Stephen Colbert's Latest Lesson in Campaign Finance Absurdity

John Hudson 9,194 Views Jan 18, 2012

In his deepest dive yet into the intricacies of campaign finance law, Stephen Colbert blazed through a series of open-ended questions about super PACs last night, and even schooled at least one seasoned political reporter. The Comedy Central host's sketch was prompted by a simple question: What can he and super PAC conspirator Jon Stewart get away with without technically breaking the law? Here's what they came up with.

One-way coordination with super PACs The whole question of illegal campaign coordination between Stewart and Colbert was first raised by former Politico reporter and current BuzzFeed editor Ben Smith, who noticed this week that Colbert seemed to be illegally coordinating with his super PAC when he released his "Vote Cain" ad. Colbert highlighted Smith's line of questioning on his show:

"Stephen Colbert begins taping at around 7:30 p.m., and he detailed his 'Vote Cain' strategy ... on last night's show. Meanwhile, The Colbert Super PAC released a slick 60-second 'Vote Cain' ad before that Colbert Report episode even hit the air. How did both production-intensive video segments get made within hours of each other without illegal coordination?"

"To some in the media, this smells fishy," noted Colbert. In reality, what Colbert did was perfectly legal. Stewart simply told Colbert about the ad campaign ahead of time. And according to Colbert's trusty lawyer Trevor Potter, that's OK:

You see it's perfectly legal, according to former FEC chairman and my and Jon's lawyer Trevor Potter. Evidently, non-coordinating just means I can't help them or approve what they're doing. But I can know in advance know what they've done. That's not coordinating. That's just ... ordinating. Information can go one way but not the other. It's like a one-way membrane. Basically, a money placenta. I give him nothing and Jon nourishes me in a warm amniotic bath of strategy and cash until I slide out all wet and electable. All true, All true. We checked. Jon and I don't even need to be psychic.

Hilarious fetal description aside, the point comes away loud and clear: A super PAC can send messaging and strategy planning to the candidate it supports, it just can't receive instructions back from the candiate. Or can it?

Public super PAC coordination On Jon Stewart's program, the issue of coordination was delved into even further, showing that legal super PAC coordination can go beyond simple one-way discussions. Stewart began the discussion by highlighting Mitt Romney's statements that super PACs can't coordinate in any way. “I’m not allowed to communicate with a super PAC in any way, shape or form," he said on MSNBC. "My goodness, if we coordinate in any way whatsoever we go to the big house."

Not true, however. To explain the legal loophole that allows coordination between super PACs and candidates, he brought on Colbert to discuss, as he put it, the" loop-chasm." "I can't tell you but I can tell everyone through television," Colbert said. Though the legal technicality that Colbert was explaining may not have been completely clear, he was referring to federal election law that states that coordination between candidates and super PACs is legal if it comes from a "publicly available source." In this case, that public source is television and he and Stewart talked to each other to great comedic effect:

The super PAC safety net Last of all, Stewart asked lawyer Trevor Potter what would happen if he ever had to pay a fine in the event where he actually did illegally coordinate with Colbert. As Potter notes, it could be in the "four to six figure" range. That was a terrifying prospect to Stewart until he realized he could just use super PAC money to pay the fine. Voila!

Want to add to this story? Let us know in comments or send an email to the author at jhudson at theatlantic dot com. You can share ideas for stories on the Open Wire.
John Hudson

Presented By