As the faux-conservative Colbert Report host, Stephen Colbert has lampooned campaign finance laws and the U.S. electoral system by starting his own super PAC and announcing bids for the presidency and “the president of the United States of South Carolina.” But another Colbert—this one with a hard t at the end—is also vying for the political spotlight: Elizabeth Colbert Busch, Stephen’s older sister, who’s facing off against avid Appalachian Trail hiker and former South Carolina Gov. Mark Sanford in a May 7 special election for South Carolina’s 1st Congressional District. Colbert has twice devoted show segments to his sister’s campaign, including one endorsing her candidacy, and has mocked Sanford on countless occasions. With the show’s nightly viewership of 1.5 million and the documented “Colbert bump” in a politician’s support after an appearance, is Colbert violating election laws by blending his hosting role with his sister’s campaign?
Probably not. The central law in play is the Federal Communications Commission’s equal-time rule. Beginning with the Radio Act of 1927, which Congress enacted in response to fears of broadcasters’ ability to sway elections by limiting a candidate’s access to the airwaves, radio and television networks have been required to offer equal airtime (or opportunities to purchase advertising at a reduced price) to all candidates if they request it. Exemptions were later added for documentaries, newscasts, news interviews, and on-the-spot news events.
Since it covers news stories and political issues, The Colbert Report would likely fall under the newscast or news interviews exceptions. This exemption would permit Colbert to interview his sister on his show without giving Sanford equal time. However, Sanford would have seven days after Colbert Busch’s first appearance to file an equal-time request; if turned down, Sanford could file a complaint to the FCC.
Mentions or endorsements of Colbert Busch’s campaign or jokes at Sanford’s expense would not be considered in-kind campaign gifts. Though the Federal Election Commission has previously tried to argue these mentions could count as campaign contributions, free-speech issues and FCC rulings have trumped any attempts by the FEC to regulate this speech. Viacom, the parent company of The Colbert Report, may exercise more caution in this case—or at least do extra vetting with its lawyers. Since corporations are barred from making campaign contributions to federal candidates, Colbert could potentially raise legal issues for Viacom if he’s coordinating his message with his sister’s campaign, though again Colbert’s endorsements or mentions likely are covered by the newscast exception to the equal-time rule.
Outside his show, Colbert has hosted several fundraisers for his sister, including two $500-to-$10,000-per-ticket events in Washington, D.C., and New York. These donations would be filed to the FEC with names and amounts listed and would go toward Colbert Busch’s campaign. This contrasts with the campaign finance laws Colbert mocked through his now-defunct Americans for a Better Tomorrow, Tomorrow super PAC, which allowed him to collect unlimited donations from his fans before he shut down the super PAC in December and split the remaining funds among several charities. If Colbert decided to revive his super PAC for his sister’s campaign, he should not also fundraise directly for his sister’s campaign, since super PACs are barred from coordinating with candidates.
Colbert Busch is currently favored by likely voters 50 percent to Sanford’s 41 percent, according to Public Policy Polling. Her campaign may be getting a boost from the Colbert bump (and from Sanford’s stumbles), but Colbert is in the clear to keep preaching his brand of truthiness for his sister’s campaign. And the rest of us are eager for a sibling showdown on The Colbert Report’s “Better Know a District.”
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Explainer thanks Richard Hasen, a professor at University of California–Irvine School of Law and author of the Election Law Blog, and Jack Goodman, a broadcast attorney and former general counsel at the National Association of Broadcasters in Washington, D.C.