When even the Washington Post is coming to the defense of Tom DeLay, one can be sure that something isn’t quite right with the former House majority leader’s prosecution and conviction.
DeLay was convicted last week of “money laundering” for his role in raising and directing political contributions in connection with races in Texas in 2002. The basic facts are these: DeLay solicited six corporate contributions totaling $155,000 to TRMPAC, a political action committee he headed. TRMPAC then contributed $190,000 to the Republican National State Elections Committee (an arm of the Republican National Committee), which later contributed $190,000 to seven candidates for the Texas House of Representatives who had been recommended by DeLay. Because corporate contributions to campaigns are illegal in Texas, the theory is that DeLay “laundered” these contributions through the RNSEC.
The first problem, as the Post notes, is that “money laundering” means knowingly using the proceeds of criminal activity. At no point were any of these contributions against the law, so it is not clear how anybody could have knowingly used the proceeds of criminal activity.
The second problem is that while the case looks tidy up front — TRMPAC gives $190,000 to the RNSEC, which contributes $190,000 to candidates recommended by DeLay — in context things are not so neat. First, of course, is the problem that TRIMPAC’s $190,000 contribution to the RNSEC did not consist entirely of corporate funds. Perhaps more importantly, the RNSEC contributed much more than just $190,000 to Texas candidates. In the final two months of the 2002 campaign, they contributed $877,000 to 42 different state and local candidates in Texas, including the seven recommended by DeLay. It is estimated that over the course of the 2002 campaign, the RNC raised approximately $15 million in Texas, much of it in corporate contributions, while the DNC raised approximately $10 million in Texas, again including many corporate contributions, and also spent considerable sums in the state (corporate contributions to the national party committees were legal at the time; they were prohibited beginning in 2003).
In fact, before McCain-Feingold, both the Republican and the Democratic parties routinely accepted “soft money” (from corporations and unions, plus large individual contributions) from Texas and other states where corporate funds could not be contributed to candidates but where national parties were free to spend soft money on party administration and advertising on issues of importance to the party; they could also send the money to state and local candidates in states that allow corporate contributions. At the same time, national parties also received contributions of “hard money,” consisting of smaller individual contributions. Hard money, kept in separate accounts, was also sent back to state candidates — in all states.
There was thus a constant flow of hard and soft money (the latter including corporate contributions) to and from the national party committees, including direct contributions to state candidates. Indeed, during the 1990s the DNC developed a “tally” system, in part to make sure that soft money contributed to the DNC from a given state was roughly offset by hard-money contributions from the DNC.
In summary, few state party chairs or national party operatives would have given a second thought to the legality of such money swaps in 2002, and it would not be shocking if the case made against DeLay could be made against many others operating in politics at the time. For years, the Democrats tried to “get” Tom DeLay, even filing a RICO action against him in the 1990s. Now they have finally succeeded. Congratulations. But as even the Washington Post is pointing out, ”When Mr. DeLay, following the conviction, assailed ‘the criminalization of politics,’ he had a fair point.”
— Bradley A. Smith is Josiah H. Blackmore II/Shirley M. Nault designated professor of law at Capital University Law School.