Center for Competitive Politics Files Amicus Brief in DeLay Appeal

Contact: Sarah Lee, Center for Competitive Politics, 703-894-6800,

Allen Dickerson, Legal Director, Center for Competitive Politics,

Benjamin Barr, of counsel, Center for Competitive Politics,

ALEXANDRIA, Va. – Arguing that laws criminalizing First Amendment conduct must at least be clear, the Center for Competitive Politics filed an amicus brief in the Texas Court of Appeals in DeLay v. State.  

For nearly a decade, Tom DeLay and his colleagues have been involved in a legal challenge concerning the constitutionality of the Texas Election Code.  The case centers on a complaint filed by Texans for Public Justice alleging that even though DeLay and his associates complied with relevant provisions of Texas election law, their use of election funds was somehow illegal.  

The appeal involves a question about the validity of what are popularly termed “money swaps.”  These occurred frequently in Texas and nationally where certain funds donated to a state organization were “swapped” for other funds donated by a national organization.  What most election law experts called an accepted practice, the State of Texas called money laundering. 

Prosecutors cannot swoop into the midst of an electoral season and invent new violations out of existing law.  But that’s exactly what Texas did.  The Center’s brief argues that the vagueness doctrine protects against exactly this sort of abuse and highlights the importance of having clearly established rules to protect First Amendment freedoms.  Without this protection, civic-minded Texans would have to stay out of public political debate for fear of criminal prosecution.

Following its win in Carey v. FEC, the Center’s brief also demonstrates that the “Carey Cure” is sufficient to protect against any circumvention concerns.  Most recent election law challenges have illustrated that the maintenance of separate, segregated accounts adequately protects against corruption.  Since DeLay and others legitimately managed their affairs in this way, no government interest could be found to criminalize their conduct. 

“The rights of robust political speech and association must remain at the core of the First Amendment,” explained Benjamin Barr, of counsel to the Center for Competitive Politics and Wyoming Liberty Group, which is also involved in the challenge.  “In the DeLay appeal, we witness politically-minded Texans caught up in byzantine election code violations drummed up out of prosecutorial alchemy.  Our brief helps illustrate why all Texans deserve clear cut First Amendment protection.” 

“The government has a responsibility to articulate a clear, compelling interest before it regulates political speech,” said CCP Legal Director Allen Dickerson. “This brief furthers our work in previous cases, like Carey and, to require the state to set clear and constitutional rules of the road, and to limit its regulations to the prevention of actual corruption.”

No oral argument or disposition date has been set for the appeal.  CCP will monitor the case as it advances.




The Center for Competitive Politics is now the Institute for Free Speech.