Is Comedy Central Breaking The Law? A Second View

From Rick Hasen:

A corporation cannot fund the express advocacy of a candidate for federal office out of its treasury funds. So General Motors could not run a newspaper ad saying "Vote for Colbert for President." The same rule applies to labor unions. The funding has to come from its political action committee.

But there's an exemption in the law for "any news story, commentary, or editorial distributed through the facilities of any broadcasting station, newspaper, magazine, or other periodical publication, unless such facilities are owned or controlled by any political party, political committee, or candidate."

Allison's main point is that Colbert does not control Viacom, Comedy Central, or even The Colbert Report. (I think we'd need to know a lot more about the Colbert Report's power structure before venturing a guess on the last point.) But I think she's elided over a prior question. The exemption only applies to a "news story, commentary, or editorial." It does not apply to everything Viacom does. So if Viacom took out a full page ad in the New York Post paid for with treasury funds saying "Vote for Colbert," that would be an illegal corporate expenditure regardless of the fact that Viacom could put on an express editorial saying the same thing on one of its television stations.

So the question could well 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). The fact that the show is a satire makes the interpretation question all the more difficult: does schtick count as commentary? I'm not so sure. But consider a case where Jay Leno does his comedy routine wearing a "Vote for Colbert" button. I don't think that would get the media exemption, and NBC could be in trouble. It is quite a fine line to draw.

Comments

unless of course he/viacom is satirizing the fec, and the parties, and the process, which of course he is--the very fact that his persona is on a show on comedy central is sufficient on that point.

the elision is actually precedent to the one hasen notes with respect to editorial/news/commentary. is anything colbert does news exactly? i think any lawyer who wants to bring viacom to court for running an ad with vote for colbert is fighting an uphill battle, since the argument can be made that viacom is just promoting the show.

the tougher question is whether the parties can legally keep him off the ballot (assuming he gets the signatures etc). that is the point colbert is pushing. will election lawyers really go to court to fight this point--will a judge take them seriously, will an appellate judge take them seriously. it would be wonderful to see the s.ct. grant cert on that one. colbert has breathed some life into this lifeless plodding campaign cycle.

Posted by JC | October 26, 2007 12:30 PM

What really makes this difficult is that some bona fide candidates might appear to be parody candidates to someone coming to the US from a foreign country. When, for example, Romney said, "I'd like to double Guantanamo," how would you know that he was not engaged in some satire? Had Colbert been invited to that debate, would he not have said the same thing?

About half of what Tancredo said at the last debate could have been said by Colbert.

We know Tancredo is not joking only because we know a lot about his history and background. For that matter, when Kucinich says that he'll establish a "Department of Peace," how would we know that he was not sort of a reverse Colbert, mocking simplistic lefty thinking, rather than someone who is apparently serious about running? And when Hillary said that in a Cubs - Yanks series, she would change allegiances on alternating days, was that a parody of a candidate who is at sea when focus groups are evenly split on an issue, or was that an actual serious person?

I hate to say this but I sympathize with the FEC for not wanting to wade into this morass and therefore to refrain from making special rules for apparent satire. (An interesting test would be if Colbert were willing to run some sort of goofy "parody" or "satire" disclaimer as part of his crawl; then the FEC would be able to say that candidates that label themselves parody candidates don't have to meet the ordinary rules).

Posted by RaymondA | October 26, 2007 12:53 PM

An interesting question, but its not a problem for Viacom yet because Colbert's not officially running yet. He's only announced that he's considering announcing.

Posted by Joseph Hovsep | October 26, 2007 1:24 PM

How about repeal the laws if they have such stupid effects?

I seem to recall that when these laws were passed, people warned about how it would affect normal freedom of speech. THe supporters of campaign reform said we were paranoid.

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