Toomey or Not Toomey: Update
Tue August 28, 2007 12:43 am

In Sunday's post, "Toomey or Not Toomey, That Is the Question," I wrote about Judge Joe Hart's ruling in the lawsuit brought by Democratic legislators who lost races for reelection in 2002 and filed suit against the Texas Association of Business, TABers Bill Hammond and Jack Campbell, lobbyist Mike Toomey, and corporations who donated funds to TAB, alleging violation of campaign finance laws. In his ruling, Judge Hart granted the motion for summary judgment sought by the corporate defendandants but allowed the case against the TAB defendants and Toomey to go forward. Hart issued a rather puzzling ruling, saying that he was granting the summary judgment against the corporate donors because the mailers distributed by TAB did not have "magic words" such as "vote for" or "vote against" a candidate. He denied the motion for summary judgment brought by the TAB defendants and Toomey, saying that there was a fact question of whether the association between TAB and Toomey amounted to a political committee.

What I found puzzling was that the emphasis Judge Hart placed on the "magic words" test seemed to be irrelevant and unnecessary. If TAB/Toomey was in fact a political committee, then it was entitled to advocate the election or defeat of candidates. If TAB/Toomey was not a political committee, then they could not advocate the election or defeat of candidates, and in fact they did not do so. The mailers merely informed recipients of votes cast by the Democratic candidates. The fact that TAB/Toomey did not use magic words, therefore, was no reason to grant the summary judgment on behalf of the corporate defendants. The real issue is whether the donations were legal or illegal.

A political committee is an association of two or more people or groups, the purpose of which is to advocate on behalf of particular candidates. This is true whether or not they dot the i's and cross the t's in complying with state law, which requires, for example, that a committee name a treasurer and that it file reports of contributions and expenditures. Texas law prohibits corporations from contributing money to political committees to be used for political purposes. (Donations for administrative expenses are permissible.) If TAB/Toomey is found to be a political committee by the finder of fact, which could be the trial judge or the jury, then the corporate contributions may well be illegal. Magic words have nothing to do with it.

Corporations may form their own political committees and contribute to individual candidates. But they may not contribute directly to political committees. That is the core of the lawsuit. If the issue is whether TAB/Toomey was a committee, then how could Judge Hart grant a summary judgment dismissing the suit against the corporate defendants before the determination of whether TAB/Toomey was a committee is made?

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