I am Trevor Potter, Stephen Colbert’s personal lawyer for the Colbert Super PAC, former Chairman of the Federal Election Commission (FEC), member of #waywire, Inc. Advisory Committee -- AMA

Nice work on the Colbert Report. Your segments with Stephen were some of the best of the election season. I don't have a question - just wanted to say thanks.

I appreciate that. It is all his credit--he thinks through the issues and chooses to discuss them--but I have been very privileged to be part of it....

Thank you for turning an incredibly complex topic like campaign financing and its effects into something more easily understandable.

How did this system arise in the first place with the emphasis this country has on governmental checks and balances?

The answer is there IS no "system" in the sense that no one designed what we have. Congress passed McCain-Feingold, which was supposed to revise the campaign finance system, but the Supreme Court has since made swiss cheese of parts of that law--and the tax laws enforced (or not enforced) by the IRS were written in pieces over many years, with no reference to how they relate to campaign finance laws. Then the FEC has written regulations changing/interpreting major portions of the laws passed by Congress, in ways that cut even further holes in the "system." So--no intelligent design here--just chaos...

Big fan of your segments on colbert,

What was your initial reaction when Colbert told you he wanted to start a Super PAC?

First he called and asked about 30 minutes of technical questions about Pacs--who can have one, how they work, etc. Then he asked if I'd be "willing to say all of that on air"...so I went on the show to answer his questions and explain Pacs. Only after that did he tell me that he really wanted one, and asked if I could help--and by then I was impressed enough with him to say "sure"....every lawyer likes a new and interesting client--it makes going to the office much more fun!

What is the plan with the money that was pulled from the Super Pac to the 501(c)4?

I understand him going through the process of "keeping it" to show the holes in the system. But I find it hard to believe he would actually do that when all was said and done.

That is a question for Mr. Colbert--his lawyer is obligated by the attorney-client privilege not to reveal client secrets! I have great faith in Stephen Colbert, and am confident the money will be well-used--but the point being made is that under current laws it is possible to have it all disapear from public view--which it just has.

Seeing how this point has been made crystal clear. Have we seen the end of that segment, and in turn, your role as his lawyer (for the time being)?

That is up to the client, i'm afraid....we'll have to wait and see...

Mr. Potter do you think that bipartisan support (ex. McCain-Feingold) is needed for comprehensive campaign finance reform to be enacted? If so, who are some key figures from either party you think could lead the way on said legislation?

Great question. You are right--bipartisan support is absolutely essential for reform of money in politics. Partly this is a legislative reality--nothing will get through the House without some Republican support. McCain -Feingold required a discharge petition in the House (forcing it to a floor vote over the objections of the House leadership) . Reform needs 60 votes in the Senate to beat a fillibuster. But beyond that, I think both parties need to be invested in any new laws and believe they are fair--or they will fight them and look for ways to sabatoge them...

Being a bipartisan bill didn't stop the Supreme Court from tearing it apart under Citizens United.

True. But they are more divided by philosophy/ideology than by partisanship. So far as we know, Justice Stevens, in dissent, was a Republican. The problem with the Court is that 5 Justices are SURE they know more than Congress on this subject--so they do not defer the way they normally would to Congressional findings and expertise....

There's been a lot of talk lately about removing the electoral system for national elections. I've been thinking that the electoral system almost keeps campaign costs down. There's only so much you can flood certain media markets (or neighboring media markets).

However, because of the current political landscape, some of the biggest media markets (NYC, LA, Dallas) are out of the political scope. If those markets are in play for a general election, wouldn't the threshold to pay for those ads skyrocket campaign costs?

cool question! And very good point--making every state "competitive" in a national vote system would likely result in higher campaign costs--especially if candidates insist on expensive tv ads as the primary way to reach voters. Even if campaigns shift to direct voter contact and more social media, though, the reality is hat making every single county a "battleground" will logically increase the amount spent of elections. That may not be terrible, though--if there is some other way to fund them than our current system!

What actually defines collaboration between Super Pacs and candidates? Seems like it would be easy to find a loophole.

Incredibly easy! For illustrations, see the Daily Show episode with Stewart and Colbert not coordinating. Also see candidates holding private meetings with the principal funders of supposedly independent SuperPacs...

First off, I am a big supporter of the American Anti-Corruption Act (http://represent.us) that you and many others have proposed. My support follows from reading various literature and many studies on the topic of campaign finance and lobbying (e.g. Lawrence Lessig's "Republic, Lost", a book I think every American should read or listen to), as well as following the data documented/organized by opensecrets.org and opencongress.org. When I look at all of the problems we face today, the evidence seems to state that the majority of them are rooted in this problem of elected officials' dependency on the financial support of large, consolidated interests that are out of sync with the public interest. The solutions presented in the AACA seem to reflect its framers' knowledge of and experience with the problem--I especially like the idea of the per-citizen $100 Tax Rebate system of public funding.

With this context established, on to my question: Are there any plans for advocates of the AACA to try to gain exposure for it through the major television shows that often cover similar issues? A lot has been said about the corrupting effect of money in politics on, for example, Moyers & Company, The Colbert Report, and The Daily Show, but now it seems that the public is finally becoming aware of the issue (probably due to the salience of the Citizens United fiasco) and its frustration with it is being channeled into specific, hard-hitting legislation and action plans. In the case of the AACA, after only a couple of weeks we already have ~300,000 signatures, but I would think that the so called "Colbert Bump" alone could at least double that. Even if when presented to congress the AACA does not fair well (I expect the push-back to be massive), I believe of equal importance will be the large movement behind that is distinguished from others by its focus on specific legislation and timelines, and for this to have significance we would need as many co-sponsors (signatures) as possible.

I love Lessig's book--should be read by everyone TWICE because it is both dense and incredibly insightful. The American Anti-Corruption Act is the next step. I was honored to be asked to help draft/vet it as a lawyer, because I think it illustrates how the whole current system could be revolutionized WITHOUT Supreme Court changes or a constitutional amendment. It takes citizen pressure and political will, but that is a great place to start. I had not heard about 300,000 signatures--impressive for two weeks or so--but it needs to go viral from here...

Bill Moyers did ask me a little about it the day it was introduced. I agree the issue needs to rise to national coverage. However, the way to get there is through web communities like Reddit, and social platforms like #waywire, a video social network I recently did an interview with. In many ways, these internet communities are the wave of current and future activism.

Is Stephan Colbert really funny? Or do his writers 'put makeup in that pig'

Stephen Colbert is truly the wittiest person I have ever met--and one of the very brightest. No kidding. He runs the show, directs the cameras, edits his scripts, tells the writings how a joke should work...it's all him.

Just want to remind everyone that you can find out more information about the American Anti-Corruption Act and sign the petition at http://anticorruptionact.org/

Thanks! I can't answer all that in the time left--but let me start. Go read the Washington Post op ed I did in the Outlook section ten days ago--on Nov. 18th. It talks a lot about the FEC and regulatory capture...

Thanks for your time, Mr. Potter -- Were you surprised at the disappointing impact that Super PACs had on the 2012 election?

Thanks for your question -- you can watch my video response at this link

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:) Gosh--makes my day!

Hi Trevor Potter! Since you contributed to McCain's campaign, do you feel conflicted helping a character who mocks Republicans? What is it like to work with Stephen? How far in advanced does the Report let you know they need you for a segment? Thanks for this AMA!

Who mocks Republicans? Stephen Colbert?? Surely not--It seems to me he just uses irony to have us look at a whole range of issues with new eyes...both GOP and Dems benefit from that

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First, citizens (voters) have to care about this issue, and demand their elected representatives do something. If voters don't care, members of congress will not! So the good news is that a recent Gallup poll showed that about 80% of Americans rate "corruption in Washington" as the second greatest problem facing the country--amazingly high. Now those 80% need to start telling their representatives to get off the stick!

Whats is the worst act of corruption that you have seen?

Intriguing question -- I recorded my video response you can watch at this link

Stay tuned for my video response to this question!

Mr. Potter,

Thanks for doing this AMA.

Can we really expect anything to change regarding Super PAC laws? Wouldn't change require reform coming from the very people who have benefited from their Super PACs? Do you think campaign finance laws will get progressively better, worse, or stay the same?

Thanks for your questions -- check out my video response at this link

I hear a lot about how people shouldn't have "undue influence" over politicians, but what does that really mean? Who decides if the influence a person or corporation has is due or undue? It seems like letting politicians make that decision is fraught with peril.

Well, we are a representative democracy, so the first people who should have influence are constituents. And the first plae Members of Congress should look to for guidance is the citizenry. "Undue" influence could be summed up as influence exercised in a back room , in tacit exchange for financial support, which results in policy choices voters are not aware of (like tax subsidies, loopholes, etc)

You've been a vocal critic of Citizens United v. FEC, but before Citizens United was decided, 26 states already allowed unlimited corporate and unions spending. What evidence do you have that those 26 states were more corrupt or less well-governed than the other 24?

Fair point. One answer is that the scale of potential corruption is so much greater at the federal level--because that's where 90% of the money/government spending/tax breaks/subsidies are. Corprations simply care less about much state-level activity, because the real financial controls/rules are in DC at the federal level.

Most obvious question: What's it like to be near the magical essence that is Stephen Colbert?

He is a blast--he exudes energy and intensity.

Do you think the First Amendment (as you interpret it) imposes any limits on the ability of government to restrict political contributions or expenditures? If so, what law would go too far for you? Do you think it would be constitutional for the government to ban independent expenditures by individuals? What about books paid for by corporations or unions?

We know that "speech" is protected bythe First Amendment. The questions arise when the activity goes beyond personal speech to something more. The Supreme Court has said, forinstance, for many years that when a campaign contribution is given to a candidate, there is an element of speech--the symbolism of saying "I support this person" but that the AMOUNT given can be limited because that is not all speech by the donor--it will be used for speech by someone else (the candidates) and larger amounts lead to the potential for corruption. The same issues apply to contributions to SuperPacs if they are "close" to those candidates.

How do I go about hiring you to setup my super PAC?

Well, first you will need someone to fund it... but if you have financing lined up, my DC law firm is always open for business...:) Caplin & Drysdale

When you helped Stephen transmit money from Colbert PAC to Colbert Pac SHHH to a third unnamed organization, you stated that the IRS, or pretty much anyone else, can never discover where the money went. How is this not eminently useful for money laundering, and how is it not illegal? Is it not concealing the source, and distribution of, funds? Do you think there are any broader implications for national security beyond simple campaign financing?

No one said it wasn't "money laundering"in the sense that money goes into an entity and disappears--it's just that the IRS forms do not require disclosure under these circumstances.... In reality, if there was any suspicion of criminal activity--terrorist or drug money--then government agencies could get subpoenas and go look at the bank accounts and see where the money actually went--it just wouldn't be on the IRS tax form...

How do you feel about the super PACs created by Michael Bloomberg and Olympia Snowe? Is there a difference between those and ones created by, say, Karl Rove?

These vehicles will be used by people on all sides of politics. So long as they exist, that is to the good--so long as they are "completely independent" of candidates and parties (which the Court said they must be). Many of the Pacs this year did not meet this test. Additionally, the Court in Citizens United said that all money spent in federal elections should be disclosed (that did not happen this year) and "corporate democracy" should give shareholders a say in what money their corporations spend in politics (that did not happen ths year either!).

Are there any Supreme Court cases you think have been wrongly decided?

Do you think that the expenditure limits that were invalidated under Buckley v. Vallejo could be brought back and imposed on PACs?

The Court itself has recognized that some cases were wrongly decided and have reversed them--civl rights cases, for instance, as society has changed and discrimination is no longer something the gov't can endorse. The question is whether the majority in Citizens was right in thinking McConnell was one of those cases. in fact, I think McConnell was more consistent with the mainstream of the Court's jurisprudence that Citizens.

What are your thoughts regarding the arguments made by former Chair of the Federal Elections Commission, Brad Smith?

Former Chairman Smith has supported the Citizens United ruling. He has argued that the effects of the ruling on elections are minimal because Citizens United-related spending accounted for only 10% of the overall campaign spending in 2010. Furthermore, he has suggested here that the only problem with the ruling is the lack of transparency with donations.

Thank you for your question - click here for my video response

Is it possible for someone to use a Super PAC to avoid taxes entirely?

It depends how the money is used. If converted to personal use by an individual, and it is taxable personal income. If it goes to a charity or a social welfare purpose, it is exempt from tax under the tax laws...

Besides a constitutional amendment, is there any other way to severly limit or defeat Citizens United? I've heard talks of a possible revisit of the decision by the Supreme Court, but that would seem like it would take many years for that to happen. If this were to happen would it be unprecedented for the Supreme Court to take a second look at a decision from just a few years ago?

take a look at the American Anti-Corruption Act...no need for an amendment to make those huge changes!

What is your role in Waywire? And how far do you see it going, as far as influencing social and political attitudes/inclinations?

Thank you for the AMA.

I'm on the Advisory Board. I see an opportunity to expand the conversation on issues like campaign finance and other major issues through sites like #waywire

Mr. Potter, this is a somewhat wonky question, but why does the FEC not require non-committee organizations filing 24/48hr reports to declare the legal classification of their incorporation. By that, I mean, when a group that has a cmteid starting with C3, C7, or C9 files a report, couldn't there be a set of check boxes that say 501(c)(4), 501(c)(6), 527, for-profit corporation, etc. and they check one. It would only take a second for the filers, and it would create at least some clarity in a system where the same organization often has its own 501(c)(4), 501(c)(5), super PAC and 527 at the same address, run by the same people. The super PAC is easy enough to tell by its cmteID, but sometimes the others can be maddening.

For 501(c)s in particular, this would be helpful because it would notify the public that a new 501(c) has been formed, even though the IRS hasn't yet granted exempt status, which can take years (Crossroads GPS still doesn't have exempt status).

More generally, what information do you think the FEC could ask of 501(c) organizations, given that the IRS isn't set up to deal with nonprofit transparency in a timely manner. For example, even if the FEC can't require donors to be disclosed, could it at least require that the group filing the 24hr report include its total expenditures to date for that cycle? That way, at least there would be some accountability in terms of the "primary" purpose rule for social welfare groups.

I realize the FEC is deadlocked, but in a perfect world, what information could/would the FEC require of non-disclosing groups filing expenditure reports?

Bonus question: It's never been clear to me why 501(c)s have been liberated by Citizen United. I understand the part about corporate donations, but if they're still not disclosing the sources of the funding --despite the fact that the Supreme Court almost unanimously upheld the imperative for disclosure in political spending -- then shouldn't they be banned from spending? Why does the second part of the Citizens United decision not seem to hold the weight of the better known part of the decision?

SOMEWHAT wonkish?? :) OK--let me try. The FEC could probably require more disclose of reporting entities (if the Commissioners weren't deadlocked on almost everything). It might take legislative action to get to the type of disclosure you want in its entirety--and if we could get that maybe we could get the Disclose Act as well!

As to the lack of disclosure by 501 c groups, the problem is that the tax code does not require they disclose their donors in tax filings--and the FEC gutted the disclosure requirements in the campaign finance laws (McCain-Feingold). The court apparently did not know the gutting had occurred...

Does our generation stand a chance at fixing the broken system and broke government we are facing? David Brooks said we are "screwed" to #waywire-- do you agree?

It will take work! It is always harder to change things than to fight to have nothing happen...

What is your opinion on Super PACs? Also do you think they "win" the elections?

The CAN...the first thing anyone needs in an election is enough resources to communicate with voters. SuperPacs can provide that. But if voters can hear from other voices too, then the SuperPac megaphone is balanced out by those other voices. If a SuperPac drowns out everyone else, it has a much better chance of producing a win for its favored candidate.

I just would like to say thank you Mr. Potter, your segments on the Colbert Report were really educating and eye opening. Job well done sir.

Many thanks! But remember--I'm only answering his questions....

Who are the top 2 new congressional and top 2 new senatorial leaders to watch who would be inclined to pick up where McCain-Feingold left off on campaign finance reform and how do we get them to do an AMA?

we will need leaders on both sides of the political aisle. Sen. McCain continues to care deeply about this issue and the corrupting effects of money on the legislative process--but he has understandable said he does not want to spend time on this issue if it isn't going anywhere in Congress--so he needs help from others. Other Republicans like Sen. Cornyn say we need higher contribution limits--which I think would only make sense as part of a package that includes full disclosure of money spent in elections and some alternative source of campaign money--such as the American Anti-Corruption Act proposes. Otherwise, the same tiny slice of America that funds campaigns now just gets more leverage--did you know that only 1/3 of ONE percent of Americans give $200 or more to ANY political candidate or committee? So both sides of Congress are beholden to that 1/3 or 1 %. Even more amazing, only .05 of 1% of Americans give the legal limit ($2,500) to even ONE candidate--5% of 1% is a shockingly small slice of the country!

Where does the line exist between Super PACs as political entities which are entitled to various protections under the first amendment and Super PACs as commercial enterprises that enrich their owners and might be subject to commercial speech restrictions? Does the line even exist at all? I guess I'm asking this in reference to an observation Paul Krugman teased out of an essay recently written by Rick Perlstein criticizing much of the conservative political fund-raising apparatus as being something of a con (not that liberals haven't or couldn't fall into the same trap.) Is there a grey area where political speech and commercial speech intersect that could use some constitutional beta-testing or is the law pretty clear on the distinctions?

the fact that consultants and other "owners" may do financially well out of Superpacs is a fact of life--maybe something donors should be aware of, but not something the law really can regulate. Whether the motivation is political or commercial, the activity is left to the discretion of the SuperPac and its managers...