Oh, sure, you thought it was all cute and funny that Stephen Colbert is planning a bid for the 2008 presidential nomination of both parties (at least in South Carolina). Then they called in us lawyers, and thanks to us (well, thanks to the law, which we're trying to explain) it's a mess. Let me elaborate.
As you may recall, it's basically illegal for corporations to get involved in express advocacy on behalf of candidates for office unless you fit under the "media exception," the same regulation which protects this site's campaign-related speech while being owned by an LLC. General Electric, as a corporation, can't just spend corporate funds promoting candidates for federal office; however, to the extent that its NBC News subsidiary counts as legitimate "media," then its "news, commentary and editorial" is exempt from campaign finance law.
Unless, that is, if the media entity in question is owned or controlled by a candidate, party or political committee. The RNC can't make an end-run around campaign finance law just by buying a cable channel. So, with Colbert, the question is "what's the entity?" If it's the whole Comedy Central network, he doesn't control its content; if it's "The Colbert Report," then, yes, he probably does. Now, Prof. Allison Hayward thinks that it's more likely that the network, and not merely the show, must be controlled by the candidate for this to be a problem. But that's certainly not a clear-cut issue, and prior FEC advisory opinions suggest otherwise.
For example, when the FEC allowed Operation Rescue founder Randall Terry to keep his radio show during a 1992 congressional bid, the FEC granted the exception with the understanding that
The Commission notes your statements that your show does not air in the 23rd District. The Commission also notes your representations that you do not intend to use the show to promote your candidacy or raise funds for your candidacy, and that no ads raising funds for or promoting your candidacy would be run during the show. The Commission interprets your representations to include a commitment to refrain from attacks on your opponents, or from soliciting funds or airing ads for those purposes. Based upon these conditions, the Commission concludes that you may continue to host your show during your candidacy without a prohibited contribution occurring.
And he didn't own the radio station, nor did B-1 Bob Dornan when he was allowed to host a show in-between campaigns.
Assuming that "control" isn't an issue, however, is Colbert home free? No. Because, as Prof. Rick Hasen asks,
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 uncomfortable with the notion that a government agency could decide what forms of commentary are sincere, and which are just jokes. As a commenter on another site noted, is Colbert any more silly than Mitt Romney proposing to double the size of our facilities at Guantanamo Bay?
I've wrestled with this one, and the way I see it, if Colbert makes real efforts to get on the ballot, then he's a candidate -- and it's not for the FEC to say who's a "serious" candidate. And if that's the case, then as a matter of law, I do have a problem with this -- replace "Comedy Central" with "Fox News" and "Colbert Report" with "Sean Hannity decides to run for Congress," and see how you come out on this.
Bob Bauer has more. And, oh yeah: even if that's all resolved, there's also a potential "equal time" issue.