When Attorney General Ken Paxton was impeached in May, many Texans posed an obvious question: Why were some Republicans finally turning on him? It’s a good question, but flip it and it becomes more instructive. Paxton would seem to be easily replaceable. Disposable, even. Why aren’t more Republicans turning on him?
Paxton’s friends offer a clear (and clearly wrong) answer. They say he’s indispensable to the movement. Paxton is “one of the leading conservative voices not only in Texas, but also in the United States,” as his main lawyer in the impeachment trial, Tony Buzbee, put it in June. This sort of hyperbolic language has characterized defenses of Paxton since his early days as attorney general. In 2015, an agitprop shop affiliated with his backers, the short-lived website AgendaWise, registered the opinion that Paxton’s election to AG offered “hope for all Western governments.” He’s the last good man in Texas, McKinney’s own Winston Churchill—if you trade the brandy and cigars for afternoon margaritas and late-night fast food.
The political role of a GOP attorney general is to help the party win elections and help the right-wing movement advance its various causes. Paxton doesn’t do either well. His record in front of federal courts is weak, with only a few notable victories—all the more remarkable given that the high courts are more right-wing than they’ve been in living memory. The U.S. Court of Appeals for the Fifth Circuit, packed with partisan Texan jurists and Trump appointees, is downright thirsty for Paxton’s best efforts, but he’s shooting air balls.
The few big cases his office has launched, including lawsuits against big tech giants on privacy grounds, have had to be farmed out to outside law firms because Paxton’s thinned-out staff can’t manage them. His office has fumbled slam-dunk sex trafficking and child-abuse cases, a priority of his voters who recently filled theaters to see Sound of Freedom. Electorally, he underperforms the rest of the ticket, having come within a few points of losing reelection in 2018. His constant scandals embarrass the rest of the party. He’s not good on TV or in front of a crowd and has few friends in the Legislature. He radiates a preternatural sort of anticharisma.
There are countless Republicans with law degrees and histories of electoral success waiting in the wings to follow in the footsteps of John Cornyn, Greg Abbott, and Ted Cruz as soldiers of the office of the attorney general. They’d likely be more successful than Paxton has been. But his strongest supporters don’t really care about his ability to do the job. His importance stems from the role he plays in the GOP civil war, which erupted two decades ago—back when Paxton first came to Austin—and has since grown in ferocity.
The Texas GOP has always been a coalition between more ideological and more pragmatic elements of the party, and there’s a kind of dualism that’s baked into the party at an institutional level. Right-leaning Texans in college can choose, for example, between the Texas Young Republicans (imagine guys who have favorite pairs of khakis) and the Young Conservatives of Texas (who plan mock migrant roundups).
Back when the GOP was conducting its Long March through the state’s institutions in the nineties, the two factions needed to present a unified front and continue attracting independent and conservative-Democrat voters. That need was obviated in 2002, when the Long March finally culminated. The patriotic wave that resulted from the 9/11 attacks, combined with sky-high approval ratings for our Texan president, helped win the GOP the state House, the last Democratic-controlled institution in Texas, for the first time since Reconstruction. In that wave, Warren Kenneth Paxton Jr. was elected to represent the rapidly growing city of McKinney, north of Dallas.
Republicans now could stop fighting the Democrats and start fighting one another. The new majority elected a Midland power broker named Tom Craddick as Speaker, but he quickly gained a reputation as a tyrant. Momentum began building for a coup. In 2008, Democrats—fueled by the Obama wave—won 74 of the House’s 150 seats. Republicans held a two-seat majority, but in the Texas House, the Speaker is elected by majority vote of the members of both parties. This allowed a small group of senior centrist Republicans to team up with enough Democrats to elect a different Republican, Joe Straus, as the new Speaker. (Paxton stayed loyal to Craddick.) Straus, a moderate, business-minded conservative from a genteel, old-money part of San Antonio, was a Republican in the tradition of the old Bush faction.
The war within the party now is an extension of an initial conflict about Straus’s rise to power. Without external threats, the party is stuck in a kind of arrested development. This is a common feature of internecine political conflict: small differences become big ones, and the longer the fighting goes on, the harder it is to reconcile, or to maintain perspective. In the run-up to the Russian revolution, the Bolsheviks and Mensheviks argued mainly about matters of, essentially, taste and civility. By the 1920s, the former were ruthlessly assassinating the latter.
The leadership change was experienced by the party’s strongly ideological base—movement conservatives and their backers, who wield outsized influence in the Republican primary and the party—as a betrayal. We just won the House—and now Democrats are helping to choose who runs it? But it took time, and a lot of money, to truly fire voters up about the issue.
Much of that money came from a Midland oilman named Tim Dunn. Dunn was a strong, ideological right-winger and an evangelical Christian who had helped Republicans beat back the Democratic wave and shore up control of the House in 2010. (Dunn was joined by other donors, and later his money was greatly supplemented by oilmen Dan and Farris Wilks, but he was, and is, the whale.) After the election, Straus invited Dunn to breakfast at the Capitol, hoping to establish some rapport and lines of communication. Dunn seemed uninterested for many reasons, but one in particular: Straus was the state’s first Jewish Speaker. Only Christians should be in leadership positions, Dunn told the Speaker. Straus settled in for a long siege.
Dunn and a few like-minded donors used a constellation of groups—Empower Texans, Texans for Fiscal Responsibility, and smaller organizations such as Texans for Vaccine Choice—to attack Straus and his supporters. In his corner, Straus had more-mainstream GOP backers, including the Associated Republicans of Texas and the political action committee Texans for Lawsuit Reform.
Dunn’s groups tried to build influence from school board elections to the governor’s race, but their central issue was electing a Speaker to replace Straus. They fought along parallel tracks. They lobbied lawmakers on individual pieces of legislation, warning that anyone who disagreed with them would face a lavishly funded primary challenger. They evaluated each legislator with a “scorecard,” assigning each one a numerical value more or less corresponding to their loyalty to Dunn.
The Dunn faction recruited and ran candidates in the Republican primary against Straus’s backers. Many of its politicians were unconventional. Some quoted Sun Tzu in campaign speeches, beseeching supporters to know their enemy (“collectivism,” not the Democrats). Some of its supporters started fights at polling places. The candidates had names like Damon Rambo and Bo French. (“If they could find some halfway normal people,” a friend who worked for a Straus-aligned group told me once, “we’d be screwed.”)
The Dunn faction’s efforts each election year led to a high-profile confrontation at the beginning of each session. Every time Straus ran for reelection as Speaker, in the first days of each new legislative session, the Dunn camp made sure someone ran against him. Which is how Ken Paxton first poked his head out of the back benches of the House and toward his present glory.
By 2011, Paxton had served in the House for eight years, and he had little to show except for what can be charitably described as meme laws. One of the most notable bills he passed, in 2005, required highway signs welcoming drivers to Texas to note that the state was home to George W. Bush. In 2007, he passed another landmark bill allowing the signs to come down after W. left office. Guys like Paxton are a dime a dozen in the House: perennial backbenchers. They often get bored and quit.
Instead, Paxton did something that would end his career in the House but put him in contention for two rapid promotions. He served as the Dunn faction’s candidate against Straus for Speaker in 2011. Paxton had no chance of winning and many reasons not to stand up. If he lost, he would have no influence at all in the House going forward. But Paxton knew a thing or two about furbishing relationships with businessmen who needed the use of his office. Dunn’s organizations had more money than they had friends, and they rewarded loyalty.
Paxton ran against Straus and was immolated, 132–15. The following year, however, Paxton ran for state Senate, with Dunn’s help, and he won. Five of the fourteen other members who voted for Paxton over Straus ended up in the Senate or other higher offices, often with the help of Dunn’s money.
Paxton served as senator for a single, unimpressive session. After that session, he declared he was running for attorney general in a three-way primary. Dunn and his constellation of groups spent millions helping Paxton as he faced candidates who were arguably more right-wing (Barry Smitherman, a former Railroad Commission member and author of If Jesus Were an Investment Banker) and more respectable (Dan Branch, a state representative who looked like a Bush cousin and had the politics to match). Smitherman passed around an opposition-research file laying out the case that would ultimately result in Paxton’s felony indictments for securities fraud. Paxton won anyway.
There are plenty of obvious reasons Republican groups might want a friendly attorney general. But there was also a specific problem facing Dunn’s groups, in 2014, that made it important to have one.
That problem was the Texas Ethics Commission. The TEC had held that the way one of Dunn’s groups was pressuring lawmakers constituted lobbying. The agency had little power to do anything beyond requiring that Dunn’s groups follow the disclosure rules involved in lobbying—in short, to say who was paying you, and how much, and to report how they spent money influencing lawmakers. The agency ordered Dunn’s most visible lieutenant, Michael Quinn Sullivan (often known by his initials, MQS, and sometimes known to his enemies as “Mucus”), to register as a lobbyist.
Dunn’s groups responded by making a hellacious ruckus, even though he could have paid Sullivan’s lobbying registration fee with pocket change, and even though the fines they were hit with were puny. (The TEC levied a penalty of $1,900 on the Texas Home School Coalition for filing an incorrect disclosure report.) When the TEC called Sullivan before it to testify, he refused. Meanwhile, his flagship website, which now goes by Texas Scorecard, hosted hundreds of jeremiads against the agency.
Dunn’s acolytes maintained that they were grassroots activists, not lobbyists, and that the TEC was violating their First Amendment rights. Conservative donors have sometimes argued that secrecy in political spending helps prevent retribution or their public “cancellation.” The real reason here, however, was that Dunn’s groups felt that secrecy was a strategic asset. An anonymous attack website would materialize months before a primary election, libeling a senator; mailers would appear in a small town. It was not clear to readers who, exactly, had funded the attacks and what their agenda might be. Dunn’s foot soldiers also benefited mightily from the perception around the Capitol that they were boogeymen, and they wanted to maintain their ability to go bump in the night.
When Paxton took office, he swept the TEC to its knees. In defiance of the attorney general’s office’s traditional responsibility to provide state agencies with legal defense, he refused to represent the TEC in any of its legal battles with Dunn’s groups, agreeing with the right-wing organizations that the TEC was violating the U.S. Constitution. That meant the TEC would have to hire its own lawyers, and it didn’t have the resources to do that. So the agency dropped further inquiries into Dunn’s political spending.
These days, you rarely hear about the TEC. (It’s still fighting with Sullivan about the lobbying requirement, and just last October, an appeals court sided with the agency.) Jim Clancy, a former TEC chair who was appointed by Rick Perry, wrote a few months after Paxton took office that the problem with the TEC was that compliance with ethics law in Texas was “wholly voluntary.”
In abandoning the TEC, Paxton was stretching the discretion he enjoyed as AG. The office is not obligated to defend laws it maintains are unconstitutional. The Legislature could have forced the attorney general to defend the TEC, but it did not do so; if doing a favor for your biggest donor were prima facie evidence of a quid pro quo, most of the Texas state government would be in jail. The fight hardly even registered as a scandal at the time: many of the twists and turns of the case wouldn’t have been reported at all except for the diligent work of a then-reporter with the San Antonio Express-News, David Rauf.
The TEC case was the most on-the-nose example of Paxton helping his friends, but he continued to do so throughout his time in office, sometimes with a little more deniability. In 2018, Dunn’s groups grew nervous about efforts by public school boards and employees to mobilize their members to vote. A state senator sympathetic to the Dunn faction solicited an opinion from the AG’s office to clarify what school districts could and couldn’t do without violating the law—and then a Dunn group cited the opinion in a mailer to teachers indicating that they might be guilty of “crimes that violate the Texas constitution” and asking for snitches.
Later in 2018, Dunn’s groups went for the kill shot against the TEC. A Houston lawyer affiliated with Dunn filed a lawsuit that would have effectively stripped the agency of its powers to operate. Paxton again declined to defend the agency, which had to ask for an emergency infusion of funding from the Legislature to hire outside counsel. The TEC is still facing multiple lawsuits from Sullivan that have yet to be resolved. Paxton still isn’t helping.
All the while, Dunn invested millions to keep Paxton in office. The attorney general’s scandals have become a feature for the oilman, not a bug: they make the AG so reliant on the billionaire’s favor that the thought of replacing Paxton is unthinkable. If you owe the bank a million dollars, as the saying goes, the bank owns you. If you owe the bank a billion dollars, you own the bank. Paxton is a big, failing, Burger King–loving debtor. And his supporters have a strong incentive to keep throwing good money after bad, even if it hurts the party.
If Paxton is canned by the Senate, his replacement is unlikely to be as dependent on the Dunn faction as Paxton is. If Abbott appoints state senator Bryan Hughes to serve as AG, to pick one example, conservatives will have a more effective and capable advocate to lead the office—arguably one more committed to right-wing causes and less vulnerable at the ballot box. The party itself would be better off. But Hughes does not have the kind of dependence on Dunn’s groups that Paxton does. He may share some of the same priorities, but he’s not the easy stamp of approval.
Dunn is rallying to Paxton’s defense. The AG hasn’t disclosed who is paying his defense lawyers—but you can take a good guess. It isn’t coming cheap. Dunn’s new group, Defend Texas Liberty, promised to launch primary challenges to House members who voted for impeachment and senators who vote to convict, and it recently gave $3 million to Lieutenant Governor Dan Patrick, the judge of the impeachment trial—$2 million of which is in the form of a loan that can be forgiven. Dunn’s current agitprop shop, Texas Scorecard, is covering the trial in furious detail. A consultant who often advises Dunn’s candidates even made a music video in support of Paxton.
In the years since the infighting began, Dunn’s faction has made some significant headway—a former acolyte now, for example, leads the state GOP—but also faced significant setbacks, partly because of its own accumulating scandals. It hired guys to secretly record lawmakers around Austin, and then Sullivan surreptitiously taped former House Speaker Dennis Bonnen in a private meeting, leading to Bonnen declining to seek reelection. Then, ironically, audio leaked of two prominent representatives of Dunn with Empower Texans making fun of Greg Abbott’s use of a wheelchair. The cohort lost the support of a few of the handful of friends it had at the Legislature: two of the House impeachment managers, Jeff Leach and Briscoe Cain, are former golden boys of the anti-Straus insurgency. But the Dunn machine rolls on.
One of the most pronounced features of the long civil war in the GOP is that, while it shapes so much of what the party is and does, it is rarely discussed head on by lawmakers. It is uncommon for folks in power to address the influence of Dunn and his friends directly, to either challenge or endorse them. The impeachment trial is one of the few events of the last fifteen years that has let lawmakers choose what they value most: loyalty to the party, to the state, or to a handful of prolific donors.