October 25, 2007

Does Viacom Get the Media Exemption for Stephen Colbert's Promotion of His Candidacy on the Colbert Report?

Allison Hayward says yes, and Cliff Jones, in comments to her post, agrees. I'm leaning towards no, but the issue is not a slam dunk.

Here's the relevant law. 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.

There's a definite irony in this interpretation, in that it treats satirists who want to run for President worse than serious candidates who have a broadcast platform and want to use it to promote their candidacies for federal office. Thus, imagine if Bill O'Reilly were running for president. His (less hilarious) show includes real political commentary, so, under this interpretation, O'Reilly would have a stronger case for the media exemption. (This would bother the NY Times editorial board greatly).

Given the dearth of caselaw and useful FEC commentary on this question, we might well ask two questions to figure out how this case should come out. First, what is the purpose that the ban on funding from corporate treasury funds is meant to further? Second, given that purpose (or purposes), what is the justification for the media exemption. I imagine that many of us would answer those questions differently---and the answers we give could provide better guidance on how to treat a question like Viacom's promotion of a Colbert candidacy.

Bob Bauer is right that this joke could end up putting the FEC in a pickle. But the joke does provide a nice excuse to think about these important questions.

UPDATE: Both on and off the election law listserv, those who oppose campaign finance regulation argue that it is a First Amendment violation for the government to be in the business of deciding something like whether the commentary on the Colbert Report constitutes "news, commentary, or editorial."

This is a classic argument of deregulationists. Perhaps the best statement of the position is Justice Scalia's in his dissent in Austin v. MIchigan Chamber of Commerce. The question arises periodically when there are cases pushing the distinction, as in the controviersies over NRA News and Michael Moore in the last election, or over the FEC rulemaking question over who gets the media exemption in the Internet age.

In fact, the position of Brad Smith or Patterico could well become the position of the Supreme Court if it were to revisit the media exemption post Austin. But it is not the view of the First Amendment now, which recognizes (1) a right to limit corporate and union spending on certain political advertising to prevent the distortion of the political process (what is in effect an equality rationale for campaign finance reform) and (2) a desire to carve out an exemption from this rule for bona fide news stories and commentaries in news and opinion media. Colbert's case is only the most recent one that is close to the line.

The argument over the media exemption is usually used as a foot in the door to argue against any limit on corporate spending. And the argument has some force, as I've explained in what is probably the most controversial article I've ever written, Campaign Finance Laws and the Rupert Murdoch Problem, 77 Texas Law Review 1627 (1999). In that article I say that if this country were ready to take the equality rationale for campaign finance regulation seriously, we wouldn't have a media exemption for express advocacy even by media corporations. (I believe that Sen. McConnell denounced me by name for this article on the floor of the Senate some time back.) My current view is that many in this country are willing to live with some inconsistency, wanting both a limit on corporate spending on elections and an exemption for those corporations that act as news media. It may not be intellectually coherent, but it is a desirable political compromise, and one I'm no longer tempted to argue against.

But if we are going to have this distinction, there will continue to be cases close to the line. I doubt that Stephen Colbert is trying---a la Jim Bopp---to create a test case to go to the Supreme Court to strike down a major pillar of campaign finance law. But we could end up there pretty soon, either from Colbert or another challenge in the near future.

For more see this report in the Politico and this NY Sun editorial.

Posted by Rick Hasen at October 25, 2007 04:27 PM