Without DeLay

The political landscape changes in an instant, and when it does, careers can come to an end. So it happened with tom delay, whose lack of self-restraint and self-awareness made him the architect of his own undoing.

by Paul Burka

May 2006

(Page 4 of 5)

But another episode, which resulted in yet another admonishment of DeLay, had lasting repercussions. Chris Bell, who lost his congressional seat in the 2004 Democratic primary as the result of DeLay’s midcensus congressional redistricting plan passed by the Legislature in 2003, had filed an ethics complaint containing multiple charges. The most serious questioned DeLay’s participation at a spring 2002 fundraiser for various Republicans hosted by, among others, Westar Energy Corporation at the Homestead, a posh golf resort in Virginia. The fundraiser occurred just before a House-Senate conference committee met to resolve differences on a major energy bill. Westar, a Kansas utility company, had several billion dollars riding on getting a provision in the bill that would allow the costs of deregulation of electricity to be passed on to its customers. One of Westar’s vice presidents came up with the idea of having the provision inserted in the conference committee. To that end, it hosted a fundraiser for Republican causes and invited DeLay.

The majority leader apparently wasn’t very subtle. “Mr. DeLay asked the group to advise him of any interest we had in federal energy legislation,” a counsel for the Westar contingent at the conference wrote the Ethics Committee in response to a query for information. “The following day, [the company’s vice president] provided a staff aide to Rep. DeLay a bound briefing book that Westar had put together on this issue.” DeLay told the committee that he had no recollection of his specific remarks but “it would not be typical” for him to have made such a statement at a fundraiser. (The provision sought by the company was accepted by the conference committee, only to be removed when Westar became the subject of unrelated investigations.)

The Ethics Committee wrote DeLay that his actions “were objectionable under House standards of conduct because, at a minimum, they created an appearance that donors were being provided special access to you regarding the then-pending energy legislation.” The best light that can be put on this incident for DeLay is that he told the Westar people what they wanted to hear while taking home a $25,000 contribution for one of his PACs and didn’t give a flip how it might look. The worst light is that Westar got what it paid for with its $25,000 contribution. DeLay had behaved like the cartoon version of himself: He didn’t care how blatant he came across, as long as he got the money.

But somebody else cared. Westar’s $25,000 contribution went to a new DeLay PAC, called Texans for a Republican Majority (TRMPAC), whose purpose was to help the GOP take control of the Texas House in the upcoming 2002 election. And the person who noticed the transaction was Travis County district attorney Ronnie Earle, whose Public Integrity Unit was charged with keeping Texas politics honest.

SOON AFTER ELECTION DAY in November 2002, Earle heard rumblings of a massive infusion of corporate money into House races around the state. Voters in districts with contested races had received multicolored mailers lambasting the voting records of Democratic candidates. The election returns produced a mammoth swing toward the Republicans; a 78—72 Democratic majority became an 88—62 GOP majority. Bill Hammond, the executive director of the Texas Association of Business, bragged to the Austin American-Statesman that his organization’s role in the campaign “blew the doors off the November 5 general election.”

Hammond’s comment was the genesis of Earle’s ongoing investigation into the use of corporate funds in the 2002 election, which eventually led to TRMPAC and Tom DeLay. As a Democrat, Earle has come under heavy attack from Republicans for acting with partisan motives—in particular, for trying to avenge the carving up of Travis County in DeLay’s redistricting plan. DeLay himself, ever the pot, has accused the kettle of being “an unabashed partisan zealot.” Earle’s standard defense is that he has prosecuted more Democrats than Republicans, but Republicans will never forgive him for going after then—state treasurer Kay Bailey Hutchison in 1994 on felony charges that seemed trivial: using state employees for personal and political tasks and destroying evidence on state computers. The case ended in total vindication for Hutchison, who went on to win a special election for the U.S. Senate.

His party affiliation notwithstanding, Earle directs his primary animus not at Republicans but at corporate money in politics. His rhetoric comes straight from nineteenth-century populism. He takes issue with what he calls the U.S. Supreme Court’s “bizarre ruling” in 1886—one of the most settled principles in American jurisprudence—that corporations have the same rights as persons under the due process and equal protection clauses of the Fourteenth Amendment. “Corporations are not people,” he has said. “They are things that exist solely for profit with, in the words of Judge Learned Hand, ‘neither an arse to kick nor a soul to damn.’” In a speech to the Professional Advocacy Association of Texas—a trade association of Capitol lobbyists—last September, Earle laid out his case against corporate money.

“I submit to you today that the problem is the corruption of representative democracy by large amounts of money, both corporate and private,” Earle told the lobbyists. “It would surprise no one that the root of all evil of our political system is money. Large moneyed interests pay $10,000, $25,000, and up for ‘face time’ with a powerful politician so that big corporations and rich individuals can get special deals. But there’s no face time for John and Jane Citizen, who are raising three kids, holding down two jobs apiece, and they have no health insurance. Something is wrong with this picture. It is corrupt. It is a corruption made possible by corporate money. We must do something about corporate money in politics… . It is our job—our fight—to rescue democracy from the money that has captured it.”

Tom DeLay is the adversary of Ronnie Earle’s dreams. The speech makes a perfect argument to a potential jury, to twelve John and Jane Citizens who have a chance to “do something about corporate money in politics” by making an example of the Hammer, the enforcer of the K Street Project, the indefatigable solicitor of corporate funds. That motivation underlies Earle’s case, not partisanship.

DeLay faced three charges relating to the misuse of corporate funds (by law, corporate contributions to a PAC can be used only for administrative expenses and cannot be given to candidates). The first indictment—for conspiracy to violate election laws by using corporate funds in campaigns—was quashed by trial judge Pat Priest on the grounds that the crime of conspiracy to violate election laws was not on the books in 2002; the Legislature did not pass such a law until 2003. The judge rejected the prosecution’s contention that the general conspiracy law, which has been on the books forever, applied to election law violations.

Part of the frustration for DeLay and his lead lawyer in this case, Dick DeGuerin, the high-profile Houston defense attorney, is that victories such as this one came at a price, and the price is measured not in money but in time. From the moment last September that DeLay was forced to step down temporarily as majority leader due to a Republican Conference rule that prohibits a member accused of criminal conduct from holding a leadership position, he had been in a race with the clock to achieve vindication before the loss of his position became permanent. DeGuerin succeeded in getting the original trial judge replaced by Priest, a highly regarded senior judge from San Antonio, on the basis of partisanship, but time slipped away. When Priest quashed the conspiracy indictment, Earle appealed. More time passed. At the oral argument in a packed courtroom near the Capitol in late March, DeGuerin began his presentation by saying to the three-judge panel, “I don’t mean to make a pun, but in this case, justice delayed is justice denied. Please make a ruling with dispatch.”

At the time, DeGuerin had to be concerned about DeLay being on trial during the fall campaign season, but his client’s exit from public service makes the trial date irrelevant. The case cannot proceed in the trial court until the appeal is resolved, and even then the losing side is likely to seek a review by the Court of Criminal Appeals. Only after the case returns to Priest’s court can two major defense motions be dealt with—one alleging prosecutorial misconduct (for bullying a grand jury into an indictment), the other seeking a change of venue. With DeLay out of politics, a plea bargain is possible, but both Earle and DeLay say that they want to go to trial.

Priest has refused to throw out the remaining two counts against DeLay, which involve money laundering and conspiracy to money launder. These arose from a transaction in which TRMPAC sent $190,000 in corporate funds to the Republican National State Elections Committee, in October 2002, and then the RNSEC cut checks, totaling $190,000, to seven Republican legislative candidates from a different account consisting of individual contributions, which can legally be used in campaigns. Does this meet the definition of money laundering, which is the conversion of dirty money to clean money? Priest laid out what the state will have to prove in order to get a conviction for money laundering: “If funds were sought and obtained from corporations [by TRMPAC or its agents] in order to channel the funds to individual candidates, or if the money was so channeled though originally lawfully received, the crime was complete.” In other words, if it was the plan from the beginning to use the funds in campaigns, and the state can prove it (through e-mails, for example), that’s a crime, because the funds were given to TRMPAC for an illegal purpose. If, however, the funds were legal at the beginning but became illegal when they were used for something other than administrative expenses (the $190,000 swap at the RNSEC, to be exact), then once again, a crime was committed. In both cases the key question will be whether Tom DeLay was involved in the decision to send the money to the RNSEC with the understanding that it would be distributed to these candidates.

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