POLITICO
By: Kenneth P. Vogel
Oct 26, 2007 06:15 AM EST
Joke or not, Comedy Central is taking the legal implications of Stephen
Colbert’s
presidential candidacy very seriously.
Joke or not, Comedy Central is taking Stephen Colbert’s presidential
candidacy — or,
at least the legal implications of it — very seriously.
The network has consulted a top Wa****ngton election law firm and appears
keenly aware
of the strict election law provisions that could be triggered by Colbert’s
satirical
campaign.
Comedy Central this week issued a confident statement rejecting assertions
by
election law experts that the network, Colbert and his eponymous faux news
show, "The
Colbert Re****t," risk violating the tricky laws governing what types of
money can —
and can’t — be spent influencing federal elections.
“Based on the law, prior rulings made by the Federal Election Commission
and advice
of expert outside counsel, Comedy Central is very comfortable that the
network, 'The
Colbert Re****t' and Stephen Colbert are operating well within federal
campaign
election laws,” the statement said.
The expert outside counsel in question is the Wa****ngton law firm Wiley
Rein, whose
lawyers have represented the Republican National Committee and the first
President
Bush’s campaign. In 2003, the firm won FEC approval for a reality show
about a mock
presidential campaign called "American Candidate," which aired on
Showtime, at the
time a subsidiary of Comedy Central’s current parent company, Viacom.
In an advisory opinion requested by Wiley Rein, the FEC ruled that the
show, hosted
by Montel Williams and running only one season, qualified for the media
exemption to
campaign finance rules.
Colbert’s situation raises more issues, though, because he hosts his show
and has
actually taken steps to get on both parties’ presidential primary ballots
in his home
state of South Carolina.
Wiley Rein wouldn’t say whether it’s requested an advisory opinion for
Comedy Central
or Colbert.
But it’s evident Colbert has been coached on potential danger spots,
because he has
deftly weaved his efforts to avoid them into his wildly popular shtick as
a
self-aggrandizing right-wing talk show host named Stephen Colbert.
For example, on one of his four 30-minute shows last week, Colbert told
viewers that
his lawyers advised him to use a new campaign website rather than one
linked to the
network to post a downloadable petition seeking signatures to get on the
South
Carolina Democratic ballot.
A Comedy Central spokesperson, who declined to be named, would not answer
questions
about whether the network plans to promote Colbert’s candidacy, how much
the network
spends to produce the show or whether it paid staff and lawyers working to
get
Colbert on South Carolina’s ballots.
The answers to those questions could determine whether the FEC takes
Colbert’s
quixotic quest seriously.
That’s because, under federal election law, Colbert would be considered a
candidate
if he or his sup****ters raised or spent $5,000 in sup****t of his
“campaign.” If that
happens, whether his campaign was intended as a joke or not, he’d have 15
days to
form a campaign committee and file a statement of candidacy with the FEC.
He had yet
to do that Thursday.
Setting traditional fundraising aside, things could get dicey if the FEC
determined
that Comedy Central spent any money promoting Colbert’s “campaign,” which
could
possibly include the show’s production and airtime costs, salary paid to
staffers and
Wiley Rein’s legal fees.
Those could be so-called "in-kind" donations from Comedy Central or
Viacom. It’s
illegal for cor****ations to contribute money, labor or anything of value
to federal
candidates.
Colbert could have an out if he argued he doesn’t control the cor****ate
funds spent
on his show, argued Allison Hayward, an assistant law professor at George
Mason Law
School who worked at the FEC.
“'Colbert' is scripted. It’s an act,” she wrote on her blog. “Is that
control of a
'broadcast facility'? I doubt it.”
Asked if Colbert controlled his show’s content, the Comedy Central
spokesperson
pointed to the shows’ credits, which list him as one of three executive
producers and
one of a dozen writers. The spokesperson also declined to answer when
asked if the
campaign was a joke, which presumably would be Colbert’s best defense.
Short of that, Colbert and his employer may be able to avoid the FEC’s
wrath simply
by not blatantly tweaking the agency’s rules, according to Bob Bauer, a
top
Democratic election lawyer at Perkins Coie.
“His best bet is to avoid flagrancy,” Bauer wrote on his blog. “It appears
that
Colbert will flirt with violating the law,” he wrote, “but since he has
hired Wiley
Rein, he seems also prepared to keep to the legal side of the line —
mostly. If he
just walks the line from time to time — as visible as the line can be —
regulators
will have little appetite for challenging Colbert.”
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