Transparency Champion Allegedly Violates Transparency Laws

Lawrence Lessig’s MAYDAY PAC failed to comply with federal disclosure requirements, FEC complaint says

Legal professor Lawrence Lessig / AP
November 21, 2014

Harvard law professor Lawrence Lessig is a believer in political transparency, but according to a legal complaint filed on Thursday, his Super PAC routinely flouts campaign finance disclosure laws.

At least ten television and radio ads and two pieces of direct mail failed to satisfy federal legal requirements for political communication disclaimers, according to the Center for Competitive Politics’ Thursday complaint with the Federal Election Commission.

The ads were all run in the lead-up to September’s New Hampshire Republican Senate primary. Lessig’s group, MAYDAY PAC, backed state senator Jim Rubens, who was defeated by the eventual nominee, former Sen. Scott Brown.

The two mailers backed Arizona Democrat state representative Ruben Gallego’s successful bid for a House seat in the state’s seventh district.

Lessig’s animating issue throughout the midterms was campaign finance reform. MAYDAY, he said, was a "Super PAC to end all Super PACs."

"I am a strong supporter of disclosure legislation," Lessig said in 2012. "Effective disclosure makes it possible for the public to identify the influences that might influence their candidates."

MAYDAY’s alleged violations are all the more striking in light of that position, according to CCP, a right-leaning legal nonprofit group. For all of Lessig’s transparency rhetoric, his group apparently did not comply with laws designed to improve political transparency.

"The hypocrisy is stunning," said CCP president David Keating in a statement on the complaint. "The Mayday PAC board and advisers constitute a who’s who of advocates for more speech regulations, yet either they didn’t understand the already complex law or they simply ignored it.

"If it’s the latter, what Mayday PAC seems to be saying to the public is that if you are big enough, and have the ‘right’ advisers, and care enough about campaign finance regulation, the law doesn’t apply to you," Keating said. "The FEC should make crystal clear that the law does apply to groups such as Mayday PAC."

MAYDAY’s alleged violations, which primarily concerned the wording of their ads’ disclaimers, might seem trivial to the layman. But CCP noted that required disclaimer language serves an explicit purpose, and imposes financial burdens on political communicators from which a committee cannot simply be exempted.

"Paid for by Mayday PAC. Not affiliated with any candidate or campaign," the group disclaimed in eight of its New Hampshire radio ads. A compliant disclaimer would’ve said that the group "is responsible for the content of this advertising."

That is not a trivial difference, CCP says, citing prior statements by FEC commissioners noting the importance of the language.

Small changes to disclaimers in ads also allowed MAYDAY to reduce the time in 30 or 60-second spots devoted to satisfying the FEC’s disclaimer requirements. That allowed the group to devote more airtime to the actual contents of the ad.

"Mayday PAC saved approximately 10 percent of its advertising costs compared to other non-candidate speakers" by illegally abridging disclaimers on two New Hampshire television ads, CCP said. "This amount is not trivial."

Its mailers in Arizona, meanwhile, said that MAYDAY is "not affiliated with any candidate or campaign," but did not include the required language, which says that an ad is not "authorized" by a candidate or campaign. Again, CCP said that is a significant difference.

CCP actually opposes some of the disclaimer requirements that the FEC places on political action committees and others who run political ads. "But no matter how silly or pointless these hyper-technical disclaimer requirements may seem, the law is the law."

Campaign committees, the complaint notes, expend significant resources complying with disclaimer requirements that some might see as frivolous or overly technical. Declining to sanction a group for failing to comply with those requirements would unfairly hobble smaller groups without MAYDAY’s extensive resources, CCP wrote.

"CCP is unaware of any other situation such as this, in which a Super PAC with over $10 million in funding, led by the director of a leading academic center on ethics, and supported by the resources and expertise of seasoned political operatives, spent at least hundreds of thousands of dollars to distribute advertising flouting the law’s disclaimer requirements," the group wrote in its complaint.

Keating said MAYDAY’s inability or unwillingness to comply with specific disclaimer requirements demonstrates the need for reforming those requirements.

"Campaign finance laws are too complex, and now we have proof," he said. "If a Harvard law professor can’t figure it out, what hope is there for the average person who wants to form a political group?"

After publication, Lessig directed inquiries about the complaint to this statement on his website: "To be clear: Every Mayday.US ad fully identified Mayday.US as its sponsor. And unlike Super PACs 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."

Published under: Campaign Finance