Is Comedy Central Breaking The Law? A Second View

From Rick Hasen:

A corporation cannot fund the express advocacy of a candidate for federal office out of its treasury funds. So General Motors could not run a newspaper ad saying "Vote for Colbert for President." The same rule applies to labor unions. The funding has to come from its political action committee.

But there's an exemption in the law for "any news story, commentary, or editorial distributed through the facilities of any broadcasting station, newspaper, magazine, or other periodical publication, unless such facilities are owned or controlled by any political party, political committee, or candidate."

Allison's main point is that Colbert does not control Viacom, Comedy Central, or even The Colbert Report. (I think we'd need to know a lot more about the Colbert Report's power structure before venturing a guess on the last point.) But I think she's elided over a prior question. The exemption only applies to a "news story, commentary, or editorial." It does not apply to everything Viacom does. So if Viacom took out a full page ad in the New York Post paid for with treasury funds saying "Vote for Colbert," that would be an illegal corporate expenditure regardless of the fact that Viacom could put on an express editorial saying the same thing on one of its television stations.

So the question could well turn on whether the shameless (and hilarious) promotion of the Colbert candidacy on the Colbert Report actually constitutes a bona fide news story (no way) or commentary or editorial (harder question). The fact that the show is a satire makes the interpretation question all the more difficult: does schtick count as commentary? I'm not so sure. But consider a case where Jay Leno does his comedy routine wearing a "Vote for Colbert" button. I don't think that would get the media exemption, and NBC could be in trouble. It is quite a fine line to draw.