DeLay's Fundraising Practices: Crossing the Line?

Former House Majority Leader Tom DeLay will appear in court next month after an indictment this week for conspiring to commit campaign finance fraud. Delay says the crime he is accused of was common practice. Renee Montagne talks to Kenneth Gross, a former head of enforcement at the Federal Election Commission.

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RENEE MONTAGNE, host:

This is MORNING EDITION from NPR News. With Steve Inskeep, I'm Renee Montagne.

A Texas judge has ordered former House Majority Leader Tom DeLay to appear in court next month. The Republican congressman was indicted this week for conspiring to commit campaign finance fraud. DeLay says he did nothing wrong and that the crime he is accused of was common practice. To learn whether Tom DeLay has a point, we reached Kenneth Gross. He has served as chief of enforcement at the Federal Election Commission.

Good morning.

Mr. KENNETH GROSS (Federal Election Commission): Good morning, Renee.

MONTAGNE: And Tom DeLay said, and I'm quoting here, "I have done nothing unlawful, unethical or, I might add, unprecedented." And that's Tom DeLay. Remind us what he is accused of and is he right that what happened is common practice?

Mr. GROSS: Well, he's accused of conspiring with two other individuals of funnelling into the state of Texas corporate money, money that was raised in Washington from major corporations and then sent through the Republican National Committee or a state account of the committee and then having that committee put into the state--to state elections corporate money. And under Texas law, corporate contributions are illegal. That's the gist of the allegation against Mr. DeLay and his two associates.

MONTAGNE: And is that sort of thing a common practice?

Mr. GROSS: Well, what he's getting at--and, of course, we don't really know all the facts. We are aware of the grand jury indictment, and I have seen documents related to the case. What he is getting at and what has been common practice is that before the McCain-Feingold legislation that went into effect in 2002, corporate money did go into the Republican National Committee--and for that matter, the Democratic National Committee--into one bucket, the corporate bucket, if you will, and other money out of the non-corporate bucket would go into states where corporate contributions were prohibited. So that has been the practice prior to a change in the law and had been the practice prior to the change in the law in 2002.

MONTAGNE: So that's sort of how it happened, as you said, Texas prohibits corporate money--corporate donations. So they sort of moved--the allegation here is it's moved from bucket to bucket.

Mr. GROSS: Exactly. It went into one bucket and it came out another bucket.

MONTAGNE: Is laundered an appropriate term in terms of the allegations?

Mr. GROSS: Well, that's a term that prosecutors like to use, that the money was laundered. But the--you know, under old practices, money would go into one account and out another. The question is whether it would--whether it was earmarked, whether there was testimony, whether they have further facts to show that the money--that they can make a case of laundering, which is essentially what they're getting at here.

MONTAGNE: Well, does the `everyone does it' defense mean that in this case, or in a case, it wouldn't be found illegal?

Mr. GROSS: Well, that's a very good question. Not necessarily. You know, this practice had not been tested in many cases. It was accepted as something that the committees could do. Now you're in a particular state. I mean, if the `everybody else is doing it' defense works, then I'm in big trouble because I have a teen-ager. I've heard that many times. But the practice, you know, may be viewed differently by a particular jury in a particular state if a prosecutor is able to put the case together with the right facts.

MONTAGNE: And amongst those facts, what are the weaknesses in that prosecutor's case?

Mr. GROSS: Well, the prosecutor has two hurdles in this case regarding Congressman DeLay. One, he has to make this case that we're talking about, that this exchange of corporate money going into one bucket and non-corporate money coming out into the state is, in fact, a violation, not only a violation of law, but a crime, one that, you know, has a sufficient element of corruption; and, secondly, that Mr. DeLay, as a conspirator, was involved in it. The indictment does not allege that he himself was transferring the money, that his fingerprints are on the money, if you will. It says that he had fingerprints on the people who were doing it. So really in the case of DeLay, there are two hurdles for prosecution and conviction by the prosecutor.

MONTAGNE: Well, thank you very much for joining us and helping us out here with this.

Mr. GROSS: Sure.

MONTAGNE: Kenneth Gross was associate general counsel and head of enforcement at the Federal Election Commission.

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