WASHINGTON -- A triumphant Stephen Colbert announced to a cheering crowd of fans ouside the Federal Election Commission on Wednesday that the commission had approved the formation of his Super PAC, named "Colbert Super PAC."
"I am here to represent your voice so you can all hear what you have to say through my mouth," Colbert said to laughs before announcing to cheers, "I'm sorry to say, we won!"
Colbert had asked the FEC two months ago whether he could open a Super PAC, a type of political committee that can receive unlimited funds from corporations, unions and individuals to spend only on independent expenditures but not specific candidates, and asked whether Viacom, the parent company of Comedy Central, would be required to disclose its funding of the Super PAC as an in-kind contribution or if their backing could remain private under the press exemption.
The commission approved an advisory opinion by a vote of 5-1, stating that Colbert could open the Super PAC and that Viacom was a legitimate press organization. However, the commission said the Viacom's press exemption would only apply on Super PAC ads aired on the "Colbert Report." If the Super PAC were to place advertisements on any other media, that would count as activity outside of the press exemption and Viacom would be required to disclose their payments to staff who worked to create the ads for both the Colbert Super PAC and the "Colbert Report" as in-kind contributions.
Campaign finance reformers had worried that Colbert's request could potentially open the door to a broad press exemption, allowing political activists connected to media companies to hide funding for political activities from the public. Both the Campaign Legal Center, whose chairman Trevor Potter served as Colbert's lawyer, and Democracy 21 urged the commission to reject the broadened press exemption sought by Colbert and Viacom.
The Campaign Legal Center's FEC Program Director Paul Ryan said in a statement: "An opinion by the FEC permitting all that Mr. Colbert requests would have a sweeping and damaging impact on disclosure laws and the public’s right to know about campaign finance activities."
Democracy 21's Fred Wertheimer stated, "The ‘press exemption’ in the campaign finance laws simply does not apply to allow a corporation like Viacom to secretly finance independent ads for Mr. Colbert’s Super PAC, nor does it allow Viacom to secretly pay for the administrative costs of the Colbert Super PAC.”
Prior to the Citizens United v. FEC Supreme Court ruling ,the press exemption provided the one outlet for corporate spending in elections. It was intended to prevent the chilling of speech from media organizations when they commented on political matters, including endorsements of candidates. After the Citizens United ruling, all corporations, not just approved media companies, were allowed to spend freely on elections, so long as that spending was made in the form of independent expenditures and not as direct contributions to candidates or parties.
The only no vote on the advisory opinion came from Commissioner Donald McGahn. McGahn worried about defining what constituted as commentary, whether that be on the actual program hosted by Colbert or in the purchasing of advertisements on other stations and shows.
"Commentary is kind of a slippery concept," McGahn said, "I'm not sure that this press test fits." McGahn explained that the definition of media was blurring due to technological advances and he did not want the FEC to start defining what was an acceptable form of media for businesses and individuals.
Colbert explained his desire to keep the Super PAC from having to disclose any contributions while addressing the crowd outside the FEC.
"I don't know about you, but I do not accept limits on my free speech. I don't know about you, but I do not accept the status quo. But I do accept Visa, Mastercard and American Express. Fifty dollars or less, please because then I do not need to keep a record."
Commissioner Ellen Weintraub supported the ruling, but noted that things could have gone a different way had Colbert presented his request as a form of parody rather than a serious political matter: "Had we viewed this as parody ... we could have viewed this differently." She explained the history of freedom for parody in America stretching from Saturday Night Live to Will Rogers or to, as she put it, "maybe someone in Revolutionary times standing on a soap box making fun."