TV satirist Stephen Colbert told his audience on Oct. 16 that he would “seek the office of the president of the United States.” Over the next few days, he signed papers to get on both the Democratic and Republican primary ballots in South Carolina, and he unveiled a campaign Web site. If the Comedy Central host follows through with his bid and continues to use his show for political self-promotion, does he risk violating election law?
Yes. The Federal Election Commission prohibits corporations from making “any contribution or expenditure in connection with a federal election.” A “contribution” includes “anything of value,” including airtime. Thus each time Colbert promotes his candidacy on The Colbert Report, he’ll be accepting an illegal “in kind” contribution from Comedy Central’s parent company, Viacom. The FEC does exempt news programs (including satires like the Report) from the “in kind” airtime ban, but not if a political party, political committee, or candidate (like Colbert) controls the show’s content.
Viacom might also run afoul of the Federal Communication Commission’s equal time rule. By law, radio and television stations must treat political candidates equally when it comes to selling or giving away airtime. There’s some debate as to whether this provision applies to all television networks, or just broadcast television. Nevertheless, cable channels generally abide by the equal-opportunity guideline to avoid a precedent-setting legal case. Each of the 16 presidential hopefuls could therefore demand as much time on Comedy Central as Colbert gets—about 20 minutes a night, four days a week. Faced with a similar situation earlier this year, NBC decided to stop airing Law & Order reruns featuring Fred Thompson. The cable network TNT, on the other hand, is risking the FCC’s ire by keeping its Thompson-heavy rerun schedule intact.
Chances are the government won’t commence legal proceedings unless someone files an official complaint. But if the FEC does get involved, Colbert’s campaign and Viacom could face stiff financial penalties. His only safe option, therefore, is to spoil the joke by dropping out before someone complains. Back in 1994, radio host Howard Stern made a bid for the governorship of New York and discussed his agenda on-air. When it came time to disclose his finances, he rescinded his candidacy, thus avoiding legal complications.
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Explainer thanks Bob Bauer of Perkins Coie LLP and Rick Hasen of Loyola law school. Thanks also to readers Nihal Patel and Dan Smith for asking the question.