Stephen Colbert’s Confused Parody of Citizens United

Responding to the growing trend of Fox News personalities (Sarah Palin, Mike Huckabee, etc) forming PACs and promoting them on the air, Stephen Colbert recently announced plans to create a PAC of his own. But then he got a letter from a Viacom lawyer (which he of course read on the air) informing Colbert that his promotion of the PAC on-air could constitute an “in-kind donation” by Viacom to the (not yet created) PAC, and that Viacom could therefore be guilty of violating federal law if Colbert actually created it. So on Friday, he made a media stunt out of traveling to the FEC to ask for a “media exemption,” which allows members of the news media to ignore campaign finance laws that apply to everyone else:

Colbert’s shtick is to play a buffoonish right-wing pundit who spouts ridiculous arguments that the audience is supposed to root against. So I think the idea is that we’re supposed to think it’s ridiculous that Stephen Colbert would use his position as a media personality to raise money for a PAC that would then attempt to influence elections. But there’s some serious cognitive dissonance going on here. Colbert’s parody beautifully, if inadvertently, illustrates what’s wrong with the liberal critique of the Citizens United decision.

In progressive mythology, Citizens United is a case about whether large corporations like BP, Verizon, and Pfizer can use their vast resources to buy ads that drown out the voices of other participants in the political debate and sway elections toward candidates they favor. This is a real problem, and I think Senators McCain and Feingold sincerely believed the legislation that bears their names would help solve it.

But “corporations” include many entities beyond the Fortune 500. The ACLU, Sierra Club, and Human Rights Watch are all corporations. “Free speech for corporations” might sound insidious if the corporation in question is Exxon Mobil. But it’s harder to get worked up about the corrupting influence of “corporate speech” when we’re talking about the ACLU running television ads criticizing a candidate for supporting the Patriot Act.

Under the First Amendment, citizens are entitled to buy ads criticizing a political candidate, especially in the last 30 days of an election. And a group of citizens who lack the resources to buy ads individually are entitled to use the corporate form to pool their resources and buy those ads collectively. That’s what Citizens United (the non-profit conservative organization) was doing when it bought ads promoting an anti-Hillary Clinton movie during the 2008 primaries. And in Citizens United (the Supreme Court decision) the high court affirmed their right to do so.

Which gets to the weirdness of Colbert’s parody. Stephen Colbert is trying (or at least pretending) to create a vehicle for his fans to pool their money so that Colbert can create ads “promoting” (mocking) conservative candidates. The ads are guaranteed to be funny, and they could also influence 2012 political races. I think that’s a brilliant idea, and I’m glad that the Supreme Court has affirmed Colbert’s (and his fans’) right to engage in this type of political speech. Colbert, in contrast, seems to be mocking his own free of speech rights. By asking us to root against Colbert-the-character’s quest for a PAC, Colbert-the-comedian seems to be implying that it’s ridiculous that the law would allow him to create such a PAC. But it isn’t ridiculous. Colbert should be free to create the PAC, people should be free to give to it, and Colbert should be free to tell people about the PAC on his show.

I think Colbert’s response would be that although Colbert’s PAC will mostly get donations from his fans, the “bad” PACs he is parodying take much larger (and more corrupting) donations from large, for-profit corporations. But this isn’t how free speech jurisprudence works. For censorship to pass constitutional muster, it needs to be narrowly tailored to a compelling governmental interest. Maybe the First Amendment allows Congress to regulate certain kinds of corporate speech, but if so it still requires Congress to do it without censoring other, constitutionally protected speech. And it’s hard to see a plausible rationale for regulating the political speech of the ACLU, the Sierra Club, or (yes) the Colbert Super PAC.

And as much as liberals might not like it, the same point applies to Sarah Palin and Mike Huckabee. They’re not my favorite politicians, and I doubt I’ll like how they spend peoples’ donations. But the fact is that millions of American voters share Palin and Huckabee’s politics. They’re entitled to have their views represented in the political arena, and giving to a PAC run by Palin or Huckabee seems like a reasonable way to do it. There’s nothing alarming or corrupt about them using the soapbox Fox News provides them to inform their viewers about this opportunity to participate in the political process.

Laws that restrict this kind of grassroots political activity—or the use of corporate-owned television networks to promote it—are inconsistent with the First Amendment. If Congress wants to address political corruption problems, it has an obligation to do it without burdening the political speech of people like Stephen Colbert. Colbert doesn’t seem to understand this point, but his antics are proving it anyway.

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21 Responses to Stephen Colbert’s Confused Parody of Citizens United

  1. billb says:

    I don’t think you have Colbert right here at all. Not everything he does is in Bizzaro World. Colbert is definitely not asking (or “asking”) us to root against his PAC.

    Colbert seems to have two models. The first, as you note, is the setting himself up as a faux conservative with over-the-top conservative positions that we can love to have. But there’s a second shtick which involves him simply outright mocking absurd positions that are held by others in the world.

    Recall that this PAC business has its roots in his “run” for the presidency in 2008 (which was sponsored by Doritos). This year he’s setting up a PAC, like all the other pundits who are thinking about running or thinking about thinking about running, presumably to raise money in support of his campaign for 2012. By doing this, he’s straight up mocking both the conservative pundits that have these PACs, are being cagey about whether they will run or not, and are leveraging their talking-head positions at Fox News and other places for free advertising in advance of their announcements, and he’s outright mocking the exact sort of anti-free-speech attitudes prevalent on the left that you point out.

    Colbert clearly wants us to support the formation of his PAC so that he can continue to mock politicians through his upcoming real/faux presidential campaign.

  2. he’s outright mocking the exact sort of anti-free-speech attitudes prevalent on the left that you point out.

    It would be awesome of that were true. Colbert has the luxury of mocking everyone simultaneously and being ambiguous about which side he’s “really” on. But if he’s mocking censorious liberals, most of them don’t seem to realize it.

  3. billb says:

    But if he’s mocking censorious liberals, most of them don’t seem to realize it.

    True, but that’s not my problem. There are very few sacred cows that don’t get gored on his show.

  4. jk says:

    It strikes me as obvious that Stephen Colbert is trying to educate his viewers on current American political processes by engaging in them. So by pretending to run for office or creating his PAC he is telling his viewers a lot about how politics in America works. Can you think of any clearer demonstration of Fox news’s propaganda mission than the explanation, on Colbert’s show from Colbert’s lawyers, about the legal loopholes that allow those PACs.

  5. mike says:

    Don’t completely rule out the possibility that he is in fact trying to raise an enormous amount of money with the goal of affecting the election in a very real way. It is plausible he could raise an amount in the tens of millions; perhaps he feels a response to corporate money in politics is needed. If organized, the “people’s money” would far outweigh corporate money.
    Although I suspect that even Colbert is not sure where he is going with this, and that’s ok….it’ll be interesting

  6. Rico says:

    I take your point that Colbert, as an American citizen, should be able to say what he wants (and raise money) to influence the election, but the existence of these PACs means that one need not be a citizen at all in to have such influence. Why should George Soros (not an American citizen) have more of a vote (so to speak) in the American elections than you or I?

  7. Scott F. says:

    In progressive mythology, Citizens United is a case about whether large corporations like BP, Verizon, and Pfizer can use their vast resources to buy ads that drown out the voices of other participants in the political debate and sway elections toward candidates they favor. This is a real problem…

    Tim – what do you see as the remedy for this real problem, given how free speech jurisprudence really works?

  8. Jon says:

    Force the disclosure of donor’s names and then I would not have as big a problem with Citizen’s United. If someone wants to spend millions, then we should have the right to know the name of that someone.

  9. Scott: I haven’t given this enough thought to endorse a specific proposal, but transparency seems like a good idea, and I’m sympathetic to something like Lessig’s public financing proposal. Generally speaking I think the way to combat speech is with more speech.

  10. JohnMcG says:

    For some time I’ve thought that Colbert’s political humor relies a bit too much on pandering to his (mostly liberal) audience’s sensibilities. Jon Stewart is able to occasionally challenge his viewers’ orthodoxies; Colbert either lacks the ability to do that or the guts to try.

    In this case, Colbert is going for the easy laugh — the Supreme Court thinks corporations are people! How absurd!

    It’s probably a bit unfair to compare him to Stewart, who is probably as brilliant at political satire as anyone ever has been, but his time slot and the genesis of his program invite the comparison. IMO, Colbert’s wheelhouse is his pre-taped segments that typically run after the first commercial.

  11. Aaron Cohen says:

    This isn’t about mocking conservative candidates let alone espousing a particular political agenda. It’s about exposing the American institutionalization of political bribery.

    If you watch the entire series of segments Colbert has produced on this topic, you will see how he makes a big deal about the paperwork. In each segment, he literally adds another cover sheet to his FEC application. Each cover sheet (PAC to Super Pac, advisory opinion request, etc.) is a bureaucratic magic wand our leaders have sanctioned as a means of injecting unlimited money into the political process.

    It’s a farce, it’s a sham, and no media outlet or “legitimate” journalist has done as good a job exposing it as Colbert.

  12. Jess says:

    What Aaron said above makes a great deal of sense. I don’t watch Colbert much, but this seems consistent with what I’ve seen.

    Even if one agrees completely with Tim’s original point, however, on a different level this sort of performance is bound to contradict itself. What is the point of constructing all these elaborate procedures by which Colbert (or indeed, the “real” conservatives on Fox) must speak to “the” people, when he (and they) speak directly to millions of people every day? Why worry about where to draw the boundaries that designate corporate speech, when all of these TV bloviators speak on behalf of (the bottom line of) corporate interests every time they open their gums? This is a point I’ve never seen real journalists make, and I suspect it’s because they know themselves to be no different. They campaign with their every word, but somehow the FEC has constructed a fig leaf that has obscured that. It is as if politicians are a (well-compensated) Dalit class, and so even though our entire society is complicit in their activities, we may be kept pure of their corruption by practicing the appropriate rituals around election time.

    I guess I could take Colbert’s critique more seriously if he were e.g. a blogger or independent filmmaker, but as things stand, I know who signs his paycheck.

  13. BobN says:

    Stephen Colbert has done more to educate people about PACs than all the pundits in the country. I trust that by the end of the campaign season he will have done a better job at whatever his real goal is than you can imagine.

  14. Bonnie says:

    Timothy, I think you missed the entire point of Colbert’s stunt, which is targeted far more directly than you’ve inferred. What he’s doing is using his parodic character to force the FEC to remove that “fig leaf” as Jess called it, and in doing so, also forcing media conglomerates to get quite nervous about how what’s being said by their pundits correlates to what’s being written in their FEC filings.

    He’s presenting a legitimate request that, if the FEC wants to remain being perceived as a legitimate institution, requires a decision. Whichever way they rule, we, the audience, will either 1. learn that there are specific ways to exploit loopholes in campaign finance laws so that they effectively fail to matter in the least OR 2. learn that court jesters are perhaps the ones in the best position to initiate actual changes in the way media institutions are subject to provisions of campaign finance law.

    Either way, we win, because as Aaron Cohen said, it exposes the co-partisan institutionalization of political bribery. And it by informing us, it opens the door for the debate about campaign finance law to have far greater implications politically, which means greater implications in reality/actuality. His enemy is not conservatives or PACs in this case, it’s the entire foggy framework of bureaucracy that prevents individual citizens from making (and feeling like they make) a god*amn bit of difference in this republic. For many of us, this is our only way through the fog.

    We should cheer it.

  15. Jason says:

    ““Free speech for corporations” might sound insidious if the corporation in question is Exxon Mobil. But it’s harder to get worked up about the corrupting influence of “corporate speech” when we’re talking about the ACLU running television ads criticizing a candidate for supporting the Patriot Act.”

    Why do you take it for granted that people who have a problem with Exxon Mobil spending a ton of money on television ads are so hypocritical as to be supportive of it when an organization they otherwise agree with does the same thing?

    There are those of us who would like to see money and speech decoupled from each other a bit, so that having more of the former does not necessarily imply that you get to take away some of the latter from others. As long as your spending isn’t actively depriving others of their speech, spend as much as you want. As soon as it does (i.e. by bidding up the price of television or print ads, or saturating available outlets), then we have a problem, regardless of who’s doing it.

  16. SonnyB says:

    I believe that Colbert Fans are bright enough to sort out what to root for here, we aren’t confused. I can’t wait to see what he does. Since there is no real progressive party in the US, Colbert channels some of the frustration from progressives and liberals. Comedy can be powerful social satire. Sweeeet!

  17. laurano says:

    I couldn’t care less about the ACLU or any other group giving however much to whomever. I care very much if they do not disclose such. I am very frustrated by the number of people on the internet pontificating about free speech rights equaling flooding election campaigns and/ or flooding markets with ads for same when that is not the objection that people actually have. Confusing the issue for those who don’t trouble themselves to know the issues is usually a GOP/ conservative thing. Are you one? If Michael Moore OR the Koch brothers give something more to a candidate than I am allowed, through some made up PAC or dummy corp or even a real corp which is considered a person until it comes to income taxes, I WANT TO KNOW ABOUT IT. And in a democracy, I think I should. I hope Colbert gets his PAC because if the evildoers (LOL) can, why not the decent people? I can’t wait to see his ads. Better than South Park, maybe. Tit for tat but the conservatives will run crying if they have competition, they operate always in the way best suited to eliminate competition (college students have to jump through hoops they neither can nor will in order to vote, for instance). Underhanded super secret super PACs is their perfect bully club, seems the other side needs one to, non? Not that Colbert = Koch Bros + Exxon +BP + Pharma + Chamber Of Commerce, etc.
    BillB said, “Colbert seems to have two models. The first, as you note, is the setting himself up as a faux conservative with over-the-top conservative positions that we can love to have. But there’s a second shtick which involves him simply outright mocking absurd positions that are held by others in the world.”
    I think they are one and the same. Over-the-top conservative views (which are the only views I hear these days, excepting Andrew) ARE absurd positions. He mocks absurd, period.

  18. Brennan says:

    While not absolutely central to your point, there are some problems with your description of the Sierra Club and ACLU, which are heavily regulated in terms of their political speech. As 501(c)3′s with associated 501(c)4′s, they face a pretty broad number of restrictions. The 501(c)3 arm of these organizations can only spend about 15% of their resources on issue lobbying and no money on advocating for a particular candidate. The 501(c)4 arm is less restricted, but most donations go to the 501(c)3 arm because people like their tax deductions.

  19. Brennan, as I understand it McCain-Feingold imposed additional restrictions on 501(c)3′s beyond the restrictions these organizations voluntarily accept in terms of tax law. In particular, the definition of “electioneering communications” under McCain-Feingold is (according to Wikipedia) “a broadcast, cable, or satellite communication that mentioned a candidate within 60 days of a general election or thirty days of a primary.” So if the ACLU runs an issue ad about the Patriot Act that mentioned Senator Jones, that could constitute “electioneering communications” under McCain-Feingold, but not count as lobbying or candidate advocacy under tax law, right?

  20. Russ says:

    There’s nothing alarming or corrupt about them using the soapbox Fox News provides them to inform their viewers about this opportunity to participate in the political process…

    What alarms me is Fox selectively providing the soapbox, not that Palin or Huckabee take advantage of it. By extending the Citizens United logic then, we should not be dismayed when Fox invites say, Verizon, to espouse their views on net neutrality? That’s hard for me to swallow.

    Russ

  21. Max says:

    Your sequence of events leaves out the “super” PAC episode. A “super” PAC would be allowed to accept donations from Viacom, but Viacom lawyers still weren’t happy because they might have to make some extra financial disclosures.

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