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Whatever verdict a jury ultimately returns, House Majority Leader Tom DeLay, R-Texas, misses the mark by attempting to dismiss his recent indictments on criminal campaign finance violations and money laundering charges as minor and political. The dominant role of corporate money in American politics today is not a minor issue. And the fact that such a significant issue had to be brought by a local county district attorney may be, as DeLay’s lawyer put it, “skunky,” but the stench is not coming from the Travis County DA’s office. It comes from Congress and the expensive, toothless federal bureaucracy that has so utterly failed to control this growing problem. Corporate money has taken over our political system. Corporate political action committees (PACs) raise hundreds of millions of dollars each election cycle. The result is increased voter cynicism, decreased access to the process and the corrupting influence of big money. The Federal Election Commission (FEC), supposedly working to increase fairness and access, has an annual budget of $55 million. Yet the FEC is a disgrace, mired in politics and unwilling or unable to act. Each year, DeLay’s Congress throws millions of dollars at a regulatory system its members know is a sham. The Texas ban Some states have tried to step in where the federal government has failed. Texas law essentially bans corporate campaign contributions in state elections. However, DeLay and his friends wanted to get more Republicans elected to the Texas House of Representatives so they could, in turn, gerrymander the districts to get more Republicans elected to Congress. So they are alleged to have laundered corporate money through the out-of-control federal system. One of the ways they did it, according to the recent indictments, was to funnel $190,000 in corporate contributions from DeLay’s state PAC to an arm of the Republican National Committee. The RNC then funneled money directly back to the state legislature candidates that Delay’s PAC directed it to support. (The indictment even includes a copy of the check made out to the RNC.) The indictments charge that this was simply money laundering, a scam to use the federal system to cover up contributions they knew were illegal in Texas. All together, $600,000 in illegal corporate contributions were allegedly laundered through various individuals in Texas. That can wield a lot of influence in tight state legislative races. In grand, Texas-style language, DeLay and his supporters have attacked both the indictments and the DA. But the issue of corporate political cash cannot be so easily dismissed. Some have argued that corporations have a First Amendment free speech right to be involved in politics this way. DeLay himself has made just such arguments, railing against restrictions on the rights of “groups to speak freely” as “the tool of tyranny.” That’s nonsense. The First Amendment, like the rest of the Constitution, was intended to protect “We the People.” Corporations are not people; they are legal fictions. We the people created them, and we are free to regulate them. Ironically, we have an enormous body of law to protect us from corporations gaining too much influence in the financial marketplace. It’s called antitrust. But we have little law to protect us from their having too much influence in the political marketplace. Drowning out voices We allow big corporations like Sears, Roebuck and Co. (one of the corporate givers here) to exist in part to allow many individuals to aggregate their money to finance business ventures. But that aggregation makes them unfair and inappropriate participants in politics. The average voter, no matter how well intentioned, cannot compete with a Sears, whose principal political interest is naturally to use its money to make more money. Individual voices are drowned out in the flood of corporate cash. The result is not just a badly distorted political system; it is increasing voter apathy and cynicism. It is one reason why only about one-half of those eligible to vote actually do so-a number many other democracies would consider disgraceful. Meanwhile, even many of those who make the effort are deeply alienated. There are still miles to go in the case. Legally, the second indictment is a “safety valve” to address same of the challenges that were raised to the initial theory. Factually, the indictments do not make clear what the government’s proof is linking DeLay to the crime itself. Most good politicians are very experienced at insulating themselves from ugly or difficult tasks, and we have yet to see how well DeLay did this here. There will be more bumps along this long, hard road, but it is a journey that is essential to our future as a free and open democracy. DeLay is correct in one sense: It should not be left to an elected partisan county DA to take on such an important problem. But then it should not have been left to one elected partisan state attorney general to take on the problems of corporate greed and governance. Yet most people are thankful that New York Attorney General Eliot Spitzer did just that when he took on the tired and ineffective bureaucracy at the Securities and Exchange Commission. The FEC, with the added layer of a political morass, is even worse. Someone has to step forward to start the long process of rooting out the stench of corporate money and influence from politics. If it takes a “skunk” to do it, let’s all root for the skunk. Dan Small is a partner in the Miami office of Philadelphia’s Duane Morris. He is a former federal corruption prosecutor, and was special counsel to the Massachusetts House Ethics Committee and the Rhode Island Ethics Committee. He is the author of several American Bar Association books on litigation, including Preparing Witnesses (2d ed. 2004).

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