Amici briefs in DeLay v. Texas
Benjamin Barr, Stephen Klein & Roger Borgelt
December 15, 2011 (Texas Third Court of Appeals at Austin)
June 2, 2014 (Texas Court of Criminal Appeals)
1. Is the Texas money laundering statute, and relevant provisions of the Texas Election Code, void for vagueness when used to combine three types of legal political contributions into an illegal contribution?
2. Does the Texas money laundering statute, and relevant provisions of the Election Code, fail the First Amendment’s requirement of narrow tailoring when they criminalize political contributions and campaign finance accounting practices that have been recognized and protected in federal courts?
In the Fall 2002 Texas elections, a political committee (PAC) called Texans for a Republican Majority (TRMPAC) raised $190,000 from corporations. Although they could not contribute this money to candidates under Texas law, they could use this money for administrative purposes and were free to use it in federal elections or in states that allowed broader use of such funds. So, they contributed the money to a federal PAC, the Republican National State Elections Committee (RNSEC). In return, the RNSEC contributed $190,000 from accounts made up of contributions from individual persons to seven candidates for the Texas Legislature.
What does the State of Texas call this series of legal acts? Not just legal acts, but acts that are integral to First Amendment political speech and association?
They call it money laundering.
The Wyoming Liberty Group, in briefs joined by the Center for Competitive Politics, argues that the provisions of the Texas Election Code and Texas Penal Code that were allegedly violated are void for vagueness and, furthermore, are not narrowly tailored to address a compelling governmental interest. Both of these mean that the laws violate the First Amendment, and thus the conviction leading to these appeals cannot stand.
Texas has a proud tradition of protecting free speech in its courts, even when that speech is offensive to some. Courts in Texas have previously struck down laws that prohibited erotic material, harassment and vagrancy far too vaguely. They did so because when a law is vague, it’s not only easy to violate because ordinary people don’t understand its meaning, it lets the government arbitrarily or discriminatorily enforce the law. That’s exactly what happened here: while Tom DeLay and other members of TRMPAC have been burdened under years of litigation, one group that made eight other “money swaps” in Texas around 2002 was never charged with anything. The brief also discusses recent court rulings that embrace the use of separate accounts by private organizations (like TRMPAC’s corporate funds accounts and RNSEC’s individual contributions accounts) to ensure that campaign finance laws do not infringe upon protected speech in their effort to combat corruption or its appearance.
- The Texas Third Court of Criminal Appeals at Austin heard oral arguments in the appeal on October 10, 2012.
- On September 19, 2013, in a 2-1 decision the court reversed DeLay’s conviction. Click here to read the opinion. On pages 15-16, the opinion incorporates arguments from pages 42-49 of WyLiberty’s first brief, recognizing that:
[I]n the context of the campaign finance regulations, maintaining separate, segregated bank accounts for soft and hard money is recognized and accepted as legitimate. See, e.g., 11 C.F.R. 102.5 (authorizing “organizations financing political activity in connection with Federal and non-Federal elections” to maintain separate bank accounts for hard and soft money); EMILY’s List v. Federal Election Comm’n, 581 F.3d 1, 12–13, 17–18 (D.C. Cir. 2009) (discussing distinction and authorization of hard and soft money accounts in context of hybrid nonprofit); Carey v. Federal Election Comm’n , 791 F.Supp. 2d 121, 125, 131–32 (D.D.C. 2011) (discussing distinction and authorization of “separate” hard and soft money accounts in context of federal political action committee and concluding that “maintaining two separate accounts is a perfectly legitimate and narrowly tailored means to ensure no cross-over between soft and hard money”).
- On March 19, 2014, the Texas Court of Criminal Appeals–the highest criminal court in Texas–granted a petition for discretionary review by the state of Texas to hear the case.
- On June 20, 2014, WyLiberty and Center for Competitive Politics filed an amici brief with the Texas Court of Criminal Appeals, focusing its First Amendment arguments on rebutting the State’s case.
- The court heard oral arguments in the case on June 18, 2014.
- On October 1, 2014, the Court of Criminal Appeals ruled in an 8-1 decision to affirm the ruling of the Third Court that DeLay was innocent of any wrongdoing.
Although Tom DeLay and the First Amendment were vindicated, it took nearly a decade of prosecution before the so-called “Public Integrity Unit” of Texas got the message. WyLiberty’s briefs were the only ones provided to the courts in this case that rested unequivocally on free speech, and illustrated the chilling effect of speech inquisitions by the government. Although the final ruling in this case was favorable, it will take more proactive efforts to stop prosecutors and elections commissions nationwide from penalizing–even criminalizing–political engagement.