October 17, 2005, 8:25 a.m.
Career Criminalizer
What the Earle of Austin has done.

EDITOR'S NOTE: This piece appears in the October 24, 2005, issue of National Review.

In 2002, Republicans took control of the Texas house for the first time since Reconstruction, setting in motion a process of congressional redistricting that led to the addition of five Republicans to the state's U.S. House delegation. Shortly after the 2002 elections, Travis County district attorney Ronnie Earle launched an investigation that would touch nearly every Republican involved in the 2002 takeover. After almost three years and six grand juries, Earle has succeeded in what he set out to do: He has indicted House majority leader Tom DeLay, the man many Texas Democrats hold responsible for the 2002 takeover and the subsequent redistricting. In the process, he has used abstruse campaign-finance laws to criminalize his political opponents — and demonstrated that these laws should be repealed.

In the months leading up to the 2002 elections, a group called the Texas Association of Business (TAB) put out a series of advertisements and mailers addressing the positions of various state legislative candidates on business issues. The ads avoided using words like "elect," "vote for," "reject," etc. — the magic words that, according to court rulings, change legal "issue advocacy" into illegal "express advocacy." Instead, the group said things like "Ann Kitchen voted 'NO' on giving the reading test next year" and "When it comes to questions about health care . . . can you trust Raul Prado?"

These ads got the attention of Earle, an elected Democrat — especially after fellow Democrats like Kitchen and Prado lost their races and the Republicans won control of the Texas house. In January 2003, the Austin American-Statesman reported that Earle had launched an investigation into the financing of the ads. At issue was whether the TAB had used corporate contributions to fund them — a likely proposition, given the group's membership. Under Texas law, corporations are forbidden to contribute to political campaigns. The TAB maintained that its ads were issue-oriented because they did not expressly advocate the election or defeat of any candidate, and were therefore protected under the First Amendment.

First, Earle went after the TAB's list of donors...

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