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Meanwhile, in that other case…

Capitol Inside offers its perspective on the Democratic lawsuit over the GOP’s attempt to replace Tom DeLay on the ballot in CD22 and how both sides’ arguments played for Judge Sam Sparks.

Democrats suggested in a hearing in Sparks’ court on their request for a permanent injunction that they’d prefer to beat DeLay at the polls in a full-fledged race than have him take an easier way out that allows him to keep his winning record intact and minimizes the GOP’s odds of losing the seat. The last thing the Democrats want is for CD 22 nominee Nick Lampson to have to switch gears to run against a replacement Republican candidate who isn’t out on bail with the burden of a radioactive reputation and other baggage like DeLay would have to lug down the campaign trail. Democrats who had roles as lawyers and witnesses in Sparks’ court hearing agreed that fundraising, volunteer efforts and turnout for the CD 22 battle will suffer without a lightening rod like DeLay in the race for motivational value. Despite the tough talk about ousting their chief nemesis from a Republican House he helped build, the Democrats should be hoping that the GOP can’t replace DeLay and that he officially withdraws from the race or refuses to campaign even if he’s listed as a candidate on the ballot this fall.

While the two sides highly disagree on whether DeLay withdrew from the congressional race or simply became ineligible to run as a result of his move to George Washington’s home state, the Republicans seem to want to replace DeLay as the CD 22 nominee as badly as Democrats want to prevent them from doing so. A lawyer for the Democrats called DeLay’s dropping out of the race “a constructive withdrawal,” but Republicans in the courtroom seemed to be saying that such a scenario had never really entered their minds. After being told by DeLay that he wouldn’t be eligible to run in the general election because he planned to give up his House seat after moving to Virginia, Republican officials left the impression that they’d been following a technical instructions manual on election procedures when initiating the replacement process.

Sparks, who was appointed to the bench 15 years ago by the original President George Bush, didn’t seem to have much sympathy for the Democrats. But the judge indicated during the hearing that he found State GOP Chairwoman Tina Benkiser’s testimony “somewhat amazing” when she suggested that there’d been no discussion about the conflicting consequences of a candidate withdrawing from a race as opposed to being deemed ineligible to run. Sparks seemed to be able to find the Democrats more believable because they made no bones about admitting that their motivations for being there were purely self-serving while Republicans were suggesting that were simply trying to abide by election law without any agenda at hand. Sparks didn’t appear to buy that. While the judge seemed to be hinting that he wouldn’t be blessing the GOP’s move to replace DeLay on the ballot, he indicated that an official ruling would not be issued before next week.

[…]

The Democrats appear to have a fair chance at prevailing in Sparks’ court after agreeing with the state GOP’s request to move it there from a state district court that issued a temporary restraining order that put the replacement process on hold this month. Republicans may have helped the Democrats’ case when they seemed to have no problem with DeLay remaining in Congress, casting votes and sponsoring legislation for almost two months between the time he moved to Virginia and resigned from the House. But winning the ballot battle doesn’t assure Democrats that they will win the election in CD 22 if DeLay stays on the ballot. It’s a calculated risk at best that could backfire. On the other hand, DeLay could return to Texas and make a gallant effort to win back the seat that he gave up this month because he’s too proud, too mad or too determined to keep his old seat from being turned over to Democrats on a silver platter.

Couple of points here:

– I still think it was an error for Democrats to mention fundraising and turnout in any context in this case. It’s irrelevant, it’s self-serving (even if the Dems’ nakedness on that score was less offensive than the Republicans’ we’re-just-following-procedure malarkey was to Judge Sparks), and frankly it looks bad. This case is about the circumstances under which a candidate who has already won his or her party’s primary can withdraw, which Sparks said is what DeLay did, and be replaced on the ballot. As Rick Casey noted, you’ve got your choice of death, “a catastrophic illness that was diagnosed after the 62nd day before general primary election day” that would “permanently and continuously incapacitate the candidate and prevent the candidate from performing the duties of the office sought”, and being appointed to or nominated for another office. DeLay meets none of these criteria, and the “ineligibility” fig leaf is laughable. Pound those points until your fists hurt.

– On the issue of Republicans not having any problems with DeLay’s continued activities as a Congressman, I wonder if they have any problem with this?

Not even retirement can keep former House Majority Leader Tom DeLay (R-Texas) from the game he loves so much.

Since his resignation from the House this month, DeLay has held at least two meetings with his old friend and political ally House Speaker Dennis Hastert (R-Ill.).

The two met yesterday afternoon in Hastert’s office, and last week DeLay attended a regular gathering of former House leaders in the Speaker’s Capitol suite.

Hastert and his former majority leader held weekly lunch meetings when DeLay was in the leadership and kept them up after the Texan was forced to resign his post.

The Speaker declined to say what the two old colleagues discussed during their afternoon chat but later joked, “It was a nonpolitical, non-legislative discussion, as much as that can be with DeLay.”

When is a Congressman not a Congressman? Link via MyDD.

– Remember, the Republicans wanted this case moved to federal court. They crowed about getting the case moved there. If Judge Sparks rules against them, what will their excuse be?

– Having said all of this, I’m still not convinced that I want the Dems to prevail here. Forcing the GOP to put DeLay back on the ballot may work brilliantly, but it may also be the clearest example of “be careful what you wish for” you’ll ever see. You know how sometimes when you’re undecided on something it’s best to flip a coin, because you find yourself rooting for one side or the other to come up? I’m rooting for the coin to roll under the couch and get lost.

One more thing:

If DeLay resurrected his campaign three things could happen. He could win. He could lose. Or he could lose badly enough to hurt the entire Republican ticket because he’s been villainized more than any candidate ever. DeLay would have to juggle a campaign with the distraction of a criminal case that came about as part an investigation into the 2002 state House elections that made possible the redistricting effort that he masterminded. There’s also the potential problem of probes on the federal level into lobbyists and other former DeLay staffers and associates.

Despite DeLay’s predictions when he first announced his resignation, Ronnie Earle has not dropped the charges against him. I’ve lost track of where we are in the process, but for sure the trial will be in the news between now and November. Just another thing to keep in mind.

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3 Comments

  1. Kevin Whited says:

    I still think it was an error for Democrats to mention fundraising and turnout in any context in this case. It’s irrelevant, it’s self-serving (even if the Dems’ nakedness on that score was less offensive than the Republicans’ we’re-just-following-procedure malarkey was to Judge Sparks), and frankly it looks bad.

    All true! It was a bad choice of political rhetoric, even thought it was frank and honest. While I like frank and honest, sometimes the best response politically is not to say anything.

    This case is about the circumstances under which a candidate who has already won his or her party’s primary can withdraw, which Sparks said is what DeLay did, and be replaced on the ballot.

    Well, obviously it’s about other things to certain Dem leaders, who admitted as much. While their rhetoric was ill-advised, it was not inaccurate. They should pay heed to your advice that rhetorically, they should stick to the talking points you suggest, but nobody should confuse those talking points for the reality of the politics.

  2. Dennis says:

    For what it is worth, I think it obvious that the most entertaining aspect of this whole situation has yet to emerge. Assuming the Democrats prevail, DeLay would remain on the ballot. Now, would he let Lampson just walk off with his old seat – especially after the Supreme Court just handed him a victory in the redistricting case – or would he change his mind about retiring / moving and come back to run again for the job he just left? This is going to be very interesting!

  3. Antinome says:

    “Democrats who had roles as lawyers and witnesses in Sparks’ court hearing agreed that fundraising, volunteer efforts and turnout for the CD 22 battle will suffer without a lightening rod like DeLay in the race for motivational value.”

    While I am just speculating, I suspect that this agreement was done either under under cross examination or done as an effort to pre-empt cross examination.

    The inevitable question: Republican lawyer: Isn’t it true that fundraising, volunteer efforts and turnout for the CD 22 battle will suffer without a lightning rod like DeLay in the race for motivational value.

    Democrat Witness: Yes (the only reasonable answer,though arguably they could have answered something like “well Delay is a lightning rod on both sides”)

    So either the question was asked on cross or possibly it came initially from the Democrat lawyer to admit the rather obvious General rule is always admit your potiential bias ahead of time, you gain credibility as a witness.

    ‘Sure judge we stand to benefit, but that s not what is at issue, the law is what is at issue’

    Personally I think the Republicans would have been better off indicating they recognized the the legal difference and the purported loophole. No one believes Delay moved to Virginia for any other reason than to exploit the wording of the law. Sometimes the law allows you to do that.