Politically Charged .org

What you need to know about reckless prosecutors

A state district judge today threw out a felony indictment against the Texas Association of Business, saying the group's controversial 2002 ads were not political ads expressly advocating the election or defeat of Texas candidates.

The decision by Travis County District Judge Mike Lynch dealt a severe blow to the four-year prosecution of the statewide business group that always contended its ads were not political.

Lynch's decision is the first judicial ruling on TAB's ads and could affect other felony indictments against the association.

TAB's lawyer Roy Minton of Austin said he believes the judge's order might end the four-year prosecution altogether, including other indictments pending against the group.

"I believe the basic position the court has taken is going to make it very difficult, if not impossible, for the state to prosecute TAB," said Minton.

Prosecutors could not be immediately reached for comment.

In 2002, TAB spent about $1.7 million on what it called "issue ads" sent to voters in about two dozen legislative districts. The ads supported Republican candidates and criticized Democrats but never used words such as "support" or "oppose." That, according to TAB's lawyers, means the association didn't have to disclose the donors — later revealed to be corporations and insurance companies — to the public.

The indictment accused TAB of violating the state election code that bars spending corporate money in connection with a campaign.

If the ads are not express advocacy, Lynch ruled TAB cannot be prosecuted for violating the state election code.

In his order, Lynch wrote that "these exhibits consist of political ads that severely test, but do not cross, the line of express advocacy as that term was defined by the courts at the time the ads were placed."

The judge also rejected the prosecution's alternative theory that TAB became a de facto political action committee by coordinating its 2002 efforts with other political groups. Lynch said the law does not cover that theory.

"The convoluted maze through which the State asks that we proceed in order to reach that conclusion defies the important rules designed to insure fairness and certainty in criminal laws," according to the judge's order.

While Lynch said Travis County District Attorney Ronnie Earle "eloquently" argued that the business group unfairly attempted to subvert the electoral process, he concluded, "It's not this Court's job, nor does the Court in this decision reach any judgment on that view. Even assuming he's 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."

The prosecution of the business group was related to the prosecution of the Texans for a Republican Majority Political Action Committee and its founder, former U.S. Rep. Tom DeLay, who resigned from Congress after he was indicted on charges stemming from the 2002 campaign.