If an Attorney Is So Certain That Discussion Is Moot, Why Have Courts?

RECEIVED Tue., March 16, 2004

Dear Sir,
   I am an attorney. I have worked on Texas ethics laws for the past 20 years. Ten of those years were in service to the Texas secretary of state where I served six secretaries – three Republicans and three Democrats.
   I would like to share with you some observations about the last general election as you consider the facts of the ongoing investigation by DA Ronnie Earle.
   The speaker's race statute restricts the involvement of committees and other groups in acting to aid or defeat the election of a speaker candidate. However, the statute does not prohibit speaker's candidates from supporting their party's candidates in the general election.
   Both Speaker Tom Craddick and Speaker Pete Laney were actively engaged in 2002 in efforts to elect enough state representatives from their respective parties to enable that party to control the Texas House. These were two senior members of the House actively engaged in the general election battle to elect as many members of their party as possible.
   In his effort to get his party's candidates elected, former Speaker Laney completely controlled the contributions and expenditures of the Texas general-purpose political committee "Texas Partnership Political Action Committee."
   In TPPAC correspondence, Speaker Laney identified himself as "Chairman" of the political action committee, and in the official filings with the Texas Ethics Commission he identified himself as the "Person Appointing Treasurer," and as the sole "Contribution Decision Maker," and the sole "Expenditure Decision Maker." The public record clearly discloses that Speaker Laney completely and totally controlled the Texas Partnership PAC and decided which candidates received contributions from the PAC.
   In the 2000 election cycle, Speaker Laney's Texas Partnership PAC made more than 170 campaign contributions to candidates for the Texas House. In the 2002 election cycle Speaker Laney's Texas Partnership PAC made the same types of campaign contributions. The candidates supported reported them as campaign contributions from the Texas Partnership PAC.
   Speakers Laney and Craddick did nothing wrong or illegal. We must not confuse general election campaigns with the speaker's race. It is legal and appropriate for a leader to support his party's candidates in the general election and to encourage others to support those candidates. In fact, a legislative leader would be failing his obligations and duties to his party's candidates if he didn't fully and actively support them in the general election. But that support concerns the general election, not the speaker's race. Not every action by a leader relates to the speaker's race. A leader must be allowed to rally support for his party's candidates in the general election. Such support does not trigger a speaker's race violation.
Edward M. Shack
   [News Editor Michael King responds: Mr. Shack is too modest by half. He is not simply "an attorney," but the attorney who advised many of the central Republican players on the laws governing their involvement in the 2002 legislative campaign. His letter is in effect a commentary on his own legal counsel, of which he approves. As he knows, the speaker's race statute is only one aspect of the DA's investigation into campaign irregularities, after public interest groups raised questions about Speaker Craddick's direct donations of Union Pacific PAC funds to particular House candidates. Shack may well be correct that this was simply an expanded version of political business as usual, although the investigation of Craddick, Pete Laney, and the other speaker candidates may show otherwise. Far more interesting are the aspects of the investigation Shack fails to mention. Most importantly, business groups and GOP PACs spent millions in corporate or "soft" money for political activities like fundraising, polling, telemarketing, "voter education," and similar functions. They say they were acting on legal advice that defined such costs as "administrative overhead" under Texas law, a definition heretofore unknown to either the Texas Ethics Commission or prosecutors. We're not attorneys, but we can read.]
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