Following Tomstown's Money

It's election season in Texas. Are there indictments in the air?

Following Tomstown's Money
Illustration By Doug Potter

The TRMPAC litigants are back in court this week – scheduled for a closed-door update with new-to-the-case Judge Joe Hart – and it's a good moment to try to figure out where things stand. Not a great deal has changed since earlier this summer, when lame-duck U.S. Rep. Chris Bell, D-Houston, asked the House Ethics Committee to investigate House Majority Leader Tom DeLay's various fundraising schemes involving both his Americans for a Republican Majority PAC and its down-home spin-off, Texans for a Republican Majority. The committee has agreed to at least look into the matter – except in matters of pre-emptive war, Congress moves with extremely deliberate speed – adding the Bell investigation to the tidy pile of lawsuits and legal inquiries accumulating around the political and financial tools designed by DeLay to complete successfully the GOP takeover of Texas government and, not incidentally, the radical redrawing of the Texas congressional map.

Sifting through the stack, it appears that the lawsuit by several losing Dem candidates against TRMPAC – charging illegal use of corporate funds in the fall 2002 campaigns – is most likely to move forward first, although TRMPAC attorney Terry Scarborough, who once wanted a quick resolution, now says he doesn't expect his clients to be on trial before election day. A "confidential" agreement between the parties quietly delayed matters over the summer, and may or may not have lassoed DeLay aide Jim Ellis – who ran DeLay's re-redistricting operation here, but has since been claiming he can hardly spell "Texas" – into the proceedings.

Cris Feldman of Ivy, Crews and Elliott, attorneys for the Dems, says he's eager to complete discovery (including deposing Ellis) and move on to trial. Scarborough (who doesn't represent Ellis directly) says it's his understanding that for procedural reasons, Feldman has missed his chance with DeLay's aide. No doubt Judge Hart will have a good deal to say about these matters. Both sides say they're happy with their new jurist, although Scarborough in particular noted, "I wanted out of that rotating Democratic judge routine. I got somebody – although he's a former Democrat (that's all we elect in Travis County), he's smart, he's impeccable – I got somebody I wanted."

One Man's "Administration" –

The central issue in the lawsuit – as it is to one degree or another in all the pending legal actions – is whether TRMPAC violated Texas campaign finance laws by using corporate funds ("soft" money, as opposed to "hard" individual donations) illegally for direct campaign expenses. Under Texas law in effect for a century, corporate and union donations are limited to "administrative" costs, which by the Ethics Commission and long practice have been defined to include only office space, phone, utilities, and the like. TRMPAC (and its ally the Texas Association of Business, subject to a separate lawsuit) blithely expanded the definition of "administration" to include polling, fundraising, phone banks, consultants, etc. etc. Although only a handful of defeated Dems brought suit, all in all TRMPAC and TAB spent some $4.5 million – a whole lot of it from corporate sources – on two dozen legislative races that effectively transformed the balance of power in the Texas House.

In the courtroom and on the PR trail, attorney Scarborough has taken the novel position that the longtime Texas political understanding of "administrative expenses" is in fact a mass delusion. Instead, he insists, the relevant Texas law (and Ethics Commission opinions) only forbids the use of corporate funds for "express advocacy" – urging voters to vote for or against a particular candidate. "It may be that the TAB pushed the envelope a little further [in their advertising]," Scarborough told me, "but what TRMPAC did, didn't even come close to the line." Asked if he thought the court would share his interpretation, he continued, "My case is going to turn on that [express advocacy], and I'm going to win because of it."

Plaintiffs' attorney Cris Feldman had a somewhat different take on the TRMPAC version of campaign finance law. "They don't need a spin doctor," Feldman said. "They just need a dose of personal responsibility. Laundering corporate cash is felonious, and it's time for them to take responsibility for their actions."

Waiting for Ronnie

Fred Lewis of Campaigns for People takes a similarly dim view of TRMPAC's legal argument, dismissing it bluntly as "total hogwash." He notes that TRMPAC didn't bother to ask the Ethics Commission for an opinion on the legality of their approach – "because they knew the answer would be 'No'" – even though a request alone is a "complete defense" against any prosecution. To Lewis, the prolongation of the civil cases against TRMPAC and TAB, like the institutional feebleness of the Ethics Commission, has increasingly become a mockery of the law. "We're entering another election cycle," he points out, "and I hope the lesson is not: We might as well continue doing it [raising corporate cash] because we're going to get away with it."

Lewis is not the only one beginning to wonder whether and when the ongoing investigations of possible criminal violations by TRMPAC, TAB, Speaker Tom Craddick, the state GOP, and the various players leading back to DeLay – are going to bear fruit. Travis Co. Attorney David Escamilla just announced an indefinite delay in the misdemeanor investigation, apparently punting to the Lege itself (good luck). District Attorney Ronnie Earle – who some weeks ago declared the case to be about "corporate greed" – has shifted to more gnomic utterances: "We are searching for the truth, and the truth has no deadline."

Maybe not. But another major election is only a few weeks away, a new Republican PAC (Stars Over Texas) has begun cheerfully accepting huge corporate donations, and before too long, justice delayed will begin to look very much like justice twice denied.

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campaign finance, Texans for a Republican Majority, Joe Hart, Chris Bell, Tom DeLay, TRMPAC, Terry Scarborough, Jim Ellis, Cris Feldman, Texas Association of Business, Fred Lewis, Campaigns for People, David Escamilla, Ronnie Earle, David Escamilla

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