The FEC and Late-Night Comedy

November 20, 2015
posted by Bob Bauer

FEC Chair Ravel is not the first former or present Commissioner to turn to Comedy Central to lampoon her own agency.  Trevor Potter, once also a Chair, came to run a major reform organization that collaborated on bits of high comedy with Stephen Colbert. He even would emerge for his performance in a shower of dollars from something called the Mazda Scandal Booth. But he was out of the agency then and Ms. Ravel is still running it, and she decided that she had had enough of the FEC’s dysfunction and would play it for laughs. One of her colleagues was not amused.

Chair Ravel defended her appearance as free speech and as the only way now, all else having failed, to make her point. The problem for the FEC in any resort to high comedy is that the audience may misunderstand the joke. It is not a far cry from laughing at the agency to laughing at the law and concluding that politicians will never make or enforce rules against their own interest. The same ridicule can and has been directed at reform proposals.

The quips at the FEC’s expense depend on clever bits of exaggeration and oversimplification that, in the best humor, expose some measure of truth. The tricky part is keeping the exaggeration under control so that it does not overwhelm the routine and strike a false note. Does the audience come away both entertained and better informed, or at risk of being misled?

The natural, easiest crack about the law is the gap between what it seems to promise and what it delivers, captured by the FEC’s acquiescence to, or active blessing of, “loopholes.” There will always be “loopholes”, if what is meant by that term that the limits and restrictions of the law can only as a constitutional or practical matter reach so far.  Crafting viable rules is not easy in this line of work, and from the beginning, the FEC has found itself under fire—and the butt of jokes—for the way it goes about this business. The polarization of the agency in recent years has made things worse, but the basic challenge has remained the same.

Consider the rule at the heart of the comic routine in the Ravel episode—the example given of the FEC’s “dysfunction.”  Carly for America, a Super PAC, ran into trouble with a rule that prohibits an unauthorized committee from using a candidate’s name. 11 C.F.R. § 102.14.  So “Carly” became an acronym, for Conservative Authentic Responsible Leadership for You, and the Super PAC had solved the problem.

This maneuver aside, there is the question of the “committee name” rule that gave rise to it.  It does not allow a committee supporting a candidate to use the candidate’s name—unless the committee clearly opposes the candidate, in which case the candidate’s name can be included the title of a critical “special project” the committee launches against her. So the rule permits the use of the candidate’s name on this condition: the mission must be to attack the candidate rather than to embrace her. Moreover, PACs that affirmatively support a particular candidate often prefer to avoid the use of the candidate’s name, choosing titles like “Citizens to Make the World Better”, because its favored candidate is not thereby associated with—that is, the candidate is less accountable for—the PAC’s communications.

The rule is structured as it is for all sorts of reasons, including controls against fraud and confusion.  On stepping back, however, it might appear inconsistent with reform objectives, the very ones that often motivate mockery of the law.  It privileges negative speech and works against candidate accountability. That, too, might seem pretty funny. And just last month, a federal court rejected a challenge to the “committee name” rule by a PAC that did not think the rule was a laughing matter.  Pursuing America’s Greatness v. Federal Election Commission, No. 15-cv-1217, WL 5675428 (D.D.C. Sept. 30, 2015).

And yet any pass at re-writing the rule will reveal that that it poses hard choices. It is not altogether easy to decide how and in what circumstances those organizing to influence an election are restricted in using a candidate’s name.

To be clear, and to be fair: Commissioner Ravel did not appear to choose the particular example; there is plenty to complain about in the design of the campaign finance law and ample grounds on which to question, on a number of issues, the FEC’s performance; and certainly no opinion is expressed here about the legal affairs of the Fiorina Super PAC.  Nor is there any doubt that The Daily Show, like the Colbert turns with Trevor Potter, can be exceedingly entertaining and score a useful point here and there.

Commissioner Ravel concluded, however, that as Chair of the agency, she could help inform the public about the agency’s failings, and perhaps help bring pressure to right the ship, by appearing in a Daily Show routine.  It is not clear that, as an official communication, this will work as intended. Certainly, the audience would not likely have come away with the impression registered by the judge presiding over the challenge to the “name” rule: “U.S. federal election law is complex.”  Id. at *2.

Leave a Reply