Left-wing comedian Stephen Colbert loves to lampoon conservatives by posing as one on his Comedy Central television show, and creating caricatures of conservative arguments. But this month, one of his attempted jokes has backfired, making an accidentally brilliant point. In attempting to demonstrate how lax our campaign finance laws are, he has instead demonstrated how badly they can stifle free political speech — even comic political speech. Like many liberals, Colbert is bizarrely fascinated with the recent Supreme Court ruling in Citizens United vs. Federal Election Commission, which overturned some limits on political speech, including a ban on independent political spending by corporations that criticizes federal candidates shortly before their elections. Liberals have incorrectly assailed the decision as an open invitation for corporations to buy elections, and even for foreign money to influence the process.
In 2009, as the arguments in Citizens United were still being heard, Colbert mockingly described corporations as “an oppressed minority” and said he would stand up for their right to “speak in the only way they can: through billions and billions of dollars.” More recently, he took this parody to a new level by announcing that he would form his own political action committee, to bundle money and send it to candidates.
Unfortunately for Colbert, an attorney for Comedy Central’s parent company Viacom Inc. informed him that this would be illegal. Corporations like Viacom cannot donate to PACs, and Colbert’s constant mentions of his still-unformed PAC on the show would likely be considered an illegal in-kind contribution.
Refusing to take no for an answer, the comedian briefly considered instead forming a “super PAC,” which can take and spend corporate money independently, but cannot give to candidates. Here, too, Colbert was blocked by the legal department, which feared that even this might run afoul of the law. To resolve the matter, Colbert decided to ask the FEC directly about whether and how he could legally discuss his yet-to-be-formed PAC on television. He wants the panel to let him do so under the “media exemption.”
It’s funny, but probably not in the way Colbert intended. It turns out that our campaign finance laws are still so complex, restrictive and inconsistent — even after the Citizens United decision — that a comedian has to get special permission from the government to mock them as part of his comedy routine.
One can only guess how the FEC will respond to Colbert’s request for guidance. But what they should say is something similar to what Supreme Court Justice Antonin Scalia wrote in Citizens United — that Colbert, his donors, and Viacom, as groups of private citizens acting in concert, have the same free speech rights as anyone else.
“The [First] Amendment is written in terms of ‘speech,’ not speakers,” Scalia wrote. “Its text offers no foothold for excluding any category of speaker, from single individuals to partnerships of individuals, to unincorporated associations of individuals, to incorporated associations of individuals — and the dissent offers no evidence about the original meaning of the text to support any such exclusion.”
Stephen Colbert may be a joker, but he’s now learning the hard way that bureaucratic obstacles to his First Amendment right to free political speech are no joke.
Matthew Sheffield is President of Dialog New Media, a Virginia-based marketing and media firm.
