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Edward B. Foley
Free & Fair is a collection of writings by Edward B. Foley, one of the nation's preeminent experts on election law.

Weekly Comment

The Federalism Defect in the Prosecution of Tom DeLay

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November 29, 2005

This comment originally appeared in the November 28 edition of Roll Call and is being reprinted with permission

As we all know, Rep. Tom DeLay (R-Texas) was Majority Leader in one house of the U.S. Congress, yet the indictments that deprive him (at least temporarily) of this powerful post allege violations of state, rather than federal, law.

According to these indictments, several major corporations wrote large checks to a DeLay-controlled political action committee, which then funneled the money to the Republican National Committee, which in turn re-routed the corporate dollars back to several candidates for the Texas Legislature. Because it is illegal under Texas law for corporations to contribute to a state legislative campaign, the indictments claim that the three-step financial transaction ­ from corporations to PAC to RNC to candidates ­ was a deliberate and impermissible attempt to evade this prohibition.

The first indictment charged DeLay as a co-conspirator in this alleged evasion. The second, based on the same underlying facts, added the charge that this effort to circumvent the state's campaign finance laws violates the state's money laundering statute.

DeLay now seeks to dismiss these indictments. Whatever one thinks about DeLay as a politician, or even about the ethical propriety of the alleged financing scheme, there is a basic reason why his dismissal motion should prevail: As a Member of Congress, he should be accountable for his campaign finance practices to federal, not state, authorities.

Let's assume, for sake of argument, that what occurred did violate Texas law and that DeLay orchestrated the flow of funds. It still does not follow that DeLay should be prosecuted for this Texas crime.

The purpose of the Texas prohibition on corporate contributions to state legislative candidates is to protect the Texas Legislature, and by extension the Texas residents it represents, from the potentially corrupting influence of these corporate dollars, as would occur if the corporations called in the debts these candidates owed them. It is a laudable purpose, and this law should be enforced. Therefore, the state of Texas would be well within its rights to prosecute the corporations that provided illegal contributions of this nature as well as the candidates who received the illegal funds.

Texas, too, would be entitled to prosecute most middlemen who facilitated or arranged this kind of illegal transaction. If a local powerbroker had intentionally orchestrated the transfer of funds from corporations through conduits to candidates, then the local powerbroker deserves the threat of local prison.

But DeLay is no local powerbroker. Although the indictments paint DeLay as an incidental player in a crime committed mostly by others, it is hard to imagine DeLay is anything but the main character in this drama. Rather, it has been widely reported that DeLay conceived the plan that would put the Texas Legislature in Republican control, with the consequence of increasing the size of the Texas delegation in Congress as well as his own political power. As campaign finance activist Fred Wertheimer put it after DeLay's indictment, "DeLay has been the king of a Washington-lobbyist, influence-money approach for governing America."

All this suggests, however, that the corporations in this instance gave their funds not so much to win influence over future members of the Texas Legislature, but instead to curry favor with the Majority Leader of the U.S. House of Representatives. But then we must ask whether DeLay's actions, as alleged in the Texas indictments, violated federal campaign finance laws.

These national laws are designed to protect Members of Congress from the risk of corruption. Thus, if there is a concern that the corporate contributions described in the indictments presented the risk of corrupting DeLay ­ and with him, as Majority Leader, the entire agenda of Congress itself ­ then one would think that this concern would be addressed in a provision of the federal campaign finance law.

It turns out that it is a bit tricky to determine whether the alleged facts violate federal law. There is a provision of the McCain-Feingold statute that prohibits a Member of Congress from raising corporate funds on behalf of a candidate for state office, but this provision did not take effect until November 2002, two months after the financial transaction described in the indictment.

The point here is not to resolve conclusively whether DeLay violated federal law, but rather to make the case that DeLay's fate should depend on the answer to this federal question, not on whether he committed a state crime. If a Member of Congress goes to prison for soliciting corporate contributions, it should be because a federal prosecutor and federal court (both jury and judge) have determined that the Member has committed a federal offense.

One could argue that if DeLay facilitated the corruption of state officeholders, he should be accountable under state law, just as the local powerbroker is. But my answer is no. The involvement of the Member of Congress in this political fundraising scheme means that the liability of the Member should be handled by federal, rather than state, law. Other participants in the scheme can be fully subjected to the strictures of state law, but the national interest that Congress operate under national rules to protect its Members from corruption requires that state law yield in this limited respect.

In substance, the financial transaction is a different one if the House Majority Leader orchestrated it. When a local powerbroker facilitates the receipt of corporate funds by a local candidate, that powerbroker is an agent of corruption. But DeLay is a principal, not an agent, and prosecutorial discretion should respect this difference.

So far there has been no clamor for a federal indictment against DeLay because of these alleged activities. Without one, DeLay should be free from risk of prosecution.

If the Majority Leader did nothing wrong according to the rules that seek to protect Congress from improper influence, then neither he nor the nation's business should be snagged by local rules for the governance of local politics.