When late-night comedian Stephen Colbert entered the dark world of freewheeling political fundraising ahead of the 2012 presidential election, he unwittingly set the template for candidates in this presidential cycle.
Former Florida Governor Jeb Bush's campaign activity in particular is closely mirroring what Colbert did four years ago. And Colbert's lawyer, a successful campaign finance attorney, is watching closely.
In 2011, in an effort to poke fun at the country's newly unrestricted campaign finance system, Colbert created a super PAC with the tongue-in-cheek name "Americans For A Better Tomorrow, Tomorrow." Through the political organization he was able to raise an unlimited amount of money from individuals, corporations and unions.
Bush’s super PAC is called Right to Rise. And he, too, can raise unlimited amounts of money from individuals, corporations and unions.
As the presidential election approached four years ago, Colbert decided to mount a satirical run for “President of the United States of South Carolina." As a candidate for elective office, Colbert could no longer be associated or coordinate with his super PAC, per campaign finance law. He handed over control of the organization to his co-conspirator -- "Daily Show" host Jon Stewart.
Live on his late night show, Colbert discussed the plans with his lawyer, Trevor Potter. Potter instructed him that Stewart could run the super PAC as long as the two men didn't "coordinate," adding that "being business partners does not count as coordination."
Potter knew what he was talking about -- he's a former chair of the Federal Election Commission.
In fact, under the rules, Stewart could retain Colbert’s staff and engage in political activity -- like running campaign ads on Colbert’s behalf -- as long as there was no coordination between the two.
At the time, Colbert joked about the obvious questions surrounding those rules.
“From now on, I will have to talk about my plans on my television show and just take the risk that you might watch it,” Colbert told Stewart.
The move meant that Stewart controlled the more than $1 million Colbert raised, and he was free to raise and spend more money for political operations that would benefit Colbert's candidacy. Plus, the staff who worked for the super PAC would have have worked with Colbert for many months, likely knowing the strategy of his future campaign.
Colbert's point wasn't to promote a real candidacy but to illustrate an emerging campaign finance system riddled with loopholes and unburdened by past practices. But now, the same rules could apply to much more serious presidential contenders this year.
Once Bush announces his candidacy, it is expected that a close ally of Bush's will take over. It was reported Tuesday that Bush’s long-time adviser and political strategist, Mike Murphy, might not work for Bush’s campaign but for the super PAC after Bush announces.
"Colbert foreshadowed the idea that someone could control a super PAC and then when they decide to explore becoming a candidate then turn it over to someone like protégé Jon Stewart and the whole wink and nod coordination," Potter told NBC News.
While super PACs were prevalent in the 2012 presidential election, none were started by potential candidates. That's a role that was left to their wealthy supporters.
The role of the potential candidates in their own super PACs this cycle is one of the things that concerns campaign finance experts.
"These are people who are actively running, they just haven't announced it," Potter said.
Potter notes that one difference from Colbert's mock strategy is that Bush is engaging in campaign-like activity with a super PAC, such as hiring staff and traveling to critical nominating states. Those actions have historically triggered the application of campaign finance restrictions, including stringent fundraising limits of $2,700 per individual. (Remember, super PACs can raise unlimited amounts of money.)
"The difference is one in the same breath: I’m in it for the nomination and later going to claim [that I'm] independent," Potter said.
Potter also notes that Bush is not alone. Wisconsin Governor Scott Walker is engaged in the same activity. While he didn't set up a super PAC, Walker created a 527 group, which is different because it registers with the IRS and not the FEC. But it can also accept unlimited campaign contributions.
Paul S. Ryan, senior counsel at the Campaign Legal Center, said Bush and possibly Walker are wading in uncharted territory.
“We’ve never before seen a prospective presidential candidate stockpile unlimited presidential cash that was then used in the actual campaign cycle,” he said.
Ryan said the Federal Election Committee should be investigating if Bush and Walker are using their money for activities that would qualify them as candidates who are “testing the waters” - a legal term that activates a whole host of restrictions, including campaign fundraising limits.
"Were they raising and spending money to ‘test the waters?’” Ryan asked. "At the end of the day, unless you can examine the financial records of the organizations, it's impossible to state definitely that they are breaking the law."
That’s why at every campaign-style stop, Bush opens his remarks with a statement similar to this one in Iowa earlier this month: “I want to get the legal part out of this out of the way. I'm seriously considering the possibly of running for president - all of that now allows me to talk about that possibility in a way that doesn’t trigger a campaign.”
