Trevor Potter was a guest on the first episode of CLC’s new podcast, Democracy Decoded, which debuted on March 17. Democracy Decoded is a podcast where we examine our government and discuss innovative ideas that could lead to a stronger, more transparent, accountable and inclusive democracy. You can subscribe to the podcast here.
Of all the things I have done in my career as an election law attorney, the one I might be best known for is being comedian Stephen Colbert’s personal lawyer on his Comedy Central show, “The Colbert Report.” This was largely due to Stephen’s genius ability to use comedy and irony to explain how spending by special interests in our elections, including secret spending, undermines the right of everyday Americans to make their voices heard, thus posing an existential threat to our democracy.
The whole experience of being on “The Colbert Report” was enormous fun, but the way it started was somewhat of a fluke. I got a phone call from someone who worked on the show saying, “You may not remember me, but we've met before. We have some questions about federal election law. Would you be willing to talk to the producer?”
The producer and I proceeded to have a longer conversation. They kept asking questions about political action committees — often referred to as PACs for short — and what the laws governing them were. Finally, I said, “Why are you so interested in this?”
The producer launched into a tale about an incident that had happened a few days earlier. Stephen had created a mock political commercial on “The Colbert Report” to spoof an actual TV ad by Scott Walker, the former governor of Wisconsin who was rumored to be running for president. At the end, the mock ad said, “Paid for Colbert PAC,” because all political ads are required to tell the viewer who paid for them. The next day the general counsel for Comedy Central Network had called and said, “That business about Colbert PAC on your show last night was funny, but you need to understand you can't actually have a PAC.”
After Stephen hung up, he turned to his staff and said, “What was that all about? Why can’t I? What is a PAC? Find me someone who knows about PACs!”
His staff started making calls, a friend of mine at a major law firm recommended they reach out to me.
After getting this background from the producer, I had a shorter call with Stephen himself. He had lots of questions about how PACs work, who could give, how they are financed, what was disclosed and why was it that Comedy Central told him that he couldn’t have a PAC. I explained all that to him, and he replied, “Would you be willing to say all that again — on air?”
I agreed. I had watched “The Colbert Report” only a few times, but I was familiar enough to know that there were generally two kinds of guests that he invited on the show: the ones he wanted to make fun of and the ones he wanted to explain something. I wanted to ensure that I was in the latter category. The staffer at the show helping me prepare for my first appearance told me not to worry and assured me that Stephen would ask good questions.
As I was about to walk through the curtain and onto the stage, the staffer gave me a piece of advice that I kept in mind from then on. She leaned over and whispered in my ear, “Just remember, he’s the funny one.” I remembered that advice through the next 10 or so times I appeared on “The Colbert Report,” sometimes feeling sorry for guests who attempted to beat Stephen at his own game. You can’t beat the house, as they say about Las Vegas!
My first appearance occurred about a year after the notorious Supreme Court decision Citizens United v. Federal Election Commission (FEC), which has enabled corporations and other entities— like super PACs — to engage in unlimited amounts of campaign spending.
Having me on the show as Stephen created first a PAC, then a “super PAC”, then a dark money 501(c)(4) and then a mock presidential campaign, was a good way for him to explain the effects of that decision and how America’s campaign finance system makes it very easy for special interests to dump vast amounts of money into our elections and very difficult for voters to know about the true sources of that spending. I appeared several times after that, and I was later told that I was Stephen’s favorite straight man.
In 2011, the portion of “The Colbert Report” I was on won a Peabody Award for excellence in reporting. A few years later, a study from University of Pennsylvania’s Annenberg Public Policy Center found that people who watched the show understood money in politics and the role of super PACs much better than people who watched the evening news or read major national newspapers. I believe this largely has to do with Stephen himself, who is not just a great comedian but also a brilliant thinker. He was able to tackle the complexities of campaign finance law and make it digestible for the American public in a way that I don’t think anyone else could have.
Unfortunately, many of the issues we identified over 10 years ago still plague our campaign finance system, and in many cases, have continued to get worse. Corporate money is spent freely, illegal coordination occurs frequently and the threat of foreign money infiltrating our elections is all too real. Meanwhile, with each election cycle, it seems like a new record for campaign spending is set. In the 2020 elections, $14.4 billion was spent, with over $1 billion of secret spending coming from dark money groups.
Voters have a right to know which special interests are spending large sums of money to try to influence their vote. For many, “The Colbert Report” was the first place where they learned that this right was under attack and why that mattered.
Change often takes time, but I think that the issues Stephen brought to light on his old show have motivated people from all ends of the political spectrum to fight for a democracy that works in their interests and is accountable to and inclusive of all Americans.