Update: Not so fast! It appears we were too quick in raising doubts about Stephen Colbert's intentions to run for president. On his show Thursday night, the Comedy Central host announced he is exploring a presidential run in the Palmetto State and is relinquishing control of his super PAC to Jon Stewart, according to Politico. “I am proud to announce that I am forming an exploratory committee to lay the groundwork for my possible candidacy for president of the United States of America of South Carolina,” Colbert said.
Law experts we spoke with Thursday had noted the potential for election law violations if Colbert were to announce his bid for the presidency while controlling his super PAC—a reality Colbert's lawyer Trevor Potter spoke to tonight. “You cannot be a candidate and run a super PAC,” he said. “That would be coordinating with yourself." Handing over control of the super PAC to Stewart technically distances Colbert from the PAC. It's not the safest way to avoid legal troubles, election lawyer Brett Kappel explained earlier today, but it may be good enough for Colbert. "The best approach is to simply sever all ties," he said. "That way you can't be subjected to a complaint." At this point, Colbert still hasn't announced his candidacy but we'll be eagerly watching as South Carolina's Jan. 21 primary draws nearer.
Original post: Stephen Colbert has teased the possibility of announcing a run for president on Thursday, but there's a big reason he won't: campaign finance law would require him to shut down his beloved super PAC.
On Thursday, the Comedy Central host ignited a flurry of excitement behind tonight's show with the promise of a "major announcement," which hinted at a run for the presidency. "Colbert For President? Tune in Tonight" reads a New York Times headline. "Colbert mulls 2012 bid" reads Politico. A popular thread on message board site Reddit teamed with enthusiasm. "I was into Stephen Colbert being president before it was cool," a commenter said.
While anything is possible tonight, the smart money is on Colbert declining to enter the race because of the legal turmoil he would put himself through as the head of the super PAC Americans for a Better Tomorrow, Tomorrow, says Rick Hasen, professor of law and political science at the University of California Irvine's School of Law. "If Colbert declared himself a presidential candidate, he would no longer be able to run a super PAC and be intimately involved with it," he tells The Atlantic Wire. "Super PACs have to be completely independent of a candidate and the penalties would be very serious."
Hasen isn't kidding. Brett Kappel, counsel at the Washington, D.C. law and lobbying firm Arent Fox, put the potential legal costs in stark terms for us. Let's say, hypothetically, Colbert announces he will run and maintains his leadership of Colbert Super PAC. In that scenario, he would be subject to coordination complaints filed to the Federal Election Commission, which can result in excessive costs. "If someone files a complaint, the investigation takes a minimum of a year and requires all sorts of expenditures," Kappel told us. "They are extremely expensive cases to defend against and can be intensely time-consuming." Kappel, who has worked on cases taken to the FEC, said defending against such complaints can cost hundreds of thousands of dollars. (Those legal fees dwarf the actual cost of the penalty for coordinating with a super PAC: the minimum fine is $7,500.)
Of course, if Colbert was really committed to running, his lawyers at Caplin & Drysdale would tell him to dissolve the super PAC. "I'm sure Trevor Potter, who is an excellent lawyer, would say 'Stephen, I advise you to sever ties with the super PAC," said Kappel.
Colbert's political activity this year -- forming a super PAC, running ads in Iowa, testifying before Congress -- has primarily been about illustrating the boring but important issue of how corporations have been given near unlimited ability to influence elections. Forming a super PAC in the first place required the FEC to rule on the question of whether by airing The Colbert Report, Viacom was in effect making a contribution to his super PAC with airtime.
So, we wouldn't totally rule out another announcement by Colbert to send up the legal fiction that super PACs are "uncoordinated" from the candidates they support -- but his lawyers are probably checking it out thoroughly first.
And so will every other attorney who works in campaign finance. "Are you kidding? Every election lawyer in the country is watching Colbert," said Kappel. Hasen, for his part, predicts Colbert will make a surprise endorsement for former Louisiana Governor Buddy Roemer. "He keeps bringing on Roemer to talk about his views on campaign finance reform," said the professor. "I think he's going to announce his support for Buddy."