FEC, Colbert's not ready for prime time "campaign" is and has to be serious business.  After all, Colbert is not only actually trying to get on both the Democratic and Republican primary ballots in his home state of South Carolina, but is also reaping the reward of having a cable broadcasting platform from which he can, in the words of federal election law, "influence[e] any election for Federal office."

Former FEC General Counsel Lawrence Noble made exactly that point when asked about the conundrum the FEC finds itself in.  "The real problem comes in the fact that [Colbert] has his own show, talking about his campaign, paid for by a network" and sponsor, both of whom are corporate owned, Noble noted.  "These are the kind of things on slow days you'd debate until the late afternoon at the FEC, but there are serious questions that come up.  In theory, he could end up having some campaign finance problems."

The main difficulty that Noble and other campaign finance insiders are pointing to is that federal law prohibits corporations from contributing to a candidate for federal office, whether directly (through cash or a check) or indirectly (through an in-kind gift of materials or services).  In other words, Colbert's air time, given to him by Comedy Central (whose corporate parent is Viacom) and paid for, in part, by the sponsorship of Doritos (which are made by Frito-Lay, whose corporate parent is PepsiCo), could be considered an in-kind contribution to his "campaign" — and a real valuable one both in terms of communications reach and monetary cost.  Indeed, this problem is even more acute because Colbert can and has been using his show to tout his candidacy.

Thus, theory is quickly, if not already, fact for Colbert, Comedy Central, Doritos and the FEC — not to say that anyone should be doing anything about it all.

Indeed, Colbert seems to understand that the FEC risks losing any amount of legitimacy it can claim if the agency seeks to apply the real campaign finance laws to his fake "campaign."  On his show, Colbert held up what he claimed was a legal memo from the D.C. law firm Wiley Rein, which has one of the country's most-respected campaign finance practice groups (and also represents CFIF), and explained that, because of campaign finance restrictions, corporate money could not directly fund his run for the White House.  But, Colbert continued, because of the media exemption to federal campaign finance laws, his faux news and commentary show could still cover his candidacy.

Referring specifically to his show's Doritos sponsorship, Colbert stated: "It's illegal for my crunch money here to pay for the campaign, but it is legal for it to pay for my show, and the show can report on my campaign."  Thus, in keeping with the law, Colbert told his viewers that all future campaign-related segments would be referred to as "The Hail to the Cheese Stephen Colbert Nacho Cheese Doritos' 2008 Presidential Campaign Coverage."  Colbert made the distinction between his obligations as host and candidate even more obvious, noting, "Host: 'Eat them.'  Candidate: 'I just happen to like them.'"

As the New York Sun editorialized in the aftermath of Colbert's antics parodying the campaign finance rules, "It's beyond ridiculous — and precisely the point."  Viewers understand that sums up Colbert's fictional comedic character.  Now they're learning it's a pretty accurate analysis of how our non-fictional political campaigns are run.

November 2, 2007
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