Mayday! Mayday! Responding to Professor Lessig’s defense of Mayday PAC’s lawbreaking

Larry Lessig this week produced a second, more thorough, response to our complaint filed with the FEC against his Mayday PAC. Prof. Lessig’s latest response can, I believe, be accurately summarized into three points: one, disclaimer laws are not too complicated, they are actually straightforward, but vendors employed by Mayday PAC failed to correctly adopt them (despite Mayday’s best efforts). Two, all of the ads had sufficient information to distinguish Mayday from the candidates, and therefore followed the spirit if not the word of the actual law  CCP is just nitpicking. And three, CCP is being hypocritical and somewhat petty for bringing this complaint, as it believes disclaimer laws to be an unjust restriction on free speech. Calling for their enforcement, therefore, is wrong, and Mayday PAC’s failure to comply with the law should be of no concern to CCP.

Let’s take this point by point.

Because, in many ways, this is an argument about words and their meanings, let me quote extensively from Professor Lessig’s blog to avoid any misconstruing of his remarks. On the relative complexity of disclaimer regulations, Prof. Lessig writes:

The FEC’s disclosure rules are not complex, and the rules are not hard to follow. Indeed, in an accountant sense of complexity, they’re really quite simple. The rules specify precisely what has to be included on every kind of communication. One must be careful in applying them, but the rules are not difficult to understand.

As we have made clear in our filings with the FEC, the problem had nothing to do with the complexity of the law. The problem was getting vendors to follow it. That problem was ultimately caused by our failure — which means my failure — to structure approval process [sic] differently. But that failure was mine. It had nothing to do with the complexity of the law.

When we launched our campaign, we took the steps to circulate the rules to the vendors making the ads. We assumed — mistakenly — that would suffice. When we discovered an issue with an early ad, the COO flagged it for the vendors, and we changed the ad approval system (adding a formal compliance sign-off before an ad would go on air). Even then, in one case, even though we had flagged an error and told the vendor to fix it, they mistakenly failed to fix it. Within a couple weeks, we had formalized the procedure enough (and buttressed it with at least one ALL CAPS EMAIL from me) so no other such errors occurred.

(Emphasis in original).

Professor Lessig makes an interesting point here. Essentially his argument is that the rules are simultaneously simple and difficult to follow. By this standard, for instance, raising a child and composing a symphony are complex tasks because there is no set of enunciated steps that need to be followed. But calculus and Newtonian physics are simple “in the accountant sense of complexity” because they are systems with set rulebooks that detail specifically what needs to be done. Campaign finance laws, and disclaimers particularly, fall in the second category, and are therefore relatively simple.

While this is an interesting epistemological argument, it almost completely misses the point. Like calculus and physics, the difficulty with campaign finance laws comes in learning the rules and applying them correctly. And we know that Mayday PAC had difficulty with this because it failed to apply them correctly, whether the failure came from vendors who were unable to grasp the rules either through ignorance or disinterest, or the legal experts, including Prof. Lessig, who were unable to adequately teach the rules to those vendors is irrelevant. In this case, however “simple” the rules were in theory, they were too complicated to actually be executed correctly, in practice. (We note that in some of the radio ads cited in our complaint, Professor Lessig personally did the voiceover with the non-compliant disclaimer, making it hard to believe that this was only a “vendor” error.)

And that is one of the points CCP has tried to make. The level of expertise required to learn calculus should not be required to participate in the political process. This is particularly so because if it is hard for the electoral equivalent of the college calculus professor with a multi-million dollar budget to comply with the law (as Mayday’s struggles have proven), then it is going to be that much more difficult for the layman or small grassroots organization, who just doesn’t like their sitting congressman.

Which brings us to Prof. Lessig’s second point – namely that everyone knew that these ads were from Mayday PAC, and not from a candidate, and that specific language that they used was irrelevant to the spirit of disclaimers. Again, quoting Professor Lessig’s post:

Even so, every ad had all the information one would need to identify it as an ad from us and not from the candidate. CCP’s accusation, in the main, is that we used the wrong word. Rather than “not affiliated with,” we should have said “not authorized by” — or so the speech libertarians, defenders of the First Amendment, opponents of “compelled speech” and “government-required speech with many unnecessary words,” say. We don’t believe the law is as restrictive as CCP insists. And so while we don’t believe the law has been violated to merit any enforcement action, we certainly didn’t intend the deviation the CCP has so diligently flagged.

Let me first emphasize that the phrase “in the main” is doing a lot of work for Prof. Lessig here. Our FEC complaint lists a multitude of specific ways that Mayday’s disclaimers did not comply with the law. Some of their ads, for example, used the wrong verbiage, stating “Paid for by Mayday PAC,” instead of the much longer required wording, “Mayday PAC is responsible for the content of this advertising.” Some of their radio ads omitted Mayday’s web address or other contact information. There were many errors. These type of noncompliance are not trivial, but have a real effect. In this case, they shortened Mayday’s disclaimers relative to legally compliant ones, giving Mayday relatively more air time to promote the political message it likes. Undoubtedly, lots of candidates and other advertisers would like to do that. Candidates might prefer to say “Give me liberty, or give me death,” or perhaps “We have nothing to fear but fear itself.” The law, however, requires them to say some variation of, “I am [name of candidate], a candidate for [office sought], and I approve this message.” See 11 C.F.R. 110.11(c)(3)(iv). And undoubtedly some independent speakers would prefer a shorter disclaimer than the legally mandated “XXX is responsible for the content of this advertising,” giving them time to promote some other message. But the law requires the longer disclaimer. 11 C.F.R. 110.11(c)(4)(i).

But let us examine the “not authorized” vs “not affiliated” distinction that Prof. Lessig focuses on. Professor Lessig suggests that our reading of the law is too “restrictive.” Well, decide for yourself. Here is the text of the law:

If the communication, including any solicitation, is not authorized by a candidate, authorized committee of a candidate, or an agent of either of the foregoing, the disclaimer must clearly state the full name and permanent street address, telephone number, or World Wide Web address of the person who paid for the communication, and that the communication is not authorized by any candidate or candidate’s committee.

11 C.F.R. 110.11(b)(3). (Emphasis added).

Of course, it is possible that Mayday PAC thinks that saying “not affiliated” is the same as “not authorized.” If so, they’d be wrong, and either not getting legal advice, or not getting good legal advice. For under federal campaign finance law, “affiliation” and “authorization” are different things. Affiliation is defined at 11 C.F.R. 100.5(g) and 110.3(a)(3)(ii), and an “authorized committee” is defined at 11 C.F.R. 100.5(d) and (f). While the simple term “authorized” is not defined, “authorized” generally means and I know of no campaign finance attorney who thinks otherwise that the candidate has approved or OK’d (“authorized”) the activity. “Affiliation,” for purposes of campaign finance law, links organizations together for purposes of reporting and contribution limits. (Simplicity, anyone?) Thus, Mayday PAC can be “unaffiliated” with any candidate or other PAC, but it’s expenditure could still be “authorized” by a candidate all the latter would take would be for Professor Lessig or another authorized representative of the PAC to ask the candidate if he would like Mayday to run such an ad. It may be true that many in the audience would think that they mean the same thing. But from an enforcement standpoint, neither the FEC, nor journalists covering the campaign, nor “watchdog” organizations can know from Mayday’s illegal disclaimers whether or not Mayday’s communications were “authorized” by a candidate, and thus should be treated as “coordinated expenditures.” If so, they were illegal because they far exceeded the limits for coordinated expenditures. See 11 C.F.R. 109.21. In short, the difference matters, in the same way that “in an accountant’s sense,” “receipts” and “income” are not necessarily the same thing, even if many casual listeners may equate them.

Perhaps, then, the law is more complex and difficult to understand than even Professor Lessig realizes, which would explain both why Mayday PAC got into this mess, and why Professor Lessig doesn’t think the law is “complex” or “hard to follow.”

But let’s dig deeper.

Imagine for a moment that you were running your first political ad in a federal campaign, and didn’t have millions to consult a good lawyer, or simply preferred to spend your money on message rather than lawyers. How would you figure out what disclaimer to run on your ad? I would probably look at the ads other groups like mine were running and copy those disclaimers. And if you did that, you would almost certainly have gotten that one right, because you would have seen that other ads all said “not authorized,” rather than “not affiliated.”

This suggests to me that someone within the Mayday hierarchy, at least on this particular non-compliant part of their ads, did intend to deviate from the standard disclaimer language (even if they did not intend or know that doing so would violate the law). By focusing on the complexity of the law, we have actually been giving Mayday PAC and Prof. Lessig the benefit of the doubt. The alternative is that they purposefully deviated from the standard language, and that someone consciously decided that the “affiliated” language was better than that required by law.

Why would someone prefer “not affiliated with” over “not authorized by”? I can think of a number of reasons. “Not affiliated with” connotes a formal distancing of campaign and independent group whereas “not authorized by” allows, and some might say almost invites, the idea of tacit approval or at least some other connection between the independent spender and the candidate. Perhaps, the individuals at Mayday (who promote the idea that such winking or other connections occur between candidates and other groups) wanted to make it more clear that such connections did not exist between their Super PAC and the candidates they supported. Perhaps Mayday wanted to highlight its independence and thought the “not affiliated with” language furthered that message – as if to say, “not only are we not authorized by any candidate, we are not affiliated with any of this – we are above politics generally.” Or perhaps Mayday just wanted its ads to draw the listeners’ attention as a little bit different in the vast sea of political ads. Nor is this a likely vendor error – normally, an ad goes to a vendor with a script. Vendors don’t write the disclaimers – they simply have to read the script.

In the end, if it is not simple complexity that tripped up Mayday PAC, then it would seem to be a combination of complexity and intent, or maybe just intent. Why would they prefer “not affiliated” to “not authorized?” We can only hypothesize. The point, however, is that the language of a disclaimer serves specific legal purposes (perhaps not good ones, but ones put in the law). The specific language used does more, for better or for worse, than simply tell the audience who is running the ad, both as a matter of law and as a matter of substantive impact on the listener. At the very least it is possible that Mayday recognizes this fact, and changed the disclaimer to better support its message. Certainly, there are many other campaigns and independent spenders that would prefer to use other language than that required by law, but don’t do so even when they sincerely believe that doing so will provide the audience with “all the information one would need to identify it as an ad from us and not from the candidate.” They don’t do so because they expect that if they do, they will be penalized by the FEC.

So yes, there is no doubt what group ran these political ads. But we don’t know if the ads were “authorized by a candidate.” And even assuming they were not, when Mayday changed the words, they gained some political advantage, however small, over other organizations that didn’t violate the law — more time for other substantive messaging, and perhaps a substantive advantage in the disclaimer itself. So compliance matters in that sense, even if all this has nothing to do with political equality or the prevention of “corruption.” If it is now open season for FEC disclaimers — “close enough is good enough” — the FEC can use this case to let the euphemistically designated “regulated community” know. And for that reason alone, it will be good to have the FEC rule on this complaint.

Which brings us to the final point: What are CCP’s motives for filing this complaint? Lessig again:

They’ve defended all this — in particular, the enforcement of rules they don’t agree with against an organization they don’t agree with — with our sometime slogan, “embrace the irony.”

But there’s an important difference between what we did in the last election and what CCP is doing here.

When we created Mayday.US, we exercised a liberty that the law left to us, and to everyone else as well. We didn’t seek to invoke against a foe a law that we believed was unconstitutional, or unwise, or seek to penalize someone on the basis of a law that we believe is unconstitutional or unwise. That’s very different from what CCP is doing here. The CCP believes “burdensome” disclosure laws are unconstitutional. That’s its view of the current law in Massachusetts. They certainly believe the current law is unwisely burdensome. Given those beliefs, their action here is the equivalent of the NRA filing a complaint against Michael Bloomberg for failing to properly register a handgun. Of course, it is a complicated question whether and when a government official must enforce a law that he or she thinks is unconstitutional. (The Supreme Court, for example, feels itself free to disagree with Congress on constitutional grounds, but doesn’t think lower courts are free to disagree with it.) But when a private organization invokes a law that it thinks is unconstitutional in order to penalize speech that it thinks should not, constitutionally, be penalized, I’m not sure the word “ironic” is the best description of that behavior.

Maybe CCP believes the laws are perfectly constitutional. Maybe it is using its legal resources (and taxing the FEC’s and Mayday.US’s resources) because it really believes it important that the word “authorized” be used rather than “affiliated.”

But I suspect all this comes from a lesser motive. That’s too bad. Big ideas don’t belong in tiny briefs, and CCPs ideals are more significant than these briefs make them seem.

There is indeed “an important difference” between what we have done and what Mayday PAC has done. We have obeyed the law, while arguing for freedom. They have violated the law, and argued that they should be exempt, but others should sacrifice still more freedom.

More specifically, when Professor Lessig says that Mayday PAC “exercised a liberty that the law left to us, and everyone else as well,” he is wrong. Mayday did not “exercise[] a liberty that the law left” to them – it broke the law. The whole point is that neither Mayday PAC, nor “everyone else,” has the liberty Professor Lessig apparently thinks Mayday PAC should have. If they had that liberty, their activities would have been lawful. Other groups cannot say whatever they like in political ads; they have to follow a litany of specific rules and regulations. Mayday PAC advocates and support these types of speech restrictions — indeed, Lessig defends them again in this post, and claims that they’re really not burdensome or hard to follow — at least for other political speakers, and perhaps accountants. But for themselves, Mayday apparently thinks that close enough is good enough. Mayday PAC was trying to exercise a liberty that the law does not allow, and that they would deny to others. If Professor Lessig has trouble with this, we urge him to think a bit more seriously about this issue, and to join us in fighting for freedom rather than restrictions on political speech and activism.

It is ironic that Professor Lessig made this defense, and attack on CCP, during the week of Abraham Lincoln’s birthday, because a quote often attributed to Lincoln is “The best way to get a bad law repealed is to enforce it strictly.” I have problems with that philosophy, because a) I don’t think that that is always true, and b) in the meantime, the cost to innocent people can be considerable. But I do know this: selective enforcement of the law that exempts those who favor vigorous enforcement and advocate the imposition of more unjust laws, but only on others, is a pretty sure ticket to getting more unjust laws. And Mayday PAC is not an innocent party — it affirmatively seeks more restrictions on the speech of fellow Americans, while arguing that even the existing laws shouldn’t apply to it. If Mayday PAC wants to challenge these regulations, we will represent them. Pro bono. It’s what we do. But apparently that is not what Mayday PAC wants. They want such rules to apply, just not now, and just not to them.

I know this may come as a surprising revelation to the reform community, but far from having a lesser motive, we believe that we are helping “the little guy.” We think that while the reformers and regulators have tried for four decades to “get money out of politics,” the result they have actually achieved is infringing on the liberties of everyday people and organizations to have their say in the political arena, debasing political discussion, and generally making our electoral system worse. Its not personal — we just want a well-functioning democracy and freedom of speech for all concerned. That’s a pretty big motive.

We filed this complaint because we think everyone should have to follow the same rules, and that unless self-styled “reformers” are forced to comply with the rules, they will continue to advocate — too often with success — for unjust laws. We hoped Mayday PAC, based on its difficulties, would see the light. But since that has not occurred, perhaps Mayday PAC can serve as a shining example of what happens when noble intentions collide with actual campaign regulations, and the actual effect these regulations have on what ought to be perfectly lawful activity.

Nor do we believe that this is a complaint that the FEC should take lightly. It has fined much smaller, less wealthy speakers for much less. Mayday PAC is a large outfit with a multi-million dollar budget. Its founder and head is a Harvard Law Professor. Its legal counsel is a former Chairman of the FEC. Its board includes recognized experts on “corruption.” Its funders are some of America’s wealthiest men and women. In short, there is really no excuse for Mayday’s failure to comply with the law, and it is the type of high-profile case that ought to draw the FEC’s attention.

If Mayday PAC thinks it is hypocritical of us to point all of this out, we say again, “embrace the irony.” And then embrace freedom. You’ll get no complaint from us.

Scott Blackburn contributed to this post.

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