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How I Became Stephen Colbert's Lawyer -- And Joined the Fight to Rescue Our Democracy from Citizens United

The Supreme Court's campaign finance legacy has undermined the "whole purpose of the Constitution," to have a "functioning, representative" government.
 
 
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(Editor's note: This is the transcript of a May 23, 2012 speech at the Annual Meeting of the American Law Institute.) 

I am often asked how, after 25 years as an election lawyer, service as an FEC Commissioner, and General Counsel to 2 presidential campaigns, did you end up as Stephen Colbert’s lawyer on late night TV.  The answer is “I was lucky…”

It just goes to show—90% of life is “just showing up”—and returning phone calls.

I was at my desk one day last spring and the Colbert staff called—“What is a PAC.  Would you be willing to explain it on the Show?”  And I’ve been doing it ever since…with the forbearance of my law partners at Caplin & Drysdale, although as one of them put it to me,  “For the first time in 30 years, my kids care what I do, because I work with Stephen Colbert’s lawyer!”

Stephen Colbert does have a knack for taking very complicated legal subjects and hours of staff discussions and research and distilling it into 4 ½ minutes of Q&A that captures the essence of the issue, and explains it in layman’s language in a humorous, captivating way.  What every Supreme Court advocate wishes for!

On one Show a shell corporation we had registered with the State of Delaware as “Delaware Shell Corporation” was turned into the Stephen Colbert 501(c)(4) with a pro forma 15 second board meeting in front of the studio audience. Afterwards, I had a call from a law professor at a prominent West Coast law school who said she wanted to thank me. “I have been trying to find ways to explain the role of incorporator to my students—now I can just show them the Colbert Report.”

But it is NOT the role of the incorporator that causes millions of idealistic younger Americans— and seen-it-all older ones—to watch the Colbert Report’s coverage of campaign finance in this Presidential election year.  Nor is it the riveting discussion of IRS filing procedures for Section 501(c)(4) organizations that won the Show a Peabody Award.

The Colbert Report coverage is so successful because it accurately describes a campaign finance world that seems too surreal to be true.  A system that claims to require disclosure of money spent to elect or defeat candidates, but in fact provides so many ways around that requirement as to make disclosure optional; a system that says that “independent expenditures” cannot be limited as a matter of Constitutional law because they cannot corrupt because they are “totally independent” of candidates and parties—when the daily news reports about these supposedly “independent” groups show that candidates raise money for them, candidates’ former employees run them, and candidates’ polling and advertising vendors advise them.  And the major donors to these “independent” groups are often also official fundraisers for the candidate.  Other major donors have private meetings with the candidates, or travel with them on campaign trips!

Some of the other realities of modern campaign finance are just as bad.  This year, for the first time since 1972, we have a Presidential election with no candidates financed by public funds in either the primary or the general elections.  Instead of receiving grants from the U.S. Treasury to campaign, we see a race by both sides to raise a billion dollars each from private donors.  They won’t make it, by the way, because so much of the money instead will be going into the SuperPACs and 501(c)(4)s and (c)(6)s allied with the parties and the candidates.

Those groups will raise and spend hundreds of millions of dollars, not just in the presidential race but in House and Senate races which present “opportunities” for the interests funding them…opportunities to change control of Congress by knocking off unsuspecting incumbents with last minute expenditures of large sums of money, often paid for by undisclosed sources.