At first, it could be written off as an old-fashioned mudsling: Sissy Farenthold was launching her 1974 gubernatorial campaign with a $2.5-million suit against Governor Dolph Briscoe and some of his associates for alleged violations of the new Texas Election Code.
The whole thing seemed obscure, idealistic, merely “technical.” But even after her expected defeat, Farenthold refused to drop her complaint. The following fall, her young attorneys, Terry O’Rourke and Ray Needham, began to turn up some intriguing pieces of information. One of the most startling was that a Dallas corporate executive had given nearly $10,000 to the Briscoe campaign in the names of 100 out-of-state employees, many of whom later claimed to have no knowledge of the $100 contributions listed in their names and no interest in the campaign. It was also discovered that the Governor himself had received a $15,000 donation from a controversial South Texas rancher/banker, failed to report it, and stored the cash in his Uvalde vault for more than two years. It began to appear that there might be something to the Farenthold suit after all.
Then early this year, only a month before the March trial date, Farenthold, settled out of court for a sum believed to be in excess of $100,000. Under the terms of the settlement, she and her attorneys agreed not to talk about what they discovered or the amount they received. Bill Brice, attorney for the Dolph Briscoe Dinner Committee, issued a 4-page press release stating that his side had agreed to settle for purely economic reasons; i.e., it was cheaper to pay off than to attempt to win. Although Attorney General John Hill is legally responsible for enforcing the Election Code on behalf of the state, regardless of Farenthold’s own participation in any suit, once she settled he quietly let the matter drop.
The case, so it seemed, was closed. But nothing like the full story had been told. Another look at the financing of Governor Briscoe’s campaigns reveals evidence—though not conclusive proof—of wrongdoing which is more than “technical” in its significance. It also suggests that Hill has apparently refused to follow up the supporting evidence.
Among the more serious of the suppressed allegations is that one of the state’s largest corporations—Texas Instruments, Inc.—or its employees may have contributed thousands of dollars in illegal corporate funds to the Briscoe coffers. If the allegations are true, the corporation could owe the state and Briscoe’s former opponents thousands of dollars in civil and criminal penalties, while the officers and directors of the corporation could be held liable for further fines and prison terms of up to five years. Moreover, if Briscoe and his campaign associates should ever be successfully prosecuted for the “technical” violations Farenthold alleged, they could owe the state and his opponents additional millions of dollars in damages.
These penalties would be assessed under Chapter 14 of the Texas Election Code. For many years it has explicitly prohibited direct and indirect corporate contributions to political campaigns. But until the 1971 Sharpstown Scandal that catapulted both Farenthold and Briscoe into the limelight, Chapter 14 was full of loopholes that seriously weakened this prohibition. When the legislators got the Reform Spirit, they removed some of the loopholes, tightening up requirements for campaign finance reporting and providing criminal penalties for corporate contributions and unlawful gifts from other sources. They gave opposing candidates the right to claim damages equal to twice the amount of all illegal donations and campaign expenditures. And they added a new civil remedy for the Attorney General to pursue on behalf of the state: a penalty triple the amount of any unreported or otherwise unlawful gift or disbursement.
But the legislators also made even more crucial changes—the ones which are now being labeled as “technical.” Back in the good old days, a politician—particularly an incumbent—would usually tell potential supporters they were responsible for coming up with a certain amount of money if, as LBJ used to say, “you want to come on board.” Until the politician actually announced his candidacy, none of these contributions had to be (or were) reported. Even after the campaign officially began, any group of people could get together and give anonymously as a “political committee” under a name like “Citizens for a Free Election.” Nobody was required to keep track of the real source of such money. But the intent of the crucial Code revisions was to preclude such schemes.
Under the new law, an aspirant can remain unannounced—can say “I am not a candidate” until he is blue in the face—but if he has “knowingly or willingly taken affirmative action for the purposes of seeking nomination,” the law says he is a candidate. And “any group of persons formed to collect contributions or make expenditures in support for or in opposition to a candidate” must report the names and addresses of every giver along with the amounts and dates of all contributions and expenditures. Finally, and of great importance for the Farenthold suit, both “candidates” and “political committees” are required—not merely permitted—to file the name of a campaign manager before accepting any contributions or making any expenditures. That campaign manager is legally responsible for keeping track of where the money comes from and where it goes, and must swear that his required report of these transactions is accurate and truthful.
All these revisions were signed into law by Governor Dolph Briscoe, and took effect on June 14, 1973. The intent, of course, was to rid state elections of scandal, but parts of the updated Code were vague and poorly written. There was nothing, for instance, defining the “affirmative action” that qualifies a person as a “candidate.” And, strictly speaking, it was possible to construe the law in such a way as to argue that there is no civil or criminal penalty for accepting an unlawful contribution, since the statute speaks only of penalties for a person who “makes” an illegal gift, be he a contributor or a candidate.* In fact, it was on these last two points that the Dolph Briscoe Dinner Committee defense team based much of their case.
(*The relevant portion of the law says: “Any candidate, campaign manager, assistant campaign manager, or other person, who makes an unlawful campaign contribution or expenditure in violation of this chapter shall be fined not less than one hundred dollars nor more than five thousand dollars, or be imprisoned in the penitentiary not less than one nor more than five years, or be both so fined and imprisoned.” It is not clear how the drafters of the law thought a candidate could “make” those contributions, though they clearly intended to make him liable for failure to handle them in the required manner.)
When Farenthold settled her suit, she left these and other matters unresolved. By her choice the courts were deprived of the chance to make a definitive interpretation of the Election Code. Many of her supporters privately wondered whether her decision to drop the case in exchange for a partial settlement—regardless of the dollar amount—was really in the public interest. In all her years as a legislator and a national political figure, Farenthold had never been reticent about claiming to uphold the public interest, so her decision to take the money and run seemed especially out of character.
Shouldn’t she have pressed the case all the way to the Texas Supreme Court if necessary? Did her liberal backers fail to cover the high costs of the suit? Was she pressured into a settlement by her attorneys? Farenthold resolutely refuses to comment or to answer. The true explanation for her surprising decision to bail out remains the central mystery of the whole affair.
Nevertheless, the suit was a landmark case because it exposed so much Texas electioneering to the light of day. The voluminous documents and depositions her attorneys left on the public record provide a rare, extensively detailed look at the mechanics of campaign financing and its associated ethical and legal problems.
The story began, appropriately enough, with a meeting held in the Governor’s office on August 29, 1973. The Governor was there with sixteen associates, among them Secretary of State Mark White, Texas’ chief election officer; Calvin Guest, the chairman of the state Democratic Party executive committee; press secretary Robert Hardesty; former Congressman Joe Kilgore; advertising executive Liener Temerlin; and Jess Hay, whose Lomas & Nettleton Financial Corporation is one of the largest mortgage banking firms in the country. The official purpose of this gathering, according to its now public agenda, was to plan a fund-raising dinner to be held in Austin on October 30. The dinner was to be called “THE FACE OF TEXAS: An Appreciation Night Honoring GOVERNOR DOLPH BRISCOE.” Its “primary goal,” according to the agenda, was to “raise $1,250,000 in campaign funds: $400,000 to retire the remaining deficit from the 1972 campaign; and $850,000 to launch the 1974 campaign to reelect Governor Dolph Briscoe.” The primary device for doing this: “solicitation of contributions through a statewide finance committee.” The $25 admission tickets themselves were described as merely a “secondary fundraising device.” It was in these respects—the scope of the fundraising activities and the apparent intention to use the proceeds for reelection—that the October 30 function as outlined on the agenda was to differ from three previous Briscoe fundraisers held early in 1973, all of which had collected money but not (and this was the crucial legal point) expressly for an upcoming campaign. Although Briscoe and his associates did not designate a campaign manager, the agenda lists Jess Hay and Joe Kilgore as the “co-chairmen” of the “Finance Committee,” and includes such prominent Texans as Dallas-based developer Trammell Crow and former Brown & Root boss Herb Friendsley as members of the “executive committee” of the Finance Committee. Attached to the agenda is a list of the names and addresses of 117 individuals, each of whom was expected to come up with $10,000 toward the $1,250,000 goal. That list of 117 reads like an abridged Who’s Who of Texas power: George Brown; Lloyd Bentsen, Sr.; James Elkins, Jr.; A. G. McNeese, Jr.; Walter Mischer; Tom Frost; Gerald Hines; John Mecom, Jr.; Robert Shelton; Gus Wortham; Cloyce Box; J. Fred Bucy; etc.
Close readers of the Texas Election Code might think that the Governor’s participation in this meeting made him a “candidate” and that the other attendees constituted a “political committee.” But according to Briscoe’s sworn deposition, he was “not actively involved,” he was “only sitting in,” although he does admit asking Kilgore and Hay to head the Finance Committee. What’s more, says the Governor, the agenda “might not have been followed exactly.” The real purpose of the money-raising, he testified, was not to launch his reelection campaign; rather, the money was “to pay—to be applied against previous campaign deficits.”
On the other hand, as the Governor said later in his deposition, Hay and Kilgore “do not need to be told what to do, or how to do it.” Hay, for one, had a rather different sense of the August 29 meeting. “There was no formal modification [of the agenda],” Hay, who authored the document, said in his deposition. “The discussion was basically one between—primarily me and the Governor. I was coming on very strong for an early announcement of his intention to seek reelection. He was just as strongly reasserting his previously stated position that he had not yet made that decision. The matter was not formally amended.” And while the matter was not formally adopted either, it was, said Hay, “left with that uncertainty, and with the additional information that there was no reasonable expectation of [raising] more than seven hundred and fifty thousand [dollars] and with the knowledge that the accumulated deficits from the ’68 and ’72 campaigns exceeded $800,000.”
Of course, it should be pointed out that the agenda does not mention the ’68 campaign. These campaign “deficits” were in fact owed to the multimillionaire Governor himself, since the original money had been borrowed from Briscoe’s Uvalde Wool and Mohair Company. Furthermore, the law does not recognize “deficits,” only “debts” and “loans.” But these points lead to a complex discussion verging on the “technical” and the semantic. Actions tell the story better. And many actions of the Finance Committee subsequent to the August 29 meeting in the Governor’s office suggest that the primary goal was as stated on the agenda: raising money for reelection—not just for retirement of previous “deficits.”
In fact, Hay’s notations on his copy of the agenda show that during the meeting the participants went through the list of 117 name-by-name, with Hay mapping the strategy beneath the categories “Suggested Action by the Governor” and “To be Contacted By.” After the meeting, Hay, Kilgore, Guest, et al., began to solicit the various $10,000 contributions. These requests, according to Hay, “typically were oral; obviously you don’t write a guy and ask him to do it.” But Hay did write some of the “guys” (he also wrote a “gal” or two). These letters, some of which were produced as part of Hay’s deposition, contain various wordings: one type speaks of raising money to retire the Governor’s campaign “deficits”; another type speaks of raising money for re-election; another type speaks only of raising money. A great percentage of the target money was requested and/or received before October 19, 1973, the day the friends of Dolph Briscoe finally got around to naming themselves a campaign manager to be legally and officially responsible for their fundraising activities.
That day began with a Kilgore press conference in the office of Briscoe’s press secretary, Robert Hardesty. In their depositions, the Governor’s men—specifically Kilgore and Secretary of State Mark White—seem to have difficulty recalling exactly what transpired at the conference and during the waning hours of October 19. However, Bo Byers, the veteran Capitol bureau chief of The Houston Chronicle, was in the thick of it all.
“Kilgore had the press conference to let us know how well the fundraising was going, and what a notable dinner it was going to be because of the crowd and because of the multi-media presentation they were going to have,” Byers recalls. “It was a kind of tout job, and very informal. We asked him [Kilgore] how much he had raised, and he said they had raised about $350,000, and identified Jess Hay as the man heading up the effort. He said they were shooting at $1,000,000. He was asked how far it would carry them, and he said that he hoped it would carry through the general election—there was no hesitation on his part about that. Now in effect that kind of constituted an announcement for reelection, so I went down to the Secretary of State’s office shortly before noon to check if they had filed the name of a campaign manager, and found out that they hadn’t.
“Around 2 p.m., I called Mark White and asked him if Briscoe had designated a campaign manager for the dinner. He said that he [Briscoe] had not, but that he [White] didn’t think Briscoe needed to unless he became a formal candidate, that he didn’t have to designate a campaign manager to pay off old campaign debts. Then, I said, ‘But Kilgore said the money was for the next campaign.’ He [White] said, ‘Well, maybe he will designate one pretty soon.’ I said, ‘You mean on Monday after he reads my story in the Chronicle,’ and he chuckled and said, ‘Maybe before that.’ About 45 minutes later, the phone rang, and it was Joe Kilgore. He said, ‘Bo, I just happened to be talking to Mark White… I checked and they had a designated campaign manager [Jess Hay] up there [at the Secretary of State’s office] by 4 p.m. that afternoon.
“There was a considerable shifting of positions over the next few days about what the money was for. Later, I asked Kilgore about the conflict between his statements and White’s, and he said, ‘Bo, if they ever ask me about that, I’m gonna have to say I was wrong.’ The thing was compounded a few days later by Briscoe saying that the money was still to pay off old campaign debts. At first, he just referred to the 1972 debt, which he placed at about $400,000-500,000—whatever was enough to cover what they had raised so far. That appeared to me—and this is just speculation now—to be their out on what may have been a violation of the law. Regardless of what’s said in the depositions, I think it was clear that Briscoe was going to run.”
These shifts of position about whether the money was intended to retire “deficits” or to finance reelection plainly had some important legal implications. The October 30 appreciation dinner turned out to be the largest fundraising affair in Texas history, with over 9000 people in attendance and roughly $500,000 in net proceeds. If Briscoe had indeed accepted that money without first naming a campaign manager, then his opponents could be entitled to as much as $1 million apiece; and more important to taxpayers, the state could be entitled to $1.5 million.* What’s more, Briscoe, his finance men, and his contributors might themselves be subject to prison terms and fines.
(*This is the actual breakdown of the $2.5 million figure in the Farenthold suit: double damages for Farenthold, the opponent; triple damages for the state for each illegal donation or disbursement.)
Given all this, a host of questions arises: Why didn’t the Governor, who after all had signed the new law only two months before, simply designate a campaign manager from the beginning? Why all the strange vacillation to arrive at the seemingly inevitable announcement of Briscoe’s candidacy? Why even risk the costs and embarrassments of a lawsuit? One answer, say some observers, may be that Briscoe and his men were either incompetent or ignorant of the law. Others charge that Briscoe and his backers never intended to report the proceeds since they did not report the proceeds of the previous 1973 fundraisers. Still others, including many of the defendants, blame the ambiguities of the Election Code itself, and point out that the Dinner Committee did in fact file and is continuing to file voluminous reports with the Secretary of State, regardless of its tardiness in naming a campaign manager.
Whatever the true reasons, the Governor and his friends soon found themselves saddled with the Farenthold suit. Their political embarrassment was reduced by the fact that presiding Judge Herman Jones of Austin slapped a “gag” rule on participants in the case which remained in effect until Briscoe had won the Democratic primary. But once the gag was lifted, previously unreported information began to be heard.
The incident most directly involving the Governor himself concerned an unreported 1972 campaign contribution of $15,000 in cash from South Texas banker/rancher Clinton Manges. After apparently dodging requests for his deposition, the Governor testified to keeping the money in his Uvalde vault for over two years, then made twenty changes in his sworn statement, some of which substantially altered his original testimony. The problem, according to the Governor, was that $15,000 was just too much to accept from any one man, particularly one he did not know very well. But somehow, Briscoe simply could not get Manges to take the money back.
Apart from the Manges money, most of the other items that surfaced during the Farenthold suit concerned the 1974 campaign and the Dolph Briscoe Dinner Committee. The most publicized matter was a $10,000 cash contribution from Cloyce Box, boss of the Dallas-based OKC Corporation. This gift appeared with a list of 100 names, each one indicated as giving $100. All the names were listed with first and middle initials instead of full spellings, and all had the same address—the Dallas post office box of the OKC Corporation. As it turned out, every single OKC employee on the list had been based out of state, and many of them claimed to have no knowledge of their contributions and no interest in Dolph Briscoe. Some said they had been asked to reimburse Box for donations they never approved and could not afford. “I paid Mr. Box back,” Richard L. McGoon, a Woodward, Oklahoma, truckdriver told The Dallas Times Herald. “I’m done. I’m through with it. I’ve had my fill of it. I made him out a check for $100, and they said they probably would cash it. I need to work. I work for the man and he owns Oklahoma Cement as far as I know. So out of the generosity of my heart I gave a contribution to Dolph Briscoe. I’ll tell you, I didn’t… contribute to any Oklahoma candidates.”
Jess Hay, campaign manager for the Dinner Committee, began filing supplemental reports on this Box contribution less than a week after the Farenthold attorneys took his lengthy deposition on the matter. The first of these supplemental reports, dated October 29, 1974, states that the Dinner Committee had learned “for the first time” that Mr. Box advanced the $10,000 out of his personal funds. A December 6, 1974, report based on “certain additional information” supplied by Box and OKC vice-president D. James Fajack, the man who actually supervised the solicitations, gives a twelve-point analysis of the status of the contribution and the named contributors. According to this later report, four persons stated they never agreed to contribute and have refused to reimburse Box; another person had been “terminated” before the solicitations began; and thirteen others, all of whom subsequently left OKC, have not responded to correspondence asking for their reimbursements. Meanwhile, six others who said they did not originally agree to contribute consented to reimburse Mr. Box anyway; and seven people “believed to have been among the original contributors whose names should have been included” agreed to reimburse Mr. Box as did 81 people whose names in fact appeared on the original list of donors submitted to the Committee. The reason for all these inaccuracies: “an inadvertent mistake.” Mr. Hays plans to file still further reports on this and other matters soon.
One potentially explosive item that did not surface during the Farenthold suit, however, concerns allegations of corporate contributions by Texas Instruments, Inc., one of the best-known companies in the state. Attention began to focus on Texas Instruments after the Box controversy prompted a review of the Dinner Committee’s official reports with an eye toward identifying out-of-state contributors. A check showed that 30 of the 38 out-of-state contributions were accepted on November 19, 1973, and were in amounts of $100 or less. One came from Japan and another from England—reflecting, perhaps, worldwide interest in the outcome of the Texas gubernatorial race. But most were clustered in four main areas: Boston, New York-New Jersey, Oklahoma, and Southern California. Each area has a Texas Instruments branch, and each of the nonresident contributors was (or had been) a Texas Instruments employee. They gave widely differing accounts of how they came to contribute to the man from Uvalde.
“We were told to give,” said Robert W. Ferraro, a former regional manager for calculator sales at Texas Instruments’ Waltham, Massachusetts, office. “I don’t know why, living in Massachusetts, I’d have much interest in the election otherwise. What I understood was that one of the big wheels had made a commitment to raise so much money for Dolph Briscoe, and it was just delegated on down. Quite frankly, there was a little bit of pressure put on. It was a little deal where every office was expected to come through—each office had a quota. I’m sure it was that way all over the country. I understand that the guys who didn’t make their quotas ended up in the dog house.”
Several other sources supported Ferraro’s version in whole or in part. But more often than not, there was considerable reluctance to discuss the matter at all. Still other Texas Instruments employees listed as contributors anxiously asserted that their gifts were strictly voluntary, and said that they did not recall even being asked to contribute by anyone. George Campot, an employee living in Arlington, Virginia, firmly stated that his $100 had no connection with his job. “I was interested in the campaign because I’m gonna live in Texas,” he said. He also stated that he was not contacted by Texas Instruments people.
Arthur Molina of Los Angeles was one of the few contacts to give what later turned out to be T.I.’s official version—at least in part. Asked if he was coerced into giving by other company employees, Molina replied, “No, no, they asked whoever wanted to donate. My understanding was that he [Briscoe] was good for the company. They told us, ‘If you want to donate, here is the address.’” Molina could not recall exactly who asked him or if the soliciting was done on company time, but he insisted that there was no system of reimbursing people for their contributions.
However, Bill Brice, attorney for the Dolph Briscoe Dinner Committee, acknowledged that the Farenthold team had gathered some testimony indicating that systematic reimbursements took place through expense accounts. Although the Farenthold lawyers refused to discuss this testimony, a few informed sources did give varying degrees of support to these allegations. These charges could have serious consequences for both the corporation and for anyone who might have orchestrated such an alleged system. Though legal experts differ on the matter, the allegations about pressure, if confirmed, could lead to stiff fines and prison terms. Texas Instruments and its officers deny these charges, though they admit the possibility that isolated individuals or groups of individuals may have tried to sneak reimbursements onto their expense accounts.
What about the matter of organized corporate contributions by Texas Instruments? To that allegation the company’s, response is firm: “I can tell you flat out that it’s not so, and anyone who says so is a liar,” Texas Instruments vice-president and director J. Fred Bucy said in a telephone interview. “When they [the Dinner Committee] tried to get me to donate to the money settlement, I told them, ‘No, T.I. hasn’t done anything.’” In a later interview Bucy added: “I got a call from Jess Hay. This was about three weeks before the settlement in late January. He said that Sissy’s lawyers had these allegations about T.I., and I told them that this was all news to me. I hung up. Then I called him back and told him that I thought it was blackmail.”
Bucy’s name appeared on the original Dinner Committee $10,000-apiece solicitation list attached to the agenda of the August 29, 1973, meeting in the Governor’s office. Several employees of Texas Instruments described him as being in charge of “telling” or “asking” them to contribute. Early in the inquiry, I asked Brice in general terms about corporate contributions, but he made no mention of Texas Instruments. Later, however, when I asked detailed questions, he confirmed the Farenthold allegations and furnished the original solicitation letters sent to the Dinner Committee by Bucy. These letters show why so many out-of-state Texas Instruments employees were listed as contributing on the same day: the money was first collected by a “task force” of aides, and then delivered by Bucy in five batches. The original checks are mostly personal checks. (One person sold four shares of T.I. stock for his contribution.) The contributors often misspelled the Governor’s name. But, surprisingly, even the names of those employees who said they gave to Briscoe without being asked to contribute appear on the lists attached to these letters. And the members of the task force, like the great majority of the 200 or so people solicited, were employees of Texas Instruments.
Bucy himself explained the fundraising activities thusly: “We use a lot of jargon around this place,” he said. “A task force usually sounds like a tightly organized thing—destroyers chasing Japs over the horizon. But it was not that way at all… I knew that it was going to be difficult to raise the money because of the Watergate environment and my limited personal time, so I decided I’d ask five people to help. I made it clear that it was voluntary, and had nothing to do with T.I. at all. There were no assigned territories or areas, and there was absolutely no coercion. No quotas were set: they [the five task force members] agreed to try to raise about $2500 each—but that was it. Since all the individuals were senior managers in T.I., I gave them no instructions on soliciting contributions. The way we run this company is so straight-arrow it would have been insulting. We have a code of ethics that’s published. It would have been redundant. So I left it up to each individual as to how he would go about it. As this money came in, I passed it on to Jess Hay on a periodic basis.” This operation proved to be successful; Bucy was able to exceed his $ 10,000 commitment by $661.72.
When asked if this solicitation effort was conducted on company time, Bucy replied, “Each one of these calls took about ten minutes. The fact that most of these people are T.I.-ers is no great shakes. We’re absolutely immersed in our work. We live with our people sixteen hours a day. We’re a community to ourselves. So naturally, you’d ask the people that you know.” He went on to add: “I absolutely deny any wrongdoing, and I have no firsthand knowledge of [the Farenthold] allegations.”
Hay, for his part, says he “assumed” that Bucy would raise his $10,000 from within the corporation, but denies any knowledge—other than the allegations raised by Farenthold—of whether corporate funds were used. As for approaching Bucy about the settlement money, Hay’s version is that he did make initial calls to Bucy and others, but later made it “a policy” not to gather settlement funds from people about whom allegations had been raised. Brice says that he has asked Texas Instruments’ lawyers for a report on corporate contributing, but that he has yet to receive it; he adds that he does expect to, however. Meanwhile, other Texas Instruments officials say they, too, are digging into the allegations.
Is there anything to the charges? Obviously, statements have different interpretations: what one person might call “pressure,” another might consider “a request.” And some present and former employees may conceivably bear grudges against their superiors or their associates. But even at best, the statements reveal a profound confusion about what can and cannot be done legally in the way of political contributions. It is permissible for corporation employees to solicit other corporation employees. What is not permissible is actual pressure, recrimination, or the use of corporate funds. Whether or not Texas Instruments or some of its employees are guilty of such activity can be determined only by a full official investigation.
The authority responsible for conducting such investigations is Attorney General John Hill, a man whose campaign promises are filled with pledges to enforce the Election Code. However, when asked for comment on the Farenthold suit, Hill issued a one sentence reply through his press secretary: “The Attorney General plans no further action on the Farenthold v. Briscoe case.” A subsequent attempt to discuss the specific allegations about Texas Instruments was rebuffed, also through Hill’s press secretary, with a “no further comment.” Bill Brice confirms that Hill does indeed have possession of the evidence developed by Farenthold’s attorneys. Unless Hill has examined this evidence and found it lacks merit, and for some reason is unwilling to say so publicly, the inescapable conclusion is that the ambitious Attorney General, his own eyes on the Governor’s chair, chooses not to rock the Democratic establishment’s boat.
This and other aspects of the Farenthold case suggest that there may be a need for still further revision of the Election Code.
“What we need is a referee with investigative authority, one who can file complaints,” says Ben Bynum, state representative from Amarillo, who sponsored the legislation leading to the 1973 revisions of the Election Code. “The trouble with the present law is that it’s unenforceable. It has to be enforced by elected judges and elected D.A.s and elected Attorney Generals. Hell, if the D.A. in Amarillo is my good buddy, he’s not going to indict me. Until we have an Election Commission, there will be no meaningful enforcement of the Election Code. The Farenthold suit is a perfect example of that.
“It is also a perfect example of why the Secretary of State should not have the sole authority to interpret the Election Code. The Secretary of State is the Governor’s right-hand man, his highest appointee. Mark White is Dolph Briscoe’s most trusted advisor. Now I like Mark White, and I think he’s done a great job. But he made some incredible rulings before Mrs. Farenthold filed her suit, like saying that the Governor didn’t need to appoint a campaign manager because it was obvious he was just raising money to pay off old debts. Now he may or may not have been right about that, but the point is that as long as he’s the Governor’s right-hand man, he should not be invested with the authority to interpret the legality of the Governor’s actions… Also, under the present law, only the opponents can file a complaint [of Election Code violations] and that just looks bad: it looks like sour grapes.”
Bynum was sponsoring another, updated version of his bill at press time. The “most significant thing about it,” he says, “is that it creates a state Election Commission. The Attorney General declared the one in the old law unconstitutional, and I think rightly so. It was set up so there would be judges on the Commission, and there was a good possibility that some of the matters they passed on might later end up in their own courts. Under the new bill, there would be six members appointed by the Governor and the Secretary of State. If we’d had an Election Commission when this Briscoe thing came about, we would have had an immediate determination rather than spending a year and a half in the courts with no firm resolution.” Bynum also says that his new bill will clean up some of the “bad grammar” in the present law such as that part that prescribes a penalty for any candidate, campaign manager, or other person who “makes” an unlawful contribution: “Hell, a candidate doesn’t ‘make’ a contribution, he receives money. The Briscoe people were trying to interpret that literally.”
Bynum also says he will make prohibitions against internal corporate pressure and coercion “strong as a bear’s breath.”
Finally, Bynum says, he will probably include a provision backed by Secretary of State Mark White that outlines what kind of “affirmative action” qualifies a person as a candidate. This, of course, strikes at the original issue in contention during the Farenthold suit. Briscoe Dinner Committee campaign manager Hay says that the ambiguities of this part of the Election Code acted as “a trip wire”; in other words, the Governor became a “candidate” under the law without knowing it. The ensuing legal battle, says Hay, was “personally agonizing” and “did more to discourage honest people from participating in politics.” Bynum says that he does not think this part of the law is unclear, and would have testified to the law’s intent if he had been asked. “If you accept or spend money,” he says, “by God, you’re a candidate.” Nevertheless, he seems willing to appease the Secretary of State on this point, perhaps in a compromise to obtain White’s support for Bynum’s proposal for an Election Commission.
But beyond these issues and “technicalities,” a review of the record in the Farenthold suit raises still further questions about current campaign financing law. For example, giant law firms like Vinson, Elkins, Searls, Connally & Smith can and do contribute thousands of dollars in campaign funds. Most law firms are “partnerships,” not corporations, and partnerships, under present law, may legally contribute. This loophole permits the setting up of special partnerships primarily for the purposes of political giving—partnerships whose financial life-blood is pumped by corporations. Although no proof of such activity in the Briscoe operation has come to light, the larger question is whether the partnership loophole should remain at all. Similarly, should corporate officers and employees be allowed to solicit campaign contributions within their corporations, given the fact that many employees may perceive such solicitations as pressure? Or should the ban on corporate contributions itself be lifted, in the hope that legalization of such activity might permit effective regulation of it? To what extent should candidates and campaign managers be held responsible for the activities of subordinate fundraisers and contributors? And, assuming that the legislature does create an Election Commission, how much can or will such a body do to insure honesty and accuracy in campaign financing? Is there any answer short of complete public financing?
As these and other questions remain unanswered, an obscure former Briscoe opponent—William Posey of Galena Park—has filed his own Election Code suit. At press time, the named defendants were Governor Briscoe and Attorney General Hill. But Posey’s lawyers say they also plan to file suit against “that supper club [i.e., the Dolph Briscoe Dinner Committee] up in Dallas.” The damages Posey seeks are more ambitious than those sought by Farenthold—$4 million instead of $2.5 million—but Posey’s suit has already run into serious problems. According to late press reports, Secretary of State Mark White is unable to find any of Posey’s own required campaign finance reports.