Toomey or Not Toomey, That is the Question
“The wheels of justice grind slowly but exceedingly fine” is a venerable saying about the law. I don’t know about the “exceedingly fine” part, but they definitely have ground slowly in the case of the Democratic legislators who filed suit against the Texas Association of Business, TAB’s Bill Hammond and Jack Campbell, and lobbyist Mike Toomey, and some thirty corporate donors, for what the lawmakers claim are violations of state elections laws in the 2002 general election. The Statesman reported Friday that Judge Joe Hart threw out the lawmakers claims against the donors but is allowing the lawsuit against the TAB defendants and Toomey to go to trial.
The courts have wrestled with the conflict between the efforts of national and state lawmakers to regulate corporate contributions and the U.S. Supreme Court’s ruling that corporations have the same right of free speech as individual and groups and therefore may make contributions to further their views. However, the courts have drawn the line at the use of corporate money for “express advocacy,” which means urging voters to favor or oppose a particular candidate for office. The courts particularly look for the use of “magic words,” such as “vote for” and “vote against.” Regarding the mailers that were sent to voters in 2002, Judge Hart wrote:
“I must assume that, in line with current Fifth Circuit and Supreme Court law, the magic words test must be applied to the ads in question. I find none of the magic words such as “vote for” or “vote against” in the ads in question. Therefore, I grant the summary judgment motions filed by the corporate defendants.”
This ruling guts the legislators’ prospects. Even though TAB and the individual defendants are still on the hook for damages, the corporations were the deep-pockets defendants.
In refusing to grant summary judgment for TAB and Toomey, Judge Hart wrote, “Expenditures by such organizations [political committees] ‘are…by definition, campaign related,’ citing Buckley v. Valeo, the leading U.S. Supreme Court case on campaign finance issues. “I find that there is a fact question as to whether or not the TAB defendants and Toomey constitute a committee.”
I admit to being a bit puzzled by this statement. Campaign finance law is a niche practice that I know next to nothing about, and I am not much more enlightened after looking at the statute on the Ethics Commission Web site. But I had the impression that an organization had to do certain things to be a political committee–register with the Ethics Commission, file reports, name a treasurer, and so on. I didn’t think that there was any ambiguity about it. Obviously, that must not be the case, since Judge Hart believes that it is an issue that must be resolved by the finder of fact (either the jury or, if the case is tried before the court, the trial judge). I’ll update this when I have more information.
In my view, the entire lawsuit has been a dubious undertaking from the beginning. Leaving aside the legal issues for the moment, the political reality is that TAB’s efforts were not the decisive event in the election, despite their self-promotion to the contrary. The die was cast in 2001, when neither the House nor the Senate passed a redistricting bill. Under the state constitution, the responsibility for drawing the House and Senate maps passed to the Legislative Redistricting Board, which consisted of the Lieutenant Governor (Bill Ratliff), the speaker and only Democrat on the panel (Pete Laney), the attorney general (John Cornyn), the comptroller (Carole Rylander), and the Land Commissioner (David Dewhurst). Laney and Ratliff were outvoted by Cornyn, Rylander, and Dewhurst. The board drew the districts to elect large Republican majorities in both Houses, which turned out to be 88-62 in the House and 19-12 in the Senate. After the election, TAB tried–unwisely, in retrospect–to claim credit for the outcome. The $1.7 million dollars that TAB raised from corporate donors didn’t hurt the cause, but the LRB’s maps predetermined the outcome of most races.