Tom DeLay, former House Republican Majority Leader, was convicted of money laundering in Texas in 2010. Late last year, Ben Barr and I filed an amici (friends-of-the-court) brief in the appeal of that case on behalf of WyLiberty and the Center for Competitive Politics in support of overturning DeLay’s conviction. Basically, the prosecutors in the case superimposed Texas money laundering laws onto the state’s election code and squeaked out a conviction that, if upheld, will open the door to criminalizing political speech throughout Texas and, perhaps, beyond.
Yesterday, almost a year after we filed our brief (and nearly a decade after the events that gave rise to the charges in the case) DeLay’s appeal was heard before a panel of judges at the Texas Third Court of Appeals at Austin. Ben and I attended the hearing, and although oral arguments are no way to predict the outcome of a case (a principle recently reaffirmed in our Free Speech case), it’s clear that the arguments in our brief are important to the case.
The more complex a case, the more tempting it is to gloss things over. That’s certainly what the media has done with the DeLay case. In this case, the idea of “money swapping” strikes many people as unsavory, or skirting the law, and following a conviction writers and readers alike tend to ignore the rest of the story. Nevertheless, as DeLay’s attorney Brian Wice argued to the court, that does not change the fact that what DeLay did does not approach the legal definition of money laundering.
Nor, as we argue in our brief, did any of DeLay’s actions even violate the Texas Election Code. In 2002, a Texas PAC could accept money from corporations, could then donate it to a federal PAC, and federal PACs were free to donate money made up of individual contributions to candidates for Texas office. Nowhere do these three legal acts—individually or as a whole—give rise to money laundering, much less any crime at all. Since political spending implicates the very core of the First Amendment, any reading of the Texas law that makes these activities illegal would be too vague and overbroad, and thus unconstitutional.
This became especially important during yesterday’s oral arguments as two judges on the panel—Justices Melissa Goodwin and David Gaultney—pressed Assistant District Attorney Holly Taylor on whether or not corporate donations to Texas PACs were legal. Taylor claimed that the only way a corporate donation to such a PAC would be legal is if the corporation itself included a letter that unequivocally stated the donation must only be used for “establishment or administration” of the PAC, and not for corporate contributions to candidates. This appeared to leave the judges quite concerned, as nowhere does the Texas Election Code require corporations to do this. It appears to be another example of the Travis County District Attorney’s Office writing law rather than enforcing it.
It took a long while to get to this appeal, and will be another stretch before the panel issues its ruling. Both sides have indicated appealing if the case does not go their way. Either way, we’ll continue to fight for understandable laws that encourage political speech and treat the First Amendment as a principle, and not a problem to be solved.