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BOSSIE: The lynching of Tom DeLay

When indictment takes three tries, the charges are suspect

- The Washington Times - Thursday, December 2, 2010

Around Washington, Rep. Tom DeLay was known as "the Hammer." It's a title he earned for his effective

ness when he served in the role of majority whip. The whip is the person tasked with counting votes and building support for legislation. As whip, Mr. DeLay was uniquely effective at enacting and implementing the Contract With America and key portions of the George W. Bush agenda. He also was able to flex his political muscle within the state of Texas to leave his mark on the redistricting process.

Tom DeLay was a very skilled politician. He understood the legislative and political processes better than most. However, his effectiveness put him squarely in the cross hairs of another effective politician: Ronnie Earle.

Mr. Earle isn't a player most Americans have heard of. He is neither a veteran member of Congress nor an influential lobbyist - he was the Travis County district attorney. In Texas, unlike other states, the district attorney in a county has statewide jurisdiction over public corruption crimes. Over the course of his three-decade-long career, Mr. Earle turned the power of his office against many politicians. The battles he waged against Republican politicians, including DeLay and Kay Bailey Hutchison, are infamous. They achieved this status not because of the facts of the cases, which were mediocre at best, or the strength of the legal arguments, but rather because Mr. Earle's targets were well-known public figures.

Mr. Earle's antics were very similar to those of former New York state Attorney General and disgraced Gov. Eliot Spitzer. Mr. Spitzer would choose high-profile Wall Street targets, announce in a grand spectacle to the press his intentions to investigate and prosecute them and then use the limelight to extract concessions and plea agreements from his targets. He used the press and the threat of legal action to advance his liberal agenda and political career.

Mr. Earle, however, wasn't as effective as Mr. Spitzer. Mr. Earle tried to prosecute Mrs. Hutchison when she was Texas treasurer but failed; Mrs. Hutchison went on to serve in the U.S. Senate. In 2005, Mr. Earle set his sights on another political figure: Tom DeLay.

Mr. Earle alleged that DeLay had conspired through a political action committee (on whose advisory board DeLay served) and the Republican National Committee to funnel $190,000, partially obtained from corporations, to candidates within the state. Texas prohibits direct corporate contributions to candidates. The election laws at the time of the conduct did not prohibit DeLay's actions.

Despite the fact that the election laws didn't cover DeLay's activity, Mr. Earle indicted him. The charges were thrown out by the presiding judge. Undeterred, Mr. Earle went to a different grand jury to indict DeLay, but this time the grand jury didn't go along with it and refused to return an indictment.

Mr. Earle wouldn't give up - so he tried a third time, bringing new charges against DeLay for money laundering and conspiracy to commit money laundering, with a brand-new grand jury. The legal argument was weak at best. However, if the conduct does constitute money laundering, why was DeLay the only one charged? Mr. Earle's dogged pursuit of DeLay does not show the pursuit of justice, but rather the pursuit of political gain. I've seen what happens when the legal system is used to criminalize political activity and participation. The Bipartisan Campaign Finance Reform Act of 2002, better known as McCain-Feingold, criminalized political speech. It did so by prohibiting independent expenditures - advertisements advocating for or against candidates - by corporations and labor unions.

In 2008, Citizens United produced a film, "Hillary the Movie." We sought to show the film in movie theaters and on television via video-on-demand and to run commercials promoting our film. McCain-Feingold prohibited us from advertising our documentary. If we had run commercials promoting our film, it would have been considered a willful violation, and rather than Citizens United being subjected to a civil penalty, I personally would have been subject to criminal penalties and jail time. Jail time for exercising the First Amendment right to political speech. We filed suit and after a two-year legal battle, and the Supreme Court issued a decision embracing the First Amendment over political attempts to stifle speech.

In Citizens United v. Federal Election Commission, we were victorious, and the First Amendment was protected from attempts to criminalize the political process. In Ronnie Earle v. Tom DeLay, it appears Mr. Earle has carried the day for now. Though he is no longer the Travis County district attorney and failed in his run to become lieutenant governor of Texas, the case he engineered has resulted in the conviction of Tom DeLay. Mr. Earle succeeded in using the legal system for political purposes. Allowing the legal system to be abused in this fashion sets a very dangerous precedent.

David N. Bossie is president of Citizens United.

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