Ballot Law: Colbert’s super PAC and unlimited corporate spending

July 6, 2011

Ballot Law(Editor’s Note: With 2010’s Citizens United Supreme Court ruling, the field of election law has seen, and continues to see, many significant changes.  Throughout the month of July, we’ll be looking at important developments in the area.)

On June 30, the Federal Election Commission voted 5-to-1 to approve a request from satirist Stephen Colbert to form a political action committee.

Colbert, who hosts Comedy Central’s The Colbert Report, wanted to create the PAC as a vehicle to discuss campaign finance rules.

For those who haven’t watched the saga unfold on Colbert’s show, Colbert’s initial efforts were blocked by Comedy Central’s parent company Viacom.

Viacom feared that any airtime Colbert was already given promoting his then-unformed PAC would be viewed as illegal in-kind (non-cash) contributions by the FEC (corporations are forbidden from donating to traditional PACs).

Colbert then decided to employ the newly-created “independent expenditure-only committee,” or “super PAC” (which was accomplished by simply adding a cover letter to his existing PAC filings stating in essence that the PAC is a super PAC).

The super PAC is a product of two 2010 court rulings.

The first is the infamous Supreme Court ruling Citizens United v. FEC, which held that any limits on independent expenditures (funds not directly given to political candidates or their campaigns) by corporations or unions is unconstitutional.

Six months later and based directly on the Citizens United ruling, the D.C. Appeals Court handed down its SpeechNow.org v. FEC ruling, which held as unconstitutional restrictions on corporate contributions to a PAC making only independent expenditures.

Thus, a super PAC can receive unlimited corporate contributions, so long as the PAC makes only independent expenditures.

Colbert at FEC HearingColbert’s request caused the commissioners some trouble, but not because it was meant as a parody.

On the contrary, Colbert’s request to the FEC was conducted completely legitimately.

Instead, it was problematic because of the potential implications of his request.

In particular, Colbert had discussed the idea of airing campaign ads produced by the staff of his show on other networks.

A ruling allowing this could have opened the door for other networks, namely Fox News, to fund the production and airing of ads supporting the PACs of several political figures in its employ, including Karl Rove, Mike Huckabee, and Sarah Palin.

The FEC’s ruling didn’t permit this, though.

While permitting the formation of Colbert’s super PAC, the ruling held that Viacom cannot finance any ads to be aired outside of the 30-minute The Colbert Report timeslot.

Of course, the way that court rulings on election law have been going recently, it may only be a matter of time until that provision is challenged in court.

For anyone familiar with Colbert’s show and its treatment of the campaign finance issue so far, his super PAC has been used to expose the perceived ridiculousness of the current system.

Increased public opposition to looser restrictions on corporate political contributions may be irrelevant, though.

Colbert outside FEC building after hearingEven before Colbert started his campaign, there was staunch public opposition to the Citizens United ruling.

So do court rulings that increasingly diminish an individual citizen’s voice in the political process in the face of strong adverse public opinion seem undemocratic?

They fit the definition of undemocratic, but that shouldn’t come as a shock, since courts have long been the least democratic government institution.

Will the most democratic institution – U.S. Congress – follow public opinion and attempt to stem the tide of this trend?

Considering the activity level in this area, it shouldn’t be long until we find out.