Skepticseye.com

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.