It’s not a crime if you’re not caught, as the old saying goes, but for some Texas politicians, it might not be a crime even then. For nearly three decades, running as a Republican has been the main requirement for winning general elections here; steering free of scandal has just been a nice-to-have option. Tom DeLay could tell you all about it. In 2001, the congressman from Sugar Land was admonished by the U.S. House Committee on Ethics for three infractions of rules against having trips paid for by lobbyists or foreign agents. In 2004, after he’d become the House majority leader, he landed in trouble again for a trio of scandals that included offering a bribe. Still, DeLay coasted to reelection in 2002 and 2004, before he finally took the matters out of voters’ hands and resigned from his seat in 2006 amid a scandal that would lead to his eventual conviction on campaign money-laundering charges (which he later appealed and got overturned).
More recently, agriculture commissioner Sid Miller used taxpayer dollars in 2016 to get a pain-killing “Jesus Shot” up in Oklahoma, claimed his trip was to “work on behalf of the agriculture industry in the Lone Star State,” and then got fiscally conservative, anti–government excess Texans to reelect him in 2018—and nominate him again this year over a serious primary opponent. Miller is expected to coast to victory on November 8.
But the prime example of a Teflon politician, post-DeLay, is the state’s current top law enforcement official. As he runs for a third term, Attorney General Ken Paxton has been promising to fight the (alleged) crime wave caused by President Biden and the Democrats, while racking up more charges than a Highland Park teenager with mom and dad’s credit card. In 2015, Paxton was indicted on two felony securities-fraud charges, which have yet to go to trial seven years later. (Pro tip: don’t try this if you’re not politically connected.) Nevertheless, he won reelection in 2018 by 3.6 percentage points. In 2020, the FBI launched an investigation into alleged improprieties called out by Paxton’s own staffers, who accused him of abusing his office, accepting a bribe, and conducting an extramarital affair with a woman for whom he tried to get a job with a real estate developer at the center of other allegations. Yet Paxton cruised to victory in this year’s Republican primary, over three qualified opponents, and looks likely to prevail in November. It’s enough to make one wonder: is there any kind of misdeed that would cost him an election?
Paxton has denied the criminal allegations against him, calling them politically motivated, and voters seem to have agreed—or, at least, they’ve given him a pass. Recent polls show him leading civil rights attorney Rochelle Garza, the Democratic nominee, by two to eight points. That’s a tighter race than the other statewide Republicans face. But it also suggests that in Texas, running as a Democrat might be the one charge a statewide candidate can’t beat.
Garza has emphasized Paxton’s alleged criminality in her pitch to Texans. She told Texas Monthly that she believes there are enough voters who would punish Paxton for his alleged improprieties to send her to office—if they’re informed about those allegations. “His base unfortunately does not care about his criminality,” she said, but “this is a source of concern for a lot of Texans and would be a source of concern for independent voters, who don’t know about his criminality. It’s on my campaign to make sure we are communicating with those independent voters.” That won’t be easy: April polling from James Henson of the Texas Politics Project at the University of Texas finds that only 18 percent of registered voters, and 12 percent of Republican ones, say they’ve heard “a lot” about the Paxton allegations. If a scandal falls in the woods and no one hears it, maybe it isn’t a scandal.
Democrats have cherished the hope that courts, not voters, will hold Paxton accountable by convicting him on those securities-fraud charges that four different judges have allowed him to duck for seven years. If Paxton were convicted, he would be barred from seeking office in Texas unless he received a pardon. For that cruel twist of the carceral state, Ken Paxton can blame Ken Paxton. State law is unclear on whether felons can seek office after serving their sentences and having their voting rights restored, said Sam Taylor, director of communications for the Texas Secretary of State’s office, which oversees elections. But in 2019, the attorney of Webb County, home to Laredo, sought guidance from Paxton on the issue, and the attorney general said that former felons would not be eligible to run.
Still, Democrats shouldn’t get their hopes up. Paxton’s indictments have lingered in courts for the lifetime of a second grader, and he won’t be convicted before November. But suppose Paxton did commit an impropriety that generated so much stink that voters couldn’t turn away from it. Is there anything that would cost him victory?
Texas Monthly posed this question to Paxton supporters attending his speech at the Conservative Political Action Conference in Dallas in August, but none agreed to the premise that Paxton would ever commit a crime. When my colleague Michael Hardy asked Jeanney Ramsey, of Prosper, what Paxton could do to turn her against him, her reply was typical: “The government wants to discredit anyone trying to improve the country and uphold the Constitution.” When I later reached Abraham George, the GOP chairman in Paxton’s home turf of Collin County, he replied that he was “not qualified” to answer the question, adding, “Last time I checked, this is America and we are innocent until proven guilty.” Plus, George said, “He is one of the most conservative attorney generals. We need him in office, fighting for the people of Texas.”
Since Republicans didn’t want to play hypotheticals with us, Texas Monthly turned to political science research, and to history, to get a sense of what types of scandals tend to stick to politicians. Conveniently enough, one of the largest databases of U.S. political scandals is run by political scientist Scott Basinger at the University of Houston.
Tracking five decades of political scandals involving more than five hundred politicians, Basinger has delineated three major phyla of impropriety. First, there are political offenses—leaks of information, election fraud, and the like—which he’s found have virtually no effect on electoral results. Second, there are financial scandals, one of which—using your position to acquire wealth—historically has been punished by voters. Third, there are sexual scandals, which include extramarital affairs and harassment, and which Basinger says typically shift electoral margins more than any other type. (The topic brings to mind the the famous litmus test of then-two-term Democratic governor of Louisiana Edwin Edwards, who quipped on the campaign trail in 1983, as his opponent attacked him for various alleged abuses of office, that “the only way I can lose this election is if I’m caught in bed with either a dead girl or a live boy.”)
But even sex scandals don’t matter as much as they used to. Basinger has found that before 2012, incumbents beset by any type of scandal took, on average, a three– to five–percentage point hit in their next elections. Post-2012, however, the average damage has gone down to just one percent. What’s happened over the decade to cause such a change? Politics has become more polarized and tribal, Basinger said, and negative partisanship—voting that is motivated by animus toward one party—has risen. Some Republican voters might believe Paxton has committed some crimes they consider minor, in other words, but Garza is a sinner in the hands of an angry GOP.
These days, scandal-plagued candidates who can clear their primaries and make it to a general election are generally safe, Basinger has found. And while some incumbents lose in primaries—see Congressman Madison Cawthorn of North Carolina—most aren’t photographed in lingerie or targeted for defeat by their own party’s apparatus the way Cawthorn was. Based on his data, Basinger said he would give the following guidance if he were an adviser to a scandal-ridden candidate in 2022: “Don’t resign.”
Other recent research suggests that even if some voters break away from a candidate, one group tends to stand fast: donors. A 2018 study found that while voters might be driven away from politicians beset by impropriety, campaign bankrollers since the mid-1990s have not followed suit. Crime might not pay, but it doesn’t cost much either. Paxton has not been a fund-raising juggernaut by Texas Republican standards, but after his March GOP primary, some donors who supported his challengers have come back to him. Take, for example, Dallas billionaire Robert Rowling, who is aligned with the influential interest group Texans for Lawsuit Reform. He put $850,000 behind Paxton challenger Eva Guzman, a former Texas Supreme Court justice. When she failed to qualify for a May 2022 runoff, Rowling gave Paxton $50,000 to help Paxton fend off land commissioner George P. Bush.
I asked Basinger and two other Texas political scientists if they could create an Edwin Edwards test for Republican statewide candidates in Texas. One, Henson, declined to answer. Basinger and Mark P. Jones, a political scientist at Rice University, both agreed that it would probably take a moral scandal—such as a particularly salacious case of infidelity—or a crime with a direct victim, such as assault, rape, or, say, shooting someone on Fifth Avenue. Jones said the crime would have to be something that’s difficult to “deflect as politically motivated” and easier to parse than the whistleblower complaint from Paxton’s aides, which involves a complex pay-for-protection-from-prosecution scheme.
But neither political scientist was certain that even a crime with a clear victim would sink Paxton. They noted that the attorney general has a rare sort of incumbency advantage: he can set the news cycle and “flood the zone” to distract voters. And Paxton knows how to do it: a month after the whistleblower complaint surfaced, for example, he filed a lawsuit challenging the 2020 election results in Pennsylvania, creating a new set of headlines about him. “If there was something that we might think of as bad enough that he would surely lose,” Basinger said, “as long as there were a couple weeks before the election, I think there’s also something ‘good enough’ for his base that he could do that would probably distract people from it.”