May 11, 2005
Colyandro and Ellis ask for dismissal of charges

DeLay associates John Colyandro and Jim Ellis are in court to ask that charges against them be dismissed.

DeLay associates John Colyandro and Jim Ellis are scheduled to ask state District Judge Bob Perkins, a Democrat, to throw out the ethics indictments against them as being based on a constitutionally vague state law and as a violation of First Amendment free-speech rights.

If Perkins rules against the pair, they will be able to appeal the motion to the all-Republican Texas Court of Criminal Appeals before any trial. That's because they filed a motion to quash the indictment and a habeas corpus motion, which will give them a priority in the appellate system.

"When you have a case that has gotten this much attention, it will require a significant amount of judicial courage to do the right thing and end the prosecution without letting it go to trial," said Ellis' attorney J.D. Pauerstein.


Pauerstein and Colyandro's lawyer, Joe Turner, will argue that the state election law is vague and does not define an administrative expense. Turner also argues that TRMPAC had a right in 2002 to spend corporate money on politics so long as the money was not spent directly advocating a candidate's election or defeat.

Funny you should mention that. Rick Casey notes that after the judge hears this case today, he'll hear tomorrow from the Texas Ethics Commission on a curiously related incident.

In 1998, someone sent the Texas Ethics Commission a letter saying his or her client, a corporation and other corporations had been solicited "to donate a substantial sum of money" to be used for administrative purposes by a political action committee unconnected to the corporations.

The lawyer wanted to know if his client could give to a political action committee "which has no relationship or connection to the donating corporation" and whether the donation would be reported to anyone.

Two months later, the commission sent the lawyer a draft opinion. Its conclusion, after seven pages of analysis: "A corporation may make expenditures to defray administrative expenses of a general-purpose political committee only if the corporation participated in the establishment of the general-purpose political committee."

In other words: No.

In addition, the opinion made it clear that the expenditure of corporate funds was limited to rent and utilities and such.

"In contrast, expenditures for fund raising for the committee or for support of candidates are not administrative expenses."

TRMPAC allegedly used corporate funds for fund raising, polling to see how favored candidates were doing and targeted mailings praising favored candidates.

The lawyer, obviously knowledgeable of the peculiarities of Election Commission rules and practices, read the opinion and sent the commission another letter.

"My client wishes to withdraw the request for (the opinion)," the letter said. "We apologize for any inconvenience we may have caused."

Thus, the requestor's name is a secret, and the TEC will be arguing that it needs to stay a secret. The TEC will be representing itself, since the Attorney General has refused to do so. Sure would be nice to know who that inquiring attorney was, especially if he or she is now an interested party in the pending TRMPAC trial. For what it's worth, Jesse Lee has a suspect in mind.

I will say this: We know about this inquiry, and we know what answer the TEC gave. Given that, I have no idea how anyone can argue the law is vague. Does the TEC's opinion not count or something? Hopefully, this motion will get the boot it deserves, and we can get on to the real business of the trial. Stay tuned.

UPDATE: Wanted to add that I've discussed the issue of "vagueness" previously.

Posted by Charles Kuffner on May 11, 2005 to Scandalized! | TrackBack

Of course, the "vagueness" claim is a load of crap. What is and is not "administrative" is perfectly clear to anyone not trying to weasel out of breaking the law. But as the article says, the Texas Supreme Court is composed entirely of Republicans. I can't help but wonder if enough of them will sieze on this as an excuse to dismiss these cases. Bush v. Gore happened, so we know partisan decisions are possible.

Interestingly, both the "vagueness" claim and the "Frist Amendment" claim are based on the U.S. Constitution, so whoever loses in the Texas Supreme court could appeal to the U.S. Supreme Court! ("Vague" laws are considered to violate the due-process clause of the 14th Amendment.) The Supremes don't have to take the case, of course, and probably won't, but they've already rejected the First Amendment claim in the challenge to McCain-Feingold, so anything's possible. Wouldn't that be interesting?

Posted by: Mathwiz on May 12, 2005 9:49 AM