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Bill Maher’s Plan to Oust a Member of Congress May Face Election Law Limits

Bill Maher may be embarking on an effort to find a member of Congress to oust from office this year, but he’ll have to be mindful of how he does it.

While campaign finance laws give him great leeway in what he says and does on HBO “Real Time With Bill Maher,” the situation gets murkier if he decides to visit a congressional district, as he indicated to the New York Times on Friday.

“This year, we are going to be entering into the exciting world of outright meddling with the political process,” Maher told the Times. The plan is for the show to ask viewers to put forth their individual representatives as the worst in the country, and for the show to use its power of ridicule and humor to make the case for throwing that elected official out.

There is a precedent for such “meddling”: Stephen Colbert, who created a SuperPAC for the 2012 cycle, ran humorous ads and made light of the state of money in politics. But he first sought an opinion from the Federal Election Commission, which said that while production of segments for Comedy Central’s “The Colbert Report” fell under a press exemption, other activities, like the creation of ad spots, did not. It didn’t mean that Colbert couldn’t create the ad spots, just that any Viacom expenditure had to be disclosed.

Trevor Potter, the Caplin & Drysdale election law attorney who represented Colbert, said that “as long as (Maher) is talking about candidates on the show, it will all be subject to the press exemption. There will be no restrictions on what he can say on his show.”

“What he has got to be careful of, and has to think through, is if he gets active in a campaign in ways that are different from what he would do as a member of the press with his regular television show,” says Potter, a former chairman of the FEC and president and general counsel at the Campaign Legal Center.

So if he travels to a congressional district, Potter says, the question will be, “Is whatever he is proposing to do in these districts consistent with what the show has normally done?”

If it is not, there also would be an issue of whether Maher coordinates his electioneering with the incumbent’s opponent, Potter said.

Bob Biersack of the Center for Responsive Politics agrees. “If he goes beyond his own program…and pays for ads on other media that would be another question, and those might be considered independent expenditures which would be reportable.”

For instance, a standup act or on-location comedy segment may fall right in line with what Maher does on the show, but if those events were connected to an election rally or an advertising campaign, they could trigger requirements that those expenses be disclosed as in-kind contributions.

Maher already exerted his influence on a campaign, contributing $1 million to the Priorities USA SuperPAC that was devoted to reelecting President Obama in 2012. This time, however, would be different, because the resources of his show will be used to spotlight the lesser members of Congress.

The Supreme Court’s Citizens United decision in 2010 eased restrictions on corporate independent expenditures for or against political candidates, and Colbert’s SuperPAC seems to have eased worries among media companies over how their personalities engage in the electoral process.

“As a general rule, in the past media companies have been very careful in terms of how they would treat” such campaigns, says Meredith McGehee, policy director for the Campaign Legal Center. “What is interesting now is they are not as cautious now as they used to be.”

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