T.A.B. to Earle: Drop Dead, Democrat!
The Texas Association of Business sues the DA and claims "partisan politics" are behind the T.A.B. ethics case.
The Texas Association of Business has ramped up its offensive against everyone who challenges the group's use of corporate funds to finance a $2 million political ad campaign. Last week, T.A.B. filed another lawsuit -- this one in federal court against Travis Co. District Attorney Ronnie Earle -- seeking to halt a grand jury investigation of how the business group paid for its political material. Additionally, the business group's attorneys were due in court this morning (Feb. 13) to ask a judge to throw out a lawsuit filed by one of the losing candidates targeted in the T.A.B. ad campaign. The $2 million blitz of "educational" mailers is credited, or blamed, by many observers with helping the Texas GOP take control of the statehouse.
Even some political observers angered by the business group's actions privately acknowledge that T.A.B. may have the law on its side, if a U.S. 5th Circuit Court of Appeals ruling last year is considered sufficient precedent. That decision pitted the state of Mississippi against the U.S. Chamber of Commerce, and opened the door for lobbying groups like T.A.B. to bankroll advertising campaigns with corporate money collected from undisclosed companies. The donors' identities are protected by the First Amendment right to free speech, the court ruled, if the campaign materials do not explicitly advocate a candidate's election or defeat. (Texas is within the jurisdiction of the 5th Circuit.) The T.A.B. mailers in question blasted particular candidates for their purported positions, but did not employ phrases like "vote for" or "vote against" candidate Jane or John Doe. The T.A.B.'s attorneys argue that absent the "magic words," the materials are not "electioneering" under Texas law and therefore corporations can fund them directly and secretly. (See "Expensive Education for T.A.B.," Nov. 29, 2002; www.auschron.com/issues/dispatch/2002-11-29/pols_naked8.html .)
Based on the Mississippi case, T.A.B. apparently is prepared to sue or countersue anyone who tries to force them to disclose who actually paid for the 4 million mailers that blasted or praised legislative candidates in 24 races. The business group fired its latest shot in federal court last week against Earle, whose office is overseeing a grand-jury investigation into possible violations of state campaign-finance laws. "This type of prosecutorial abuse must be stopped," T.A.B. attorney Andy Taylor said after filing the suit Feb. 6 -- the day the group was to have provided various documents to the grand jury.
Taylor had sought an emergency hearing to try to halt the investigation, but U.S. District Judge Sam Sparks declined to intervene and kicked the matter back to state district court. Taylor and co-counsel Roy Minton then sought an immediate ruling from the state court, but Earle, represented by attorney Jim George, requested more preparation time, considering the lawsuit had only been filed the day before. Travis Co. District Court Judge Mike Lynch will hear arguments Feb. 26.
The T.A.B.'s most pressing concern about the grand jury is that, if the group were compelled to identify its financial contributors, those persons and firms could be subpoenaed to testify. While grand jury testimony is normally kept private, the subpoenas themselves are a matter of public record. Two weeks ago, Taylor told the Chronicle that the business group would comply with the grand jury investigation "for now" and that the DA's office had extended the deadline for T.A.B. to provide information to the grand jury. Last week, it became clear what Taylor meant by "for now," and why he had sought to delay handing over the documents.
Jim George, speaking on Earle's behalf, said the business group acted in bad faith. "They made an agreement with the district attorney, and the district attorney gave them more time," he said. "They didn't keep their promise."
But that's not the point, Taylor says, noting that the whole legal issue boils down to one question: Were the campaign mailers constitutionally protected free speech? Taylor thinks the answer is yes. "We feel confident that everything we did was in full compliance with the law," he said.
In a press statement the group released last week, Taylor called Earle's grand jury investigation politically motivated and said the probe could pose a threat to free speech. Earle is a Democrat, while the majority of candidates backed by T.A.B. are Republican. "Once again, Ronnie Earle is letting partisan politics cloud his judgment as district attorney," Taylor said, in a vague reference to Earle's investigation of U.S. Sen. Kay Bailey Hutchison in 1994. The former state treasurer, a Republican, faced felony charges for allegedly using her office equipment and staff for political gain. Earle ultimately decided against pursuing the charges and Hutchison was subsequently acquitted, but the GOP has had it in for Earle ever since.