The question about the application of campaign finance laws to the "candidacy" of Stephen Colbert could turn on whether the shameless (and hilarious) promotion of the Colbert candidacy on the Colbert Report actually constitutes a bona fide news story (no way) or commentary or editorial (harder question). "
If promotion of the Colbert candidacy on the show is not a bona fide commentary or editorial, that suggests that Colbert is not really a candidate, and therefore there is no issue. If Colbert is a candidate, however, how can reporting (or better, dare we call it ‘commentary") on the candidacy on the Colbert Report not constitute a "commentary or editorial"? There is no requirement that editorials or commentaries take a serious tone, and no requirement that a candidate campaign on serious themes.
The Commission, in the past, has discussed the "Leno problem," at some length, and on more than one occasion in my tenure. I think it almost certain that it would rule – and that a court would rule – that the Colbert Report is legitimate "commentary or editorial." What else is it? (The FCC has also taken a broad approach to what is "news" in applying the equal time rule.) But even if I could conceive of it not being a commentary or editorial, what about John Stewart’s show? Isn’t that legitimate commentary? And if so, aren’t Jay Leno’s jokes also protected? And given that a Leno joke almost certainly has more value (positive or in most cases negative) than him wearing a button, why would we have the law protect the joke but not the button?
Ploughing deeper into the question, it is obvious that there is quite a fine line to draw. Too fine, for my tastes, to trust to the government, which I have always understood to be the real purpose behind the First Amendment. Asking that we consider the purpose of the ban on corporations funding express advocacy doesn’t get us further, for it is surely true that we would have different answers; and relying on ad hoc judgments (there would probably be broad agreement that whatever the purpose of the ban, it is not applicable here) is a poor way to make law, especially in this arena. And judging by the seriousness tone of the NYTimes blog, members of the reform community are indeed worried – they can’t really go after Colbert without damaging their credibility, but if they don’t, what will happen next?
Meanwhile, I feel sorry for the FEC, which I am pretty certain – from Chairman Lenhard on down to the mailroom – has zero desire to prosecute Colbert, but which is forced, by the logic of the law, to state, when asked, "yes, this could raise possible violations." Sometimes you can’t catch a break.
But while the FEC may not want to chase Colbert, the problem is, I am not sure that this case is any more absurd than the Shelmerdine case (the infamous stock car sticker) or the "Muleshoe 4," (four Texas men investigated for a homemade sign placed on a stock trailer outside of Muleshoe, Texas, reading, "Save our Nation, Vote George Bush, not Al Gore Socialism," but failing to include the required disclaimers), or any number of other cases that triggered FEC investigations and, in some cases, citations and civil fines.
These cases are not aberrations. They are the law we have, and it’s hard to see how to draft a law that would exclude them while getting what "ought" to be "got," at least not without keeping Fred Wertheimer awake nights.
As a final aside, back in 2003, during FEC hearings on convention rules, as one party witness after another noted the need for private funds to subsidize the government subsidy, I joked that, "I look forward to the day . . . when Americans can turn on their TVs and watch the ‘Nokia Democratic Convention’ or the ‘AT&T Republican National Convention.’" Elements of the "reform" community, ever humorless, treated the comment seriously and were quite critical, at least one even demanding my resignation for that comment. In fact, it now seems that I had merely anticipated another "loophole" – the Doritos Nacho Cheese Colbert for President Campaign. For as the Supreme Court noted in McConnell v. FEC, it was under no illusion that Congress had spoken the last word with BCRA…!