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Steve Simpson, Paul Sherman: As Stephen Colbert learned, speech isn't free

By Steve Simpson and Paul Sherman

Published: Sunday, May 22 2011 12:00 a.m. MDT

This article originally appeared in The Wall Street Journal.

Comedy Central funnyman Stephen Colbert, like most of his friends and allies on the left, thinks that last year's Supreme Court ruling in Citizens United v. FEC is, literally, ridiculous. To make his case that the ruling invites "unlimited corporate money" to dominate politics, Colbert decided to set up a political action committee (PAC) of his own. So far, though, the joke's been on him.

The hilarity began last month, when Colbert began to have difficulty setting up his PAC, which is a group that can raise money to run political ads or make contributions to candidates. So he called in Trevor Potter, a former Federal Elections Commission (FEC) chairman who is now a high-powered Washington lawyer.

Potter delivered some unfunny news: Colbert couldn't set up his PAC because his show airs on Comedy Central, which is owned by Viacom, and corporations like Viacom cannot make contributions to PACs that give money to candidates. As Potter pointed out, Colbert's on-air discussions of the candidates he supports might count as an illegal "in-kind" contribution from Viacom to Colbert's PAC.

All was not lost, however. As Potter explained, the comedian might still be able to set up a "Super PAC," a group that can raise unlimited sums of money as long as it spends it only on independent ads, without donating at all to candidates. Super PACs exist because of another case that proponents of campaign-finance law despise, SpeechNow.org v. FEC.

Or so it seemed. On May 11, Potter returned with more bad news: Viacom didn't like Colbert's plan because his on-air commentary might still amount to a contribution from Viacom to his Super PAC. Isn't campaign-finance law funny?

"Why does it get so complicated to do this? I mean, this is page after page of legalese," Colbert lamented.

Campaign-finance laws are so complicated that few can navigate them successfully and speak during elections — which is what the First Amendment is supposed to protect. As the Supreme Court noted in Citizens United, federal laws have created "71 distinct entities" that "are subject to different rules for 33 different types of political speech." The FEC has adopted 568 pages of regulations and thousands of pages of explanations and opinions on what the laws mean. "Legalese" doesn't begin to describe this mess.

So what is someone who wants to speak during elections to do? If you're Colbert, the answer is to instruct high-priced attorneys to plead your case with the FEC: Last Friday, he filed a formal request for a "media exemption" that would allow him to publicize his Super PAC on air without creating legal headaches for Viacom.

How's that for a punch line? Rich and successful television personality needs powerful corporate lawyers to convince the FEC to allow him to continue making fun of the Supreme Court. Hilarious.

Of course, there's nothing new about the argument Colbert's lawyers are making to the FEC. Media companies' exemption from campaign-finance laws has existed for decades. That was part of the Supreme Court's point in Citizens United: Media corporations are allowed to spend lots of money on campaign speech, so why not other corporations?

Whether Colbert understands that he has made the Supreme Court's point is anyone's guess. But there's nothing funny about what he has had to go through to set up a PAC, because real people who want to speak out during elections face these confounding laws all the time. And as his attempt at humor ironically demonstrates, the laws remain byzantine and often impossible to navigate, even after Citizens United.

There's a joke in here somewhere, but it isn't on the Supreme Court.

Messrs. Simpson and Sherman are attorneys at the Institute for Justice, which represented the plaintiffs in SpeechNow.org v. FEC.

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