On Dec. 5, a Texas District Court dismissed one of the indictments against Tom DeLay. DeLay and his lawyers trumpeted the ruling as a victory and expressed confidence that the remaining charges against DeLay would meet a similar fate. Yes, it is a technical legal victory. It is not a political victory, however, because the very same Republican legislative majority DeLay helped to get elected outlawed the conduct which the indictment charged.
DeLay has been accused of orchestrating a scheme to funnel corporate funds through various political action committees and into the coffers of Texas Republican state legislative candidates for the 2002 election. During my unsuccessful bid for the attorney general's office in North Dakota in the 2004 election, I became especially concerned about the use of corporate funds in state political campaigns. Following the election I wrote a law review article on this issue which is to be published sometime this year in the North Dakota Law Review. I have been following with great interest the progress of the case against DeLay in Texas.
The Texas Election Code, like North Dakota law, bans the use of direct corporate fund contributions to political candidates. The result of political contributions produced by DeLay's effort was a Republican majority in the Texas Legislature for the first time in 130 years. The prosecution maintains that those funds came from illegal corporate sources.
In the Dec. 5 ruling, Texas State District Court Judge Pat Priest dismissed the indictment alleging conspiracy to violate the Texas Election Code. (Judge Priest refused to dismiss charges of money laundering and conspiracy to launder money. Those charges are pending against DeLay.) DeLay's lawyers argued successfully that the crime of conspiracy to violate the Texas Election Code did not exist in 2002 when DeLay's acts were alleged to have occurred.
For reasons which Judge Priest did not explain in his ruling, the Texas Legislature in 2003 made conspiracy to violate the election code illegal. The ruling acknowledged the conventional legal notion that legislatures do not perform idle acts. The legislature passed a law specifically addressing a problem it perceived in the system.
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Unwittingly or not, the Texas Legislature did a huge favor for DeLay. By passing a conduct-specific statute, the Legislature was in effect saying that the decades-old general conspiracy criminal statutes did not apply to the conduct. Acts occurring before the law was passed cannot be criminalized. Thus, Judge Priest ruled that DeLay's acts in 2002, whatever else they may have been, could not have been a conspiracy to violate the election code. The Republican-controlled Legislature delivered up just the technicality DeLay's lawyers needed to get him off.
When the indictments were first announced, DeLay charged that the Travis County prosecutors were trying to criminalize politics. The prosecutors are only enforcing the law. It was DeLay's friends in the Republican-controlled Legislature who actually criminalized politics. They added a new crime for political activities: the crime of conspiracy to violate the election code.
So why did the Texas Legislature see fit to make the crime of conspiracy applicable to the election code? The idealist in me answers that question by saying that they recognized DeLay's conduct as being wrong and felt it necessary to specifically outlaw it. The political cynic in me answers by saying that the Republican majority simply did not want the Democrats to do the same thing to them. Whatever the reason, we should not be fooled by the DeLay camp's shouts of victory. It is only a technical victory. The fact remains that the folks he got elected agreed that the conduct which got them there needed to be outlawed.
Schoenwald, Fargo, is an attorney with Stefanson, Foss & Fisher in Moorhead. He was the Democratic/NPL candidate for the office of attorney general in North Dakota during the 2004 general election. E-mail bruces@stefansonlaw.com
