Monday, November 24, 2014

Larry Lessig: Campaign Finance’s Leona Helmsley

Before Citizens United, before the Bipartisan Campaign Reform Act, even before Terry McAuliffe was shepherding Democrat donors into the Lincoln Bedroom for sleepovers, there was Leona Helmsley. The brusque New York City hotel maven thrust herself into the spotlight reigning over the 1980s go-go Manhattan real-estate scene. Tagged the ‘Queen of Mean,’ she finally met her downfall on a tax evasion rap. At her trial, one of her servants famously quoted her saying “We don’t pay taxes. Only the little people pay taxes.”

Over two decades later, law professor and campaign finance reformer Larry Lessig has added political advertising disclaimers to the list of legal obligations elites reserve for commoners.

According to a complaint filed by the Center for Competitive Politics, Lessig’s Mayday PAC repeatedly flaunted federal disclosure laws on its broadcast and mailing advertisements.

Mayday PAC’s noncompliance doesn’t appear to be accidental. Reformer elites litter its board including progressive darling Zephyr Teachout, who recently ran for New York governor on a good-government platform. Moreover, the complaint states Mayday PAC switched back and forth between compliant and noncompliant disclaimers suggesting expediency rather than ignorance.

CCP estimates Mayday PAC corralled as much as 10% more air time for substantive content by using noncompliant disclaimers on radio advertisements, saving the group at least $26,500. The rogue disclaimers may have also confused the public about the source of Mayday PACs ads or its possible authorization by the candidates the PAC supported.

<This devil-may-care attitude toward federal disclosure law is even more dispiriting given both Lessig’s and Teachout’s prominent positions with the transparency organization, The Sunlight Foundation. Lessig serves on its Advisory Board and Teachout is a former National Director. The group states, “Our overarching goal is to achieve changes in the law to require real-time, online transparency for all government information, with a special focus on the political money flow and who tries to influence government and how government responds.” One obvious way to cloud transparency in political advertising is to flout FEC regulations by obfuscating disclaimer requirements.

Of course, another possibility also exists. Lessig may now be a reluctant apostate to the transparency cause—channeling less Leona Helmsley than Barak Obama. On numerous issues—e.g. Guantanamo, recess appointments, debt ceiling—candidate Obama found fault with his predecessor. But once in office and faced with the realities of governing, President Obama continued policies he had once pilloried. Lessig, in his role this cycle as political operative, was privy to a different world than his previous forays as academic theorist and Senate Committee pontificator.

One lesson Lessig admitted learning when he finally returned to public view after his midterm shellacking was ‘transparency has its costs.’ He complained one incumbent Mayday PAC tried to unseat pressured some of its donors.

Untoward political pressure on donors is apparently a new experience for Lessig’s patrons. But anyone following Harry Reid’s six-month tirade against wealthy conservative donors, or the pre-FEC exploits of disclosure doyenne Ann Ravel knows how operatives exploit disclosure laws. Last spring, for example, technology executive Brendan Eich was bullied out of his job after activists garishly bandied a six-year old donation he had made to an unpopular cause.

If Lessig has learned a hard lesson in political reality and is no longer a doctrinaire reformer, he should be welcomed to the side of freedom. But with freedom comes responsibility. This includes acknowledging the rules apply equally to everyone, not just the little people. 

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