The inquiries into Republican fund-raising in the 2002 elections are creeping toward some resolution. The Austin political set should hold its breath but inhale deeply. This won't untangle until long after today's election.
Travis County District Attorney Ronnie Earle continues to investigate whether corporate money was used illegally by at least two political action committees. He secured the indictments of eight corporations and three GOP fund-raisers in September on charges of illegal contributions and money laundering. His office said then that "more work remains to be done."
Travis County Attorney David Escamilla also is busy. He's been looking into the possible illegal use of corporate funds by the state Republican Party for four months. The GOP is still giving him documents. Republicans evidently agreed to let him extend the statute of limitations on his inquiry.
Campaign finance laws are the reason any of this matters. If you're a political action committee in Texas, you cannot:
* Pay political expenses with corporate or union money. PACs may use such money for administrative expenses.
* Pay a direct contribution to a candidate (or pay for a campaign advertisement) with corporate or union money. They may use such money for issue advocacy: political advertising that doesn't explicitly recommend throwing out one politician or electing another.
* Coordinate issue-advocacy advertisements with campaigns. Coordination appears to mean that, in any given race between Bob and Joe, Joe can't be in cahoots with the Texans for Modesty PAC when it prints an ad claiming Bob streaked in college.
Contribution. Coordination. Advocacy. These operative words must be defined. And the Texas Ethics Commission, the agency with the power to define them, doesn't always want to.
The investigations won't say much about who wins a contested race today. After all, this is post-redistricting Texas, plotted like a jagged mosaic into congressional districts with predictable outcomes. The state incumbents who received corporate funds from one Republican PAC may hurt for it. Everyone else has bigger concerns.
The Legislature's most famous influence-peddling scandal, known as Sharpstown, led to bribery convictions of two members and a turnover of power in the 1970s. The present mess might say something about who will rule Texas.
"It seems to me that any time that you have a major investigation, that both parties have to follow it very closely," said Max Sherman, a professor at the LBJ School of Public Affairs and a former Democratic state senator.
The first bill comes to $526,000.
That's how much eight corporations and three fund-raisers - John Colyandro, Jim Ellis and Warren Robold - are indicted for handling. Some of this money went through the Republican National Committee and then to candidates, according to indictments.
Texans for a Republican Majority PAC, for which the three men took contributions, had as much as $602,300 in corporate money, according to the Texas Observer. Ellis told the Observer this money was used, legally, for administrative expenses. He, Robold and Colyandro reportedly plan to plead not guilty.
The PAC didn't disclose this money to the Texas Ethics Commission. Because the money didn't cover political expenses, TRMPAC officials have maintained it had to be reported only to the IRS.
TRMPAC is connected to House Majority Leader Tom DeLay. Though DeLay is not charged with a crime, he proclaims his innocence with increasing vigor these days. The Houston Chronicle reported he has campaigned a bit harder in his Sugar Land district, where he is virtually secure.
"The significance of the indictments," said government lecturer Tim Fackler, "would be that they have a kind of cooling effect on election financing in certain segments of the Texas contributing community."
One of those segments is the Texas Association of Business. Earle's been investigating TAB and its Business and Commerce PAC for tossing a cluster bomb of mail ads - issue advocacy, remember - at state races. The mostly negative ads appeared to help conservative Republicans win in 18-of-24 "targeted" races. In a newsletter included in court filings, TAB took partial credit for the wins.
That's why the district attorney and TAB have been fighting things out in civil court. Earle wants access to documents about the advertising campaign, apparently to see if corporations were trying to pack the Legislature. TAB's lawyer has argued that the list is protected from subpoena by the First Amendment.
Writing the final definition here of "issue advocacy" will be up to a judge or jury.
There may or may not have been wrongdoing. There was certainly corporate money.
TRMPAC hasn't denied using it, and the indictments include photocopied checks from such companies as Bacardi and Cracker Barrel. Some observers think these transactions should have caught someone's eye at the Texas Ethics Commission. But the watchdog kept silent.
The commission, which compiles campaign finance reports, enforces state election laws. It can impose fines and investigate candidates, but it doesn't attack often. Its opinions, which are advisory, receive little publicity. They could, however, provide important guidance.
For instance, ethics commission lawyers found it illegal in 1998 for a corporation to give money to an outside PAC. That's exactly how TRMPAC got the funds in question. If the commission had published this opinion, the corporations might not have opened their checkbooks.
In another obscure piece of legalese, the commission defined coordination between a PAC and a campaign. It's buried in Chapter 20 of the Ethics Commission Rules:
"A campaign expenditure is not a contribution from the person making the expenditure if: (A) it is made without the prior consent or approval of the candidate or officeholder on whose behalf the expenditure was made ...."
So if a PAC pays for a direct-mail ad with the "prior consent or approval" of the candidate who stands to gain - is it a contribution?
According to logic, yes.
If so, TAB may be in trouble. The Statesman reported that one TRMPAC-affiliated consultant seemed to be advising a candidate when the business group was mailing attack ads that would help the candidate. TAB has said it did nothing wrong.
Perhaps fear assists the agency's silence. When Sarah Woelk, the ethics commission's general counsel, told the Statesman that PACs must report all expenditures, Texas Attorney General Greg Abbott began investigating her.
The Statesman reported one legislator had complained that Woelk's comment was improper because the TRMPAC investigation was before a grand jury. Angela Hale, Abbott's spokeswoman, said the "inquiry" (she prefers this word to "investigation") continues.
The ethics commission won't comment on whether it has been looking into TRMPAC, said Natalia Ashley, assistant general counsel. She said the agency usually acts in response to sworn complaints.
A former ethics commission lawyer said the county attorney's and district attorney's investigations have followed trails the ethics commission should have spotted first.
"They really did not see their role as any kind of enforcement role," said the lawyer, speaking on condition of anonymity. "They were not really wanting to have any investigative authority."
Where redistricting fits in
TAB and TRMPAC, under DeLay's guidance, used corporate money to ensure the election of a conservative GOP Legislature that would gerrymander congressional districts.
Such a theory arises in conversation with Renea Hicks, a Democratic lawyer fighting redistricting in court, or in the well-researched series by Jake Bernstein and Dave Mann in the Texas Observer.
These sources, of course, lean left. So do the progressive groups that first filed a criminal complaint. So does Cris Feldman of Texans for Public Justice, who apparently solicited clients among beaten Democrats. The PAC's lawyers showed in depositions that two of Feldman's clients based their claims of illegal fund-raising on newspaper reports and the word of their lawyers.
And District Attorney Earle and County Attorney Escamilla are both Democrats - though Earle has investigated more Democrats then Republicans.
This lineup means Republicans can raise a political defense by blaming partisan spirit. The deflection is partly legitimate (personal bias can affect the gathering of information) and partly a fallacy (the test of an argument is its strength, not who makes it).
Maybe the investigations are the equal but opposite partisan reactions to a partisan redistricting effort.
Bill Miller, a political analyst who is close to Texas House Speaker Tom Craddick, said redistricting "is never about policy. It's always about politics; it's always about one party or the other having dominance."
Still, both parties are taking this drama seriously. Now it unwinds at the sluggish pace of courts: DeLay was able to avoid testifying in a related lawsuit last week. Feldman is suing Craddick for records of the speaker's contact with Ellis, one of the TRMPAC fund-raisers. TAB has managed so far to keep from disclosing to Earle a list of its members.
And Earle's public statements upon announcing the indictments left plenty of room for new plot twists.
TIMELINE
Nov. 5, 2002 Republicans sweep every major statewide office and gain a majority in the Legislature. Texas Association of Business spends $1.9 million in ads in legislative races, and Texans for a Republican Majority PAC raises funds from several corporations.
Jan. 16, 2003 A Travis County grand jury subpoenas TAB's records.
March 18, 2003 TRMPAC's former executive director pleads the Fifth instead of testifying before a grand jury. He testifies with limited immunity.
April 30, 2004 Common Cause and Public Citizen request a criminal investigation of the state Republican Party.
Sept. 21, 2004 Three TRMPAC fund-raisers and eight corporations are indicted on charges of illegal contributions and money laundering.
Sources: The Austin American-Statesman, The Daily Texan
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