stephen colbert's federal election commission advisory opinion request

8/6/2019 Stephen Colbert's Federal Election Commission Advisory Opinion Request

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RFCE''-'>-'0FEDERAL ELECTIONCOMMISSIONZOIMAY 13 PIU:22

2011-1

OFFICE OF GENERALCOUHSELCapn&rDrysdaeA T T O R N E Y S

May 13,2011

Caplin 6 Drysdale, C harteredOne Thomas Circle, NW , Suite 1100W ashington, DC 20005202-862-5000 202-429-3301 Faxwww.caplindrysdale.com

' See, e.g..The Colbert Report, Citizens Unitedv. Federal Election Commission (Sept. 15,2009), available athttp://www.colbertnation.com/the-colbert-report-videos/249057/september-15-2009/citizeiis-united-v--federalelection-commissionjeflfrey-toobin; The Colbert Report, The Word - Invisible Inc. (Oct. 26,2010), available athttp://www.colbertnation.com/the-colbert-report-videos/363236/october-26-2010/the-wordinvisible-inc-.1

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Mr. P . Christopher Hughey, Acting General Counsel ^M s. Shawn Woodhead Werth, Secretary and Clerk SFederal Election Commission999 E Street, N . W . 3 S mWashington, D.C. 20463 p Z3 pn

R e: Advisory Opinion Request'^Colbert Super P A C " ^*?n 'Dear M r. Hughey and M s. Werth: ~This letter is an Advisory Opinion Request filed on behalf of Mr. Stephen Colbert. Mr.Colbert seeks the Commission's guidance on the formation and operation of "Colbert SuperP AC," a proposed independent expenditure-only committee that will endeavor to "mak[e] abetter tomorrow, tomorrow."This letter also constitutes notice to the Office of the Commission Secretary that M r.Colbert plans to appear before the Commission to answer questions regarding his AdvisoryOpinion Request.

I. BACKGROUNDSince 2005, M r. Colbert has hosted The Colbert Report, a half-hour television programthat is owned, distributed, and produced by U.S. subsidiaries of Viacom, Inc. (collectively,"Viacom"), a media company iiat s not owned or controlled by any political party, committee,or candidate. The Colbert Report is distributed on cable television and throu^ associatedIntemet sites.The Colbert Report discusses political actors, issues, and news through on-airmonologues and guest interviews, as well as other less conventional methods. The show hasaddressed campaign finance rules and controversies within this format on a regular basis.* WhileThe Colbert Report generally focuses on matters that do not involve M r. Colbert personally, M r.Colbert has placed himself in positions where his personal political actions and experiences canserve as material for the show. For instance, during the 2008 election cycle, M r. Colbert's "Hailto the Cheese Stephen Colbert Nacho Cheese Doritos 2008 Presidential Campaign" provided an


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Capn&DrysdaeC H A R T E R E Doccasion to engage The ColbertReport's audience on the topic of campaign-related rules andpaperwork. When Mr. Colbert and Jon Stewart co-hostedtiiewidely attended "Rally to RestoreSanity and/or Fear" on the National Mall in October 2010, The ColbertReportrepeatedlymentioned the event, invited audience members to attend, and used the opportunity to discuss thestate of political dialogue during the election.

Consistent with this pattem, Mr. Colbertrecently raised with The ColbertReport'saudience the idea of creatinghis own PAC, initially in the context of offeringcomment onGovemor Tim Pawlenty's leadership PAC activities. The idea of a"Colbert Super PAC" has todatebeenonly avehicle for discussing campaign-financerules and new developments in politics,such as Citizens Unitedand independent expenditure-only committees.Mr. Colbert now plans to forman actual federal independent expenditure-only committeenamed"Colbert Super PAC." Colbert Super PAC willmake only independent expenditures,advertisements that expressly advocate the election or defeat of aclearly identified candidate andthat are not coordinated with any candidate or political party. Colbert Super PAC willalso pay

usual and normal administrative expenses, includingbut not limited to, luxury hotel stays,privatejet travel, and PAC mementos fromSaks Fiftii Avenue and NeimanMarcus. It plans tomaintain awebsite, on which it willdiscusspolitical events, solicit contributions, and offeropinions on political matters. Colbert Super PAC will not make any contributions to, orcoordinate its expenditureswith, any candidate or any other political committee. Colbert SuperPAC intends to solicit and accept unlimited corporate contributions, unlimited individualcontributions,unlimitedpolitical-committee contributions, and unlimited laborcontributions.Colbert Super PAC willreport contributions, expenditures (including independent expenditures),receipts, and disbursements as required by Commissionrules.Colbert Super PAC will register as a non-connected committee with the Commission.

Viacom will not pay for Colbert Super PAC's establishment and administrative costs under 11C.F.R. 100.81,100.141 (exemption fix)m "contribution" and "expenditure" for corporate-connected a "separate segregated fund"). Furthermore, neither Viacom nor its corporatemanagement will control or direct Colbert Super PAC's activities. Viacom will merely continueto perform its regular review process applicable to the content of any Viacom show, includingThe Colbert Report.OnceColbert Super PAC is established, it willcontinue to provide an on-air premise fordiscussing campaign-financemles and other aspects of Americanpolitics. As with similarinstances in the past, Mr. Colbert intends to use the PAC's activities as a source of on-air

^ See, e.g., The Colbert Report, Hail to the Cheese - Campaign Coverage Finance (Oct. 8,2007), available athttp://www.colbertnation.com/the-colbert-report-videos/118650/october-18-2007/hail-to-the-cheesecampaign-coverage-finance.^ See, e.g.. The Colbert Report, President ObamaEndorseRally to Restore Sanity (Sept. 30,2010),http://www.colbertnation.com/the-colbert-report-videos/360638/september-30-2010/president-obama-endorses-the-rally-to-restore-sanity.* See, e.g.. The Colbert Report, Colbert Super P A C - TrevorPotter (Apr. 25,2011), available athttp://www.colbertnation.eom/the-colbert-report-videos/382014/april-14-2011 /colbert-super-pactrevor-potter.


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Capn&DrysdaeC H A R T E R E Dmaterial for The Colbert Report. For instance, he plans to reference Colbert Super P A C ' swebsite, describe its operations, and mention audience participation opportunities. In so doing,M r. Colbert may show examples of independent expenditure ads created by the P AC. TheColbert Report's distribution, production, and unique format will not be altered because ofColbert Super P AC content.

M r. Colbert now submits this Advisory Opinion Request to receive clarification andguidance from the Commission conceming Colbert Super P A C ' s operation, particularly theproper categorization and reporting of airtime and associated costs.

II. QUESTIONSPRESENTED AND ASSOCIATED DISCUSSION

A. MayMr. Colbert Form anIndependent Expenditure-Only Committee thatAccepts Unlimited Corporate Contributions, Unlimited IndividualContributions, Unlimited Political-Committee Contributions, and UnlimitedLabor Contributions?

M r. Colbert requests confirmation that he may establish Colbert Super P AC, anindependent expenditure-only committee. In 2010, the U.S. Supreme Court ruled thatcorporations could make unlimited independent expenditures using corporate treasury fluids andthe D.C. Circuit Court held that individuals could make unlimited contributions to independentexpenditure-only groups. After these court rulings, the Commission advised CommonsenseTen, a group that intended only to make independent expenditures, that it could register with theCommission and permissibly "solicit and accept unlimited contributionsfrom ndividuals,political committees, corporations, and labor organizations." Colbert Super PAC will, in allmaterial respects, be identical to Commonsense Ten because the P AC intends only to makeindependent expenditures and will not offer any monetary or in-kind contribution to any otherpolitical committee. M r. Colbert therefore believes that his establishment of Colbert Super P ACis permitted. M r. Colbert asks the Commission to verify this conclusion.

^ M r. Colbert anticipates that other media outlets will also discuss Colbert Super P A C ' s activities. See e.g., DanEggen, Colbert Announces Super P AC, WashingtonPost.com (Apr. 15,2011), available athttp://www.washingtonpost.com logs/44/post/colbert-announces-a-super-pac/2011/04/15/AFZCBYjD_blog.html.^ Citizens Unitedv. F E C , 130 S.Ct. 876,913 (2010).' See SpeechNow.org v. F E C , 599 F.3d 686,689 (D.C. Cir. 2010) ("the contribution limits of 2 U.S.C. 441a(a)(l)(C)and 441a(a)(a)(3) are unconstitutional as applied to individuals' contributions to SpeechNow"); see also EMILY'sList V. F E C , 581 F.3d 1,10 (D.C. Cir. 2009) ("... individual citizens may spend money without limit (apartfrom helimit on their own contributions to candidate or parties) in support of the election of particular candidates").' Fed. Election Comm'n Adv. Op. 2010-11 at 3.


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Capn&DrysdaeC H A R T E R E DB. IfColbert Super PAC isDiscussed on The ColbertReport, ShouldAirtimeandRelated Costs BeReported as a Lawful In-kind Contribution or Will theCosts BeExempt fromReportingRequirements under the 'TressExemption"?

M r. Colbert asks for guidance on Colbert Super P A C ' s reporting obligation for airtimeand relatedproduction and personnel costs.Political committees, including independent expenditure-only committees, must discloseall contributions received. Commission regulations define "contribution" to include "anything ofvalue" for the purpose of influencing a federal election. However, Commission regulations alsoexempt from that definition "any cost[s] incurred in covering or carrying a news story,commentary, or editorial by any broadcasting station (including a cable television operator,programmer or producer) ... unless the facility is owned or controlled by any political party,

political party committee, or candidate."'If Colbert Super PAC is discussed on The Colbert Report, will the value of airtime andrelated costs be reported as a lawful in-kind contribution from Viacom or will the costs beexempt from reportingrequirements under the "press exemption"?

1. The "Press Exemption" Applies to ViacomThe Commissionconducts a two-step analysis to determine whether the "pressexemption" applies. First, the Commissionasks whether the entity engaging in the activity is apress entity under Commission mles.** Second, in determining the exemption's scope, theCommission considers: (1) whether the press entity is owned or controlled by a political party,committee, or candidate; and, if not, (2) whether the press entity is actingas a press entity in

conducting the activity at issue (i.e. whether the entity is acting in its "legitimate pressfunction").*^ If the press entity is not owned or controlled by any political party, politicalcommittee, or candidate, and if it is acting as a press entity withrespect to the conduct inquestion, the Commission lacks subject matter jurisdiction over the conduct.*Here, Viacom's activities make clear that it is a press entity. In fact, th e Commission hasspecifically held on a prior occasion that Viacom is a press entity. ^ Moreover, M r. Colbertbelieves that Colbert Super P A C discussion on The Colbert Report is fully within th e pressexemption because Viacom is not owned or controlled by a political party, committee, orcandidate and because Viacom will act in its legitimate press function by distributing TheColbert Report.

'11 C F . R . 100.52.' 11 C.F.R. 100.73." See, e.g.. Fed. Election Comm'n Adv. Op. 2005-16 at 4.

See Reader's DigestAssociation v. FEC, 509 F.Supp. 1210,1215 (S.D.N.Y. 1981)." F E C v . Philips Publishing, Inc., 517 F.Supp. 1308, 1313 (D.D.C. 1981).

Fed. Election Comm'n Adv. Op. 2003-34 at 3.


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Capn&DrysdaeC H A R T E R E D

a. VIACOM IS NOT OWNED ORCONTROLLED BY APOLITICAL PARTY, COMMITTEE, ORCANDIDATEViacom is not owned or controlled by a political party, committee, or candidate.

Notably, "Commission decisions ... have never found that a [host] 'owned or controlled' theentity for purposes of the press exemption on the basis that the [host] had a role in determiningprogram content," even when the host exercised total control over a non-scripted live program'scontent.'^ Viacom is therefore not owned or controlled by Colbert Super PAC regardless of theextent to which Mr. Colbert, a PAC representative, helps formulate and deliver content on TheColbert Report.b. VIACOM WILL ACT IN ITSLEGITIMATE PRESS FUNCTIONBY DISTRIBUTING THE COLBERT REPORT AFTERCOLBERT SUPERPAC'S FORMATION

Viacom willact in its core legitimatepress function inproducingandbroadcasting TheColbertReport after Colbert Super PAC is formed. TheCommissionconsiders two main factorsindeterminingwhether anentity acts in its legitimate press function.First, the Commissionascertains whether the programming is availableto thegeneralpublic.' Here, this element is easily met, asTTie ColbertReport, includingfuture segmentsmentioning Colbert Super PAC, will beavailable to the general public through cable televisionand on the Intemet.Second, the Commissiondecides whether theprogramming is comparable informto thatordinarily issued by the press entity.* This portionof the "press exemption" testhas been

frequently analyzed. A press entity couldconceivably fall outside the exemptionwhere itutilizes anunconnectedmediumorundertakes extraordinaryefforts that go beyond itsnormalpress activities to aida federal candidate orcommittee.* However, given the First Amendmentconcems implicatedbyregulationof thepress, as well as theeditorial andcreativediscretionrecognizedby the "press exemption," the Commissionhas generally given wideberth to themediaandtreatedwith deferenceanycontent variations that occur within aprogram's normalFed. Election Comm'n MUR 6242, First General Counsel'sReport at6 (Hayworth) (Commission ratified Office

of General Counsel'sreport, 6-0). See also Fed. Election Comm'n MURs 5555 (Ross) and4689 (Doman).Fed. Election Comm'n Adv. Op. 2008-14 at 5.

" Fed. Election Comm'n Adv. Op. 2000-13.FEC v Mass. Citizens forLife, 479 U.S. 238 (1986) (fmdingthat a special editionnewsletterwas not subject tothepress exemptionbecause it "was not published through the facilities of the regular newsletter,...was notdistributed to the newsletter's regularaudience," and no"characteristicofthe [special e]dition associated it in anyway with the normal MCFL publication."). See also Fed. Election Comm'n MUR 4689, Statementof Reasons byCommissioners Wold, Elliott, Mason, andSandstromat3 ("Because itdoes not appear that Mr. Doman was invitedtoserve as aguest host becauseof anypossiblecandidacy, the Commission's analysis in three advisoryopinionsreliedon by the General Counsel's Report, Advisory Opinions1996-16,1906-41, and1996-48, inwhich theCommissionreviewed proposed formats indeterminingwhether particular programfeaturingcandidates fell withinthe press exemption, is not applicable tothis matter.")


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Capn&DrysdaeC H A R T E R E Dformat. This is tme evenwhere, unlike here, the person hostingashow becomesa candidate.Forexample, the Commission last year unanimously found that the "press exemption" applied toPhoenix radio station KFYI's broadcasts of TheJ.D. HayworthShow? Theshow's host, asoon-to-beU.S. Senate candidate, spent at least10percent ofprogramming timediscussing hisupcoming candidacyandKFYI posted online content mentioning the host as acandidate. TheCommission ultimately found that KFYI fell within the "press exemption" because thebroadcasts were "comparable inform tothose broadcasts of the Showordinarily issued by theentity, which broadcastsmaintained a 'newstalk' format consistingof 'news, commentary, andeditorial' material ona varietyof topics." ^ Similarly, the Commission applied the"pressexemption" to threeradio stations whenaguest host, who was a federal candidateduringat leastone of theappearances, ^ repeatedly promotedhis candidacy andcriticized his opponent over theairwaves byclaiming, amongother things, that she had wonaprevious electionbyvoter fraud,lied in hercampaign "attacks" on him, committed a felony, broken her campaign promises, andvoted for"infanticide." Despite these unusual statements, the Commission foundthat theradiostations acted intheir legitimatepress functions. ^

Consequently, the Commission'sprevious decisions strongly support the conclusion thatTheColbertReport is comparable in formtoprogramming ordinarilyproducedanddistributedbyViacom. To the extent programcontent isrelevant to the Commission, the additionofsegments that discuss Colbert Super PAC after its formationwill fall well within the traditionaleditorial framework of the show. TheColbert Report has since2005 discussedcampaign financeandother political issues, at times doing so in the context of Mr. Colbert's personal activities.Colbert Super PAC discussionon TheColbert Report will thereforebeconsistent with priorprograms. Most importantiy. TheColbertReport's distribution, production, andunique formatwillnot bealteredbecauseof Colbert Super PAC content. Viacom will therefore act in itslegitimate press functionbyproducinganddistributing in its normal course TheColbertReport,includingsegments that discuss Colbert Super PAC.

Indeed, some past Commissioners haveexpressed the view that Commission inquiry into amessage'scontent isprohibited for purposes ofa"press exemption" analysis. See, e.g. Fed. Election Conun'n MUR 5555, Statement ofReasons forCommissioners Toner, Mason, and vonSpakovsky at3 (Ross) ("The content ofanews story,commentary, or editorial is irrelevant"); Fed. Election Comm'n MUR 4689, StatementofReasons byCommissionerMasonat 2 (admonishingagainst "any inquiry into thecontent of the broadcasts at issue").^ Fed. Election Comm'n MUR 6242 (Hayworth).' Fed. Election Conmi'n MUR 6242, ResponsefromClear Channel Conununications, Inc. at9 (Hayworth).^ Fed. Election Comm'n MUR 6242, First General Counsel'sReport at 6 (Hayworth).^ Thehost hadan open campaign committeethat hadraised hundreds of thousands ofdollars. Hehad formallydeclared his candidacybefore at least one of theradio appearances. Fed. Election Comm'n MUR 4689, FirstGeneral Counsel's Report at 7-9(Doman).^ Fed. Election Comm'n MUR 4689, First General Counsel'sReport at 16(Doman) (vote4-2 toreject GeneralCounsel'srecommendations). See also Fed. Election Comm'n MUR 5555 (Ross) (Commissionvoted unanimouslytoapply the"press exemption" when

See Fed.Election Comm'n MUR 4689, Statement of Reasons byCommissioners Wold, Elliott, Mason, andSandstromat2 (Doman).


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Capn&DrysdaeC H A R T E R E D 2 Viacom'sExpenses Associated with the Discussionof Colbert Super PACShould Fall within the Scopeoftiie"Press Exemption"

a. VALUE OF TIME SPENT DISCUSSING COLBERT SUPERPACMr. Colbert seeks confirmation that noneof Viacom'snormal expenses associatedwithcreating, producing, anddistributing TheColbert Report will bea reportable in-kindcontributiontoColbert Super PAC if Mr. Colbert talks about the PAC on his show. This typeofdiscussionfalls well within the traditional subject matter of TheColbertReport and should beafforded, atthe very least, the same application of the "press exemption" the Commissionhas providedtodiscussions of election-related subjects bytalk showhosts who becomecandidates.

b. VALUE OF TIME SPENT EXPRESSLY ADVOCATING THEELECTION OR DEFEAT OF CANDIDATESIt ispossible that during TheColbert Report, Mr. Colbert willdiscuss a candidate thePAC will support or oppose through independent expenditures. This type of discussionwillbesimilar topress editorials or commentariesendorsingcandidates or urging support ofpoliticalcommittees other media outletsregularlyundertakeunder the "press exemption." Therefore, Mr.Colbert asks the Commission toconfirmthat the inclusion of this type ofdiscussionwill beconsidered exempt fromthe definition of contribution under the "press exemption" andwill notbereportable byColbert Super PAC as an in-kindcontribution fromViacom.

c. COSTS RELATED TO ADS SHOWN O N THE COLBERTREPORTIn talkingabout Colbert Super PAC, Mr. Colbert may show on TheColbertReportindependent expenditure adsproduced for the PAC. Viacom staffnormally involved in writingandcreatingmaterial for TheColbertReport mayparticipate increating the ads featured aspartof their work. These independent expenditure ads will beused ascontent for The ColbertReport. Some, but not all, ads wouldbeshownonly on TheColbertReport in the context ofdiscussionofpolitics andColbert Super PAC, andneither Mr. Colbert nor the PAC would buyairtime to show those ads onother shows or networks. Other ads wouldbe shownon TheColbertReport duringdiscussionofpolitics andColbert Super PAC, but would also air aspaidadvertisements onother shows andnetworks before or after being featuredon TheColbertReport. Mr. Colbert asks the Commission toverify that inboth of these contexts, Viacomemployees' time increatingan ad, the use of Viacom's productionresources in producingthe ad,and the valueof The ColbertReport airtimeused to show the ad wouldbeexempt fi'om thedefinition of contribution under the "press exemption" andwouldnot bereportableby ColbertSuper PAC as an in-kindcontribution fromViacom.


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Capn&DrysdaeC H A R T E R E D

d. OTHERCOSTS NECESSARYTOSUSTAINCOLBERTSUPERPAC

The idea for Colbert Super P AC arose from a discussion on The Colbert Report by M r.Colbert about politics and campaign finance issues. Once M r. Colbert creates Colbert SuperP A C , certain activities (including the filing of reports, and the design and production of awebsite) will be necessary for the P AC to remain operational and visible so that it can continueto provide material for The Colbert Report. Potentially, staff of the show may undertake thesetasks as part of their work for The Colbert Report, using Viacom's resources (e.g. officeequipment). M r. Colbert asks the Commission to confirm that this staff imeand resource use,except any costs for P AC solicitations, would be exempt from the definition of contributionunder the "press exemption" and would therefore not be reportable by Colbert Super P AC as anin-kind contribution from Viacom.

C. If Colbert Super PA C Receives In-KindContributions fromViacom, May ItSolicit andAccept Contributions from the General Public?M r. Colbert seeks confirmation that Colbert Super P AC may solicit and acceptcontributions fi:om the general public, even if any of the support it receives from Viacom istreated as an in-kind contribution. The Commission previously advised that Club for Growth'sindependent expenditure-only committee could "solicit and accept contributions from the generalpublic" when the committee was managed by Club for Growth's president and the committee'sestablishment, administration, and solicitation costs were entirely defrayed by Club for Growth,a corporation. The relationship between Colbert Super P AC and Viacom is even less formaland extensive than the arrangement previously reviewed by the Commission. Therefore, M r.Colbert believes that Colbert Super P A C ' s acceptance of in-kind contributionsfromViacomshould not limit the P A C ' s ability to solicit and accept contributions from the general public. He

asks the Commission to confirm this conclusion.III. CONCLUSION

M r. Colbert respectfully requests the Commission's imelyconsideration o f this AdvisoryOpinion Request and guidance on this important venture.Sincerely,

Trevor PotterJoseph M . BirkenstockMatthew T. SandersonCaplin & Drysdale, Chtd.

26 Fed. Election Comm'n Adv. Op. 2010-09 at 3.

stephen colbert's federal election commission advisory opinion request

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