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From the FEC Press Office:

The Commission … approved AO 2007-20 in response to a request from XM. The Commission concluded that XM may provide free airtime to Presidential candidates on its new channel, POTUS ’08, because XM’s satellite radio broadcasts are exempt under the press exemption.  The Commission also concluded that communications supplied to XM by Presidential candidates must contain disclaimers identifying the political committee that made a disbursement for the communication.

No link to text yet, apparently.  I’ll add one when I can.

Prepare for a televison and movie writer’s strike!  You know what that means?  The Colbert Report becomes . . . The Colbert Life.  Because reality shows don’t need writers, apparently.

If The Colbert Report goes into reruns, that might say something about who controls the “facility” for press exemption purposes, hmmm?  Like . . . the writers! Glenn, Tom, who loves ya, babe!  You look great!  You’ve lost weight, haven’t you? I know I owe you a call.  Keep it real, man!

Whilst looking for something else, I came across some public opinion polls from 1943.  In polls taken by the American Institute of Public Opinion, 68% approved of sex education in high schools, and 64% would vote against prohibition.

(Somehow I don’t think they anticipated condoms and cucumbers . . . )

A poll taken about the same time asked women if women should generally have stricter morals, and 66.3% answered “yes.”  Well . . . no wonder.

Well, I thought it was funny.

Deploying its all-star cast of journalists, the Politico is on the Colbert story like . . . white on rice. (Oh, the article quotes this fine blog).

Welcome Politico readers!

Clearly, this is leading up to a climax:

Scene 12:

Camera pans across hearing room, as Stephen Colbert 

takes his seat at a witness table, 

reporters scurry as we hear a gavel.

Lenhard:  Please, please everybody come to order.

Mr. Colbert, you understand the allegations made

about the funding of your candidacy.

We here at the FEC want to know why we should

turn a blind eye to the immense aggregations

of wealth of Comedy Central . . . indeed of

Viacom.  In truthi . . .

Colbert (shouting):  Truthiness?

You can't HANDLE the truthiness!

The NY Sun on Colbert-gate.

Meanwhile, congrats to all the nay-sayers and mugwumps.  The theory that there is something illegal about the Colbert campaign has made it into Stephen Colbert’s Wikipedia biography.  Is nothing sacred?

Brad Smith envisions a world without FEC Commissioners.

I wonder whether the commenters to this post realize that, once up a time, John Bolton was a campaign finance lawyer. There is hope for us all.

When an issue hits Drudge, you know it is real. So I want to take a bit more thorough look at the allegations that the Colbert Report -Comedy Central might be in deep kimchee with the FCC and/or the FEC over the Colbert for President campaign.

Two assertions have been made. One is that by airing Colbert, and allowing him to flak for his “campaign” the Comedy Central cable network (or Viacom) is making illegal corporate contributions/expenditures. The second is that Comedy Central will have provided Colbert with a “use” that under communications law triggering equal opportunities obligations. Let’s look at each of these in turn.

Why would the broadcast be deemed an illegal expenditure? Because, so the argument goes, the candidate is controlling the broadcasts - Colbert “controls” the Colbert Report. Thus, the broadcasts would not be exempt under campaign laws as news, commentary or editorials run by a broadcaster (the so-called “press exemption” - scroll down to 431(9)(B)) The law explicitly states that if the facilities of the broadcaster are controlled by a candidate or political party, the spending isn’t exempt.

Setting aside for a second the practical question whether the FEC would, as a prudential matter, pursue a complaint against Colbert, is this a sustainable legal position? What does it mean for a candidate to “control” a facility? In Forbes v. FEC, the agency pursued Forbes (the magazine) controlled by Forbes (the editor in chief and owner of its parent company) for running articles by Forbes (the candidate). Control? Not hard to imagine. Even here the FEC has the good sense to back off and seek dismissal of the litigation. In an advisory opinion to MTV (AO 2004-7), the FEC fixed on whether the media outlet itself (here MTV, also owned by Viacom!) was owned or controlled by a party, committee or candidate. In the Multimedia MUR the FEC concluded that a cable operator could endorse a candidate and publicize that endorsement (but couldn’t distribute flyers, because that wasn’t part of its press function). The distribution of material outside a press outlet’s “press function” is OK, however, if it is meant to advertise that outlet’s news or commentary. See Readers Digest v. FEC from 1981. The media can also “make news” by structuring events (like debates) and then covering those, under the exemption.

Admittedly, there isn’t a lot of “real” court interpretation of the press exemption. A fair reading of the statute, unclouded by dicta and whatnot, would lead to the conclusion that the media outlet must be controlled by a party or candidate before it risks falling outside the scope of the legal exemption. As I noted before, that is a fact question, and I think there is real doubt that Stephen Colbert, comic actor and star of the fictitious comedy program “The Colbert Report,” is really in control of Comedy Central. Or even of the Report. Let’s ask the shows producers and writers who is “really” in control.

On the communications law part, here is a terrific post outlining the ins and outs of the FCC equal opportunities requirement. In brief, there may be a questions whether Colbert, running in only one state, is a bona fide candidate. Another question is whether the requirement applies to cable networks. Even assuming the answer is “Yes” to both of these, what result? Competing campaigns can ask Comedy Central for equal opportunities. Oh really? Can we expect the latter day version of Nixon’s Laugh-In cameo, only this time featuring Senator Clinton?

Sure.

Here’s a Slate story about the Colbert candidacy, ostensibly reflecting the input of two fine campaign finance lawyers.

I’m not sure I draw the same conclusions.

First, the question of whether Colbert as a “candidate” controls the Colbert Report, or Comedy Central (remember it is control of the FACILITY that the statute & regs require) is a fact question. Most “talent” don’t control the shows on which they appear. Colbert is scripted. It’s an act. Is that control of a “broadcast facility”? I doubt it.

Second, the equal opportunities provisions of the communications law don’t apply to cable. Comedy Central is a cable outlet, not a broadcast outlet. That’s why NBC doesn’t run Law & Order with Thompson on it, but TNT does.

By the way, I used the Colbert segment on the press exemption and his “Doritos sponsorship” as a teaching tool when we did a brief bit on the “press exemption” Monday. It was well received. (As a comedy stickler, I did find the “Doritos” element derivative of an old Leno routine, but that might be accidental).

UPDATE: Smarty-pants FOTS contacted me to note that the communications law would (could? does?) apply to original programming by cable entities, just not rebroadcasts a la TNT. I need to lecture in 10 minutes and if the Almighty smiles on me I might be able to look this up later. Those of you with definitive knowledge who would like to offer a citation may do so in the comments!

UPDATE 2: Welcome readers from other sites!  There’s more on Colbert-gate, as well as the likely climactic finish to this little drama.  Feel free to look around.

Tim Wu’s Slate series about tolerance for illegal activity has been up about a week, but I’ve been a little busy and am only now getting to it.  It’s very interesting stuff.

I’ve been trying to learn more about the Justice Department’s mid-20th century enforcement of the Corrupt Practices Act, and I suspect the sentiments Wu describes were alive and well in that context.  I think the Department, and lawyers generally, had problems with the broad expenditure limits, contribution limits, and corporate and labor bans in that law, when coupled with criminal liability.  (Unlike today, there was no civil campaign finance enforcement or responsible agency at the federal level, it was all criminal.)

Some authors maintain that the enforcement failures of this era were a result of bipartisan political cronyism, and that may be part of the story, too.  There may also be good reasons why the Justice Department thought the law was unconstitutional, and preferred not to risk creating bad precedent.  Or it may be a result of more subtle judgments like those described in Wu’s series.  One would expect the Department’s records from the era might contain useful and relevant material to answer some of these questions.

Maybe someday we will know.