September 02, 2007
TAB indictment thrown out again

The second time is not a charm for Ronnie Earle.

A judge in Travis County, for a second time, has thrown out an indictment accusing the Texas Association of Business of breaking state election law during the 2002 legislative campaigns.

State District Judge Mike Lynch's opinion Friday echoed his ruling last year that said the business group's corporate-funded ads did not expressly advocate the election or defeat of candidates.

Lynch also dismissed prosecutors' attempts to sidestep the association's free-speech defense by arguing that the business group acted as a de facto political committee by coordinating its 2002 efforts with other political groups.

"You simply cannot make a silk purse out of this sow's ear," wrote Lynch, lifting a line from last year's ruling.

The ruling is a major setback for Travis County District Attorney Ronnie Earle, who said he would appeal.

Two similar indictments from the same events are pending, and Earle's appeal would ensure that the state's highest courts decide the matter.

"TAB broke the law, then bragged about it, and should have to answer like everyone else," Earle said.

Austin lawyer Roy Minton, who represents the business group, said enough is enough.

"I feel like it's gone on long enough," Minton said. "It's been very expensive for my client."


Although the judge wrote that most nonlawyers would consider that the 2002 mailers supported candidates, he said that is not the law.

And he wrote that a recent U.S. Supreme Court ruling, Federal Elections Commission v. Wisconsin Right to Life, continues a consistent theme: "Where the First Amendment is implicated, the ties goes to the speaker, not the censor."

When Lynch threw out a similar indictment last year, Earle asked a grand jury to re-indict the business association on a charge that it acted as a political committee by coordinating its efforts with other groups, particularly Texans for a Republican Majority, a political committee created by then-U.S. House Majority Leader Tom DeLay.

Lynch, however, ruled Friday that coordination is not a crime defined by state law.

"The District Attorney, as he eloquently stated at multiple hearings, fervently believes the Defendant has unfairly attempted to subvert the free electoral process," Lynch wrote.

The judge said he would make no judgment on Earle's view but concluded: "Even assuming he is correct, these statutes and this indictment aren't equipped to do the job. You simply cannot make a silk purse out of this sow's ear."

No matter what happens in the criminal cases, a civil lawsuit against the business association and Austin lobbyist Mike Toomey, arising from the same events in 2002, must be tried, a different judge ruled earlier this month.

As before, I understand and largely agree with Judge Lynch's rationale, I just think it's a travesty that the law isn't more specific on this point. And I don't suppose we're any closer to getting that rectified now than we were in June of 2006, when Judge Lynch first made this ruling. I've got more on the TAB civil suit here.

Posted by Charles Kuffner on September 02, 2007 to Scandalized!