Does Larry Lessig Think He and Mayday PAC are Above the Law?

Does Larry Lessig think he and his supporters are above the law?

In response to a complaint that CCP filed with the FEC, documenting 12 instances in which Lessig’s Mayday PAC violated campaign disclosure rules, Professor Lessig offers this feeble defense:

Every Mayday.US ad fully identified Mayday.US as its sponsor. And unlike superPACs that accept dark money, Mayday.US discloses every contribution (over $200) as well. None could be confused about whom the ad was from, and anyone who cared could identify whom the PAC was funded by.

Well, bully. Let’s leave aside the fact that all Super PACs (Mayday PAC is a Super PAC), if they are complying with the law, “disclose every contribution (over $200) as well.” What is missing from Lessig’s defense is any excuse for failing to comply with campaign finance disclaimer laws, which are part of the extensive, compulsory disclosure regime that currently blankets American politics, with Professor Lessig’s support. Others have to comply with these laws and face FEC investigations and fines for failing to do so. And Professor Lessig has declared, “I am a strong supporter of disclosure legislation.”

Note that Professor Lessig’s defense doesn’t say that Mayday complied with the law – because, frankly, it can’t. Nor does he address the fact that the current disclosure laws are intended to do more than merely state who an ad was from (as one example, the law requires an explicit statement as to whether the ad was “authorized” by a candidate), and Mayday PAC’s disclosure did not address those elements at all. Rather, he simply says that, well, the law is an ass, at least when applied to Mayday PAC. Mayday PAC, you see, is the good guys, and since “no one could be confused about whom the ad was from,” complying with the law really shouldn’t matter.

Which is just the defense we thought Mayday PAC would raise, and why CCP President David Keating noted “what Mayday PAC seems to be saying to the public is that if you are big enough, and have the ‘right’ advisors, and care enough about campaign finance regulation, the law doesn’t apply to you.”

Lessig then attempts to play offense, because, well, there’s not much defense, and Mayday PAC is the good guys. How dare anyone care if they violated the law? The law is for the bad people who are spending lots of money trying to persuade voters whom to vote for – not for good people like Mayday PAC that spend lots of money trying to persuade voters whom to vote for. He writes:

I’m not quite sure what this complaint says about the current policy position of the Center for Competitive Politics. The Center has long been disclosure skeptics. Their website touts their work “to ensure that disclosure requirements do not become overly burdensome.” And the Center testified against provisions of a proposed Massachusetts disclosure law because in its view the law “forced [citizens] to engage in government-required speech with many unnecessary words.” As they went on to note:

“Ultimately, it is hard to understand why the proposed disclaimer is superior to a simple one required by many other states, such as “Paid for by American Action for the Environment.” All donors are already publicly reported.”

Yup. That’s our position. What is Mayday PAC’s position on “overly burdensome” disclosure and “unnecessary” “government-required speech”? Apparently it doesn’t have one, perhaps because disclosure requirements just don’t seem so overly burdensome or unnecessary when you just ignore those laws. The law, you see, is for little people, and those with corrupt hearts. Not for high profile, lavishly funded PACs with pure hearts.

Though Professor Lessig attempts to suggest otherwise, Mayday PAC’s violations are not trivial. As we noted in our complaint:

By ignoring the disclaimer requirements, Mayday PAC was able to include substantially more substantive speech than was afforded to other speakers …

[N]o matter how silly or pointless these hyper-technical disclaimer requirements may seem, the law is the law. Across the country, in every election year, thousands of speakers—many of which lack the multi-million dollar budgets of Mayday PAC or the legal expertise of its founder and staff—are expected to, and do, comply with these laws, often at great financial cost. Especially for small organizations, these requirements impose tremendous stress upon officers, directors, and treasurers.

And this last point is important. It seems more and more that America’s elites simply don’t think the law applies to them. From the Tea Party to Occupy, Americans increasingly share the belief that the insiders and the elites are excused from the laws others are expected to obey. Mayday PAC is founded by a Harvard Law Professor, funded by Silicon Valley millionaires, and has as its counsel one of Washington’s most exclusive, celebrity campaign finance lawyers (who also is on record supporting more disclosure laws). Are they excused from laws others are expected to obey?

Professor Lessig concludes his non-defense by complaining that a group such as CCP couldn’t possibly care if an organization such as Mayday PAC obeys the law. Rather, he suggests coyly, “Perhaps [CCP’s] filing against us — triggering an expensive proceeding for us and for the FEC — indicates they no longer take this position [against overly burdensome disclosure laws].”

Perhaps. Or perhaps we at CCP just think the law ought to apply to everyone, and only when it does will ordinary Americans be able to expect some relief from overly burdensome disclosure. Of course, in the meantime, most of those ordinary Americans facing “expensive proceedings” before the FEC don’t have Mayday PAC’s $10 million budget and fundraising prowess to call upon.

As to Mayday’s apparent befuddlement that a group that opposes “overly burdensome” disclosure regulations might file a complaint against a group that seeks more burdensome disclosure regulations, even as it fails to comply with existing rules, we can only note: “Embrace the irony.”




The Center for Competitive Politics is now the Institute for Free Speech.