The ascension of a new Republican majority in the House of Representatives this week contrasts sharply with an event that will unfold next Monday 1,300 miles away in a courtroom in Austin, Texas: the sentencing of former House majority leader Tom DeLay. Known as “The Hammer” for his sharp-elbowed legislative tactics, the former exterminator from Sugarland once proudly displayed a bull whip on his Capitol Hill office wall. By sheer force of his Texas-sized personality, he led the political operation of the House GOP for over seven years, from Newt Gingrich’s resignation as House speaker in December 1998 until his indictment in April 2006. Despised by Democrats but adored by the colleagues he helped elect, nurtured, mentored, and cajoled, he now faces a possible sentence of 99 years in prison for the crime of electing Republicans to the Texas legislature.
The facts surrounding DeLay’s conviction are a yawner for those operating in the world of political fundraising. Texas, like 22 other states, prohibits corporate contributions to state candidates, though political committees can use those funds (known by the shorthand of “soft money”) for administrative overhead. DeLay organized the Texas Republican Majority PAC and raised corporate funds for its efforts, most of which were used for salaries and office rent. In September 2002, political operatives close to DeLay sent $190,000 in corporate funds to the state legislative arm of the Republican National Committee. From a separate account, the RNC then sent $190,000 in contributions to state House candidates in Texas. In total, the RNC contributed to more than 40 state legislative candidates. DeLay and the Republicans were seeking to gain control of the Texas House of Representatives, thereby allowing them to draw congressional district lines more favorable to the GOP. When the Republicans won a majority in the Texas House, they engaged in a rare mid-decade reapportionment, which led to howls of protest and an attempted walk-out by Democratic legislators.
I was chairman of the Georgia Republican party in 2002, so I know first-hand that the practice of exchanging soft and hard dollars was both commonplace and legal at the time; it was practiced openly by both parties. Indeed, a commodity-like national market of corporate and personal funds operated among state and national party committees, with soft money traded for hard money (which was harder to raise and therefore more valuable) at between 50 and 75 cents on the dollar. If DeLay’s operatives made any mistake at all, it was being too good at negotiating: They exchanged the funds dollar-for-dollar.This even exchange enabled prosecutors to later claim the funds were “laundered.” But money laundering requires an underlying crime. There was nothing illegal about supporting state House candidates with the funds so exchanged, and the transaction was reported publicly by both DeLay’s state committee and the RNC.
Famously partisan Travis County prosecutor Ronnie Earle, who indicted U.S. senator Kay Bailey Hutchison in 1993 on similarly trumped-up charges but lost at trial, trained his sights on DeLay. In the short term, he has succeeded. But it seems unlikely that a conviction rendered by a jury drawn from registered voters in a heavily Democratic county will withstand appeal. This is particularly true after the Supreme Court’s decision in Citizens United v. FEC, which overturned McCain-Feingold’s ban on using corporate funds to advocate the election or defeat of federal candidates. Just six years after initially upholding McCain-Feingold, the Court ruled, “By taking the right to speak from some and giving it to others, the Government deprives the disadvantaged person or class of the right to use speech to strive to establish worth, standing, and respect for the speaker’s voice. . . . The First Amendment protects speech and speaker, and the ideas that flow from each.” With the high court ruling that corporations have a constitutional right to openly advocate the election of federal candidates, DeLay’s conviction seems not only a travesty of justice, but a legal anachronism.
Perhaps there is a connection between DeLay’s travails and the slow unraveling of campaign-finance reform. The Wall Street Journal opined that the elation of campaign-finance advocates at DeLay’s conviction merely “shows how desperate they are now that the Supreme Court is dismantling their decades-long quest to regulate campaign speech.”
There is also the issue of prosecutorial discretion. In October 1996, the deputy White House chief of staff contacted a Democratic-party donor and reported that the Clinton presidential campaign had an urgent need for funds, including in Texas. He urged the donor to send millions of dollars to liberal tax-deductible groups, and provided a list of recommended groups, including Vote ’96, whose leaders had close ties to the Democratic National Committee. No one involved was ever indicted, much less convicted. Yet even though court testimony revealed DeLay never talked to anyone at the Republican National Committee about the transaction that led to his indictment, he has spent years under a legal cloud and now faces prison time.
Tom Delay’s only crime was helping to elect Republicans to office, and his conviction now stands as Exhibit A of the Kafkaesque excesses of campaign-finance reform, which, when left unchecked, leads not only to the criminalization of politics, but the perversion of the First Amendment. One hopes it is overturned on appeal. If so, it will be a footnote of a bizarre and discredited time in our history when a prominent politician faced prison time not for accepting a bribe or profiting from his public service, but for the thoroughly American practice of electing like-minded men and women to public office.
— Ralph Reed, a Republican strategist, is chairman of the Faith and Freedom Coalition.