Tweaking the Elephant's Booty

The TRMPAC lawsuit rumbles into Travis Co. court

Former state Rep. Ann Kitchen, one of the plaintiffs in the TRMPAC suit
Former state Rep. Ann Kitchen, one of the plaintiffs in the TRMPAC suit (Photo By John Anderson)

Another lump of Texas elephant dung rumbled into court this week, as attorneys for the Texans for a Republican Majority Political Action Committee argued Tuesday that a lawsuit brought against the PAC by four defeated 2002 Democratic House candidates should be tossed out of court. The candidates – Paul Clayton, Mike Head, David Lengefeld, and Ann Kitchen (the Austin incumbent who lost to Rep. Todd Baxter in District 48) – sued on the grounds that TRMPAC had accepted more than $700,000 in corporate contributions (which cannot be spent on Texas campaigns) and also failed to report those contributions and related expenditures, as required by law, to the Texas Ethics Commission. The plaintiffs learned of the corporate contributions from reading required TRMPAC filings with the U.S. Internal Revenue Service (under later-overruled portions of the new McCain-Feingold campaign finance law) that did not jibe with TRMPAC's state filings.

The TRMPAC attorneys asked for a partial summary judgment to throw out certain of the candidates' claims, prior to a trial scheduled for March 29. State District Judge Darlene Byrne said she would issue a ruling on that request by March 24, perhaps earlier.

The Tuesday hearing was argued on highly technical legal grounds, even narrower than those promised in TRMPAC's pleadings. Representing former state Rep. Bill Ceverha, who acted as treasurer for TRMPAC, attorney Terry Scarborough argued at length that under Texas law, even if the court presumes that all the disputed contributions were illegal, the four named plaintiffs can only recover damages related to expenditures in their specific races. Scarborough told the judge, "If you agree with my limitation on the damages, you will grant the motion for summary judgment, because the plaintiffs have presented no evidence of illegal expenditures in those specific races." (A related lawsuit is proceeding separately against the Texas Association of Business, and Travis Co.'s District Attorney's Public Integrity Unit is pursuing a criminal grand jury investigation as well.)

Cris Feldman, staff attorney for Texans for Public Justice and a member of the plaintiffs' legal team, dismissed Scarborough's arguments as misstating both the nature of the claims against Scarborough's clients and Texas law on campaign finance. He said the state's interest at stake in campaign finance law is "clean and fair elections in Texas," and said that interest could only be served if the law is of sufficient deterrent effect – with the possibility of substantial financial damages – to discourage "bad actors." Feldman called the lawsuit effectively a form of civil enforcement against serious misconduct – equivalent criminal violations would be third-degree felonies, he said, adding, "But this is misconduct where the victim is the public as a whole." Feldman also pointed out that by definition the "contributions" could not be segregated by specific races, because they were given to TRMPAC to distribute as the committee saw fit. "Illegal contributions are a question at the front end, and repayment would cover all donations, irrelevant to specific races."

But in his argument to the court, Scarborough rode the damage limitation hard and long, insisting that as he reads the plaintiffs' claims, they say that every single losing candidate in some 86 contested House races is entitled to double damages on TRMPAC's corporate expenditures. By his math, Scarborough said, "That's $166 million in damages, and I can't believe that the Legislature, in enacting this law, contemplated that every treasurer of every PAC might be liable for that kind of penalty."

Feldman did not specifically address the extravagant dollar figures contemplated by Scarborough, but the plaintiffs' pleadings note that at least $725,737 in mixed corporate and individual contributions went unreported by TRMPAC, and that the PAC apparently did not clearly distinguish between corporate and noncorporate funds when spending money in support of Republicans in the two dozen House races it focused on in 2002 campaign. (Corporate donations can only be spent on narrowly defined administrative expenses.) In theory, should the suit succeed, Ceverha and Tom DeLay aide Jim Ellis, the other named defendant, could be liable for $1.4 million plus attorneys' fees. The hearing didn't approach some of the juicier charges in the suit, including whether the DeLay-created committee may have tried to "launder" $190,000 in corporate contributions by donating that sum to the Republican National Committee, which subsequently donated an identical amount to several Texas House races. Presumably, should the case proceed to trial, those matters will be centrally at issue.

Fred Lewis of Campaigns for People attended the hearing and afterward called Scarborough's calculations a "reductio ad absurdum" with little relevance to the law. Lewis said these portions of the Texas Election Code are intended to function as "private attorney general provisions," allowing citizens to recover in damages – and more importantly, to deter future violations – for illegal actions that officeholders are reluctant to prosecute because of the political landmines involved. "Who's going to enforce these laws?" Lewis asked. "The attorney general? The Texas Ethics Commission?" He answered his own questions. "That's why we've got the civil courts, to get at these violations that are too political to pursue otherwise."

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campaign finance, TRMPAC, Texans for a Republican Majority, Paul Clayton, Mike Head, David Lengefeld, Ann Kitchen

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