{"id":974734,"date":"2023-01-30T11:56:09","date_gmt":"2023-01-30T11:56:09","guid":{"rendered":"https:\/\/jacobin.com\/2023\/01\/kelcy-warren-beto-orourke-defamation-suit-texas-supreme-court-campaign-finance\/"},"modified":"2023-01-30T11:58:19","modified_gmt":"2023-01-30T11:58:19","slug":"in-a-major-free-speech-case-a-billionaire-funded-the-judges-who-could-decide-in-his-favor","status":"publish","type":"post","link":"https:\/\/radiofree.asia\/2023\/01\/30\/in-a-major-free-speech-case-a-billionaire-funded-the-judges-who-could-decide-in-his-favor\/","title":{"rendered":"In a Major Free-Speech Case, a Billionaire Funded the Judges Who Could Decide in His Favor"},"content":{"rendered":"\n \n\n\n\n

Billionaire Kelcy Warren has sued Beto O\u2019Rourke for defamation over old campaign ads. Judges who could be presiding over the case have previously taken election funds from Warren, making a ruling for Warren \u2014 and against free speech \u2014 more likely.<\/h3>\n\n\n
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\n Kelcy Warren, chairman and chief executive officer of Energy Transfer Partners LP, speaks during the 2018 CERAWeek by IHS Markit conference in Houston, Texas, on March 7, 2018. (F. Carter Smith \/ Bloomberg via Getty Images)\n <\/figcaption> \n<\/figure>\n\n\n\n\n \n

A lawsuit that could punish speech against wealthy political donors may ultimately land before judges who have accepted campaign donations from the billionaire bringing the case, a Lever<\/em> review has found. The plaintiff\u2019s fossil fuel company has also delivered money to political groups who boosted those judges\u2019 election bids.<\/p>\n

Kelcy Warren, who controls the company behind the controversial Dakota Access Pipeline<\/a> and has a net worth of $5.3 billion<\/a>, is suing former congressman Beto O\u2019Rourke over campaign comments made about him in a case that could set a new legal precedent for financially punishing political candidates who criticize billionaires\u2019 political spending.<\/p>\n

On January 20, we reported<\/a> on Warren\u2019s lawsuit, which alleges that he was defamed when O\u2019Rourke impugned his $1 million donation to Republican Texas governor Greg Abbott, which was made weeks after the governor signed legislation allowing natural gas companies like Warren\u2019s to opt out of weatherization regulations.<\/p>\n

If Warren appeals a negative ruling in the lower court, the case could head to the Texas Supreme Court \u2014 where three justices have received direct campaign contributions from Warren.<\/p>\n

What\u2019s more, Warren and his company, Energy Transfer Partners, have spent $1 million financing super PACs supporting successful candidates for that court. One of those super PACs has recently drawn scrutiny for influencing judicial decisions in Texas.<\/p>\n

If he wins, Warren could score a landmark victory for wealthy political donors to influence elections, while insulating them from scrutiny over their influence.<\/p>\n\n \n\n \n \n \n

Is a Billionaire Executive Chairman a Public Person?<\/h2>\n \n

Warren is a savvy businessman with a ruthless sense for profit, building Dallas-based Energy Transfer Partners into a $40 billion<\/a> company over forty years in the oil and gas business. Energy Transfer Partners has 120,000 miles<\/a> of pipes and brags<\/a> that it moves \u201cnearly 30 percent of the natural gas and oil produced in the United States.\u201d Warren is also a longtime political donor.<\/p>\n

In February 2022, Warren sued O\u2019Rourke over comments the former congressman made in his campaign to unseat Abbott. O\u2019Rourke had suggested there was a link between the $1 million<\/a> donation Warren gave to Abbott and a law Abbott signed that allowed gas companies like Energy Transfer to opt out of winterization requirements designed to help prevent blackouts during major storms. (Warren had previously donated $1.4 million to Abbott\u2019s campaigns over the past two decades.)<\/p>\n

Abbott signed the legislation<\/a> in June 2021, a few months after Winter Storm Uri ravaged Texas, resulting in hundreds of deaths. Energy Transfer announced in May 2021 that the company had earned $2.4 billion in windfall profits during the storm. Electricity spiked by nearly 30,000 percent and natural gas skyrocketed by more than 16,500 percent during the storm.<\/p>\n

According to Warren\u2019s suit, O\u2019Rourke had defamed him by making comments like, \u201cKelcy Warren and Greg Abbott want us to stop talking about how Warren\u2019s company made over $2 billion in profits while Texans were freezing to death, and then turned around and gave $1 million to Abbott\u2019s campaign,\u201d as O\u2019Rourke told<\/a> the Dallas Morning News<\/em> in March 2022.<\/p>\n

Debate in the case has focused on O\u2019Rourke\u2019s usage of the term \u201cbribe\u201d to describe Warren\u2019s $1 million donation. O\u2019Rourke\u2019s attorney, Chad Dunn, said in a brief<\/a> that it was used in \u201cits nondefamatory colloquial sense.\u201d<\/p>\n

Jane Kirtley, a professor of media ethics at the University of Minnesota\u2019s law school, pointed out, \u201cThe Supreme Court of the US has stated that hyperbolic speech in the political back and forth is expected, it\u2019s the American way.\u201d<\/p>\n

Warren\u2019s case could reverberate beyond Texas and help set a nationwide precedent about who courts determine is a \u201climited-purpose public figure.\u201d<\/p>\n

In a 1974 case<\/a>, the Supreme Court defined \u201climited-purpose public figure\u201d as a person who<\/a> \u201cvoluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues.\u201d<\/p>\n

If the courts determine Warren is such a public figure, then Warren will have to reach a high bar to prove O\u2019Rourke had \u201cactual malice\u201d when making his statements about Warren and Abbott.<\/p>\n

But if the courts determine that Warren is simply a private person, the plaintiff will be held to a much lower standard, and only has to prove O\u2019Rourke was guilty of \u201cnegligence.\u201d<\/p>\n

Warren and his legal team are arguing that, despite him being a mega donor and billionaire executive chairman of a publicly traded Fortune 500 company, the oil magnate is a private person under libel law. Warren\u2019s position was summarized by his attorney, Dean Pamphilis of Kasowitz, Benson, and Torres, a firm led by former president Donald Trump\u2019s longtime lawyer Marc Kasowitz<\/a>.<\/p>\n

\u201cWhat they\u2019re asking you to do here is to conclude that a million-dollar \u2014 or any \u2014 campaign contribution makes you a public figure, opens you up to attack that you can\u2019t defend against unless you prove actual malice, and there is no precedent for that whatsoever,\u201d said Pamphilis in a hearing<\/a> before the Third Circuit on December 7.<\/p>\n

Beneath that argument is an attempt to craft an aggressive new legal doctrine: that huge campaign contributions should not subject billionaires to additional scrutiny, and that it should be far easier for billionaires to sue over political statements made about their campaign contributions.<\/p>\n

\u201cIf I had to characterize this suit, I would call it a SLAPP suit,\u201d asserted Kirtley. \u201cIt\u2019s being brought to silence criticism and commentary about what this individual has done.\u201d SLAPP suits, an acronym for \u201cstrategic lawsuits against public participation,\u201d seek to crush free debate by silencing critics using defamation and libel law.<\/p>\n

While Texas has an anti-SLAPP law, Abbott in 2019 signed legislation<\/a> weakening it, limiting the ways in which a defendant can seek to have a case dismissed.<\/p>\n\n \n \n \n

Kelcy Warren\u2019s Money Trail<\/h2>\n \n

Warren\u2019s lawsuit is widely expected to fail in the court where the lawsuit is currently lodged \u2014 Texas\u2019s Third Circuit Court of Appeals, which is made up<\/a> of Democrats.<\/p>\n

But the outcome of the suit is much less certain if it reaches Texas\u2019s all-Republican Supreme Court, where six of the nine justices have either been backed by generous campaign contributions from Warren or by groups funded by the company Warren leads.<\/p>\n

Dunn, O\u2019Rourke\u2019s attorney, said in a statement to us that \u201cthe matter is likely to be before the Texas Supreme Court.\u201d<\/p>\n

On the court sit Justices John Philip Devine, Jimmy Blacklock, and Brett Busby, who have received $6,250 in direct campaign contributions from Warren. Unlike federal judges and many state supreme court justices that are appointed, Texas supreme court justices are elected statewide for staggered six-year terms.<\/p>\n

Warren\u2019s company Energy Transfer additionally gave $1 million to a federal super PAC called Engage Texas<\/a>, which in turn funded the Engage Texas state PAC<\/a>, which then bankrolled<\/a> the Judicial Fairness PAC<\/a>, which spent $750,000<\/a> backing the GOP\u2019s Texas supreme court candidates \u2014 Justices Jeffrey Boyd, Brett Busby, Nathan Hecht, and Jane Bland \u2014 in the 2020 election.<\/p>\n

Judicial Fairness PAC was also at the center of a recent influence-peddling scandal at the Texas Supreme Court. On October 2, 2020, the court rejected<\/a> an appeal of a lower court decision affirming a $900,000 judgment against Apache Corp, a Fortune 500 oil exploration firm based in Houston, over a gender discrimination case. Then, on October 26, 2020, Apache pumped $250,000<\/a> into Judicial Fairness PAC, the same PAC indirectly supported by Energy Transfer. On June 25, 2021, the court reversed<\/a> their prior decision and vacated the judgment against Apache.<\/p>\n

Two of the four justices the PAC had supported in the 2020 election recused<\/a> themselves because they had worked on the case prior to reaching the high court. The other two did not recuse themselves. Texas rules<\/a> do not mention campaign contributions as it relates to recusal, and just six<\/a> of forty-two states with judicial elections for appellate judges restrict judges\u2019 ability to decide for themselves whether to recuse when they have received campaign contributions from litigants or their attorneys. The Texas rules do mandate recusal when \u201cthe judge\u2019s impartiality might reasonably be questioned.\u201d<\/p>\n

Energy Transfer has given $340,000 to the Republican State Leadership Committee (RSLC) since 2018 (and $200,000 during 2020 election cycle), and RSLC gave $300,000 to the Texas-based Judicial Fairness PAC during the 2020 election cycle as it supported<\/a> the Texas supreme court campaigns with independent expenditures.<\/p>\n\n \n \n \n

\u201cJudges\u2019 Decisions May Be Motivated by the Desire to Repay Campaign Contributors\u201d<\/h2>\n \n

Legal experts say that Warren\u2019s backing of Texas supreme court justices could put the court in a position of banning criticism of its own decisions by ruling in favor of Warren.<\/p>\n

Warren and Energy Transfer Partners\u2019 support of candidates for the Texas Supreme Court \u201conly underscores the need for people to be able to speak freely about campaign contributions,\u201d speech that Warren is seeking to chill through his lawsuit, said Seth Stern, a First Amendment lawyer and advocacy director of the Freedom of the Press Foundation, which advocates for journalist rights. \u201cThe press and public are entitled to discuss the functioning of the judiciary.\u201d<\/p>\n

He added that the Texas supreme court ruling in favor of Warren\u2019s lawsuit \u201cwould cut against the public\u2019s ability to discuss and the press\u2019 ability to cover matters of great public importance, including matters before the Texas Supreme Court.\u201d<\/p>\n

Kirtley, the law professor, told us that the \u201cquestion of who gives money to judges and with what set of expectations is a good one. To stifle that, it\u2019s not a good thing, it doesn\u2019t embrace transparency or citizen participation. Putting names and affiliations on campaign finance donations is important to telling the whole story. What it sounds like to me is this individual doesn\u2019t want this story to be told.\u201d<\/p>\n

The case could ultimately be appealed to the US Supreme Court, which has previously raised concerns about the reams of money flowing into judicial races around the country. In the 2019 and 2020 cycles, $97 million flowed into statewide judicial races, according to data collected<\/a> by the Brennan Center for Justice at New York University\u2019s law school.<\/p>\n

Former justice Sandra Day O\u2019Connor wrote in a 2002 decision that \u201cEven if judges were able to refrain from favoring donors, the mere possibility that judges\u2019 decisions may be motivated by the desire to repay campaign contributors is likely to undermine the public\u2019s confidence in the judiciary.\u201d<\/p>\n

In a 2009 case involving former Massey Energy CEO Don Blankenship\u2019s efforts to influence the state judiciary, former justice Anthony Kennedy wrote<\/a> for the majority that \u201cthere is a serious risk of actual bias \u2014 based on objective and reasonable perceptions \u2014 when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge\u2019s election campaign when the case was pending or imminent.\u201d<\/p>\n

That said, with O\u2019Connor and Kennedy replaced by Samuel Alito and Brett Kavanaugh, the new six-three court dominated by conservatives could prove more favorable for Warren.<\/p>\n

Three of the court\u2019s nine justices were appointed by Trump. Warren donated $10 million<\/a> to America First Action, a pro-Trump super PAC, in August 2020, making him the group\u2019s fourth-largest donor. The fossil fuel executive has also hosted<\/a> fundraisers for Trump at his Dallas home.<\/p>\n\n \n \n \n\n \n \n

You can subscribe to David Sirota\u2019s investigative journalism project, the\u00a0Lever<\/i>,\u00a0here<\/a>.<\/p>\n\n\n\n

This post was originally published on Jacobin<\/a>. <\/p>","protected":false},"excerpt":{"rendered":"

A lawsuit that could punish speech against wealthy political donors may ultimately land before judges who have accepted campaign donations from the billionaire bringing the case, a Lever review has found. The plaintiff\u2019s fossil fuel company has also delivered money to political groups who boosted those judges\u2019 election bids. Kelcy Warren, who controls the company [\u2026]<\/p>\n","protected":false},"author":138,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[],"tags":[],"_links":{"self":[{"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/posts\/974734"}],"collection":[{"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/users\/138"}],"replies":[{"embeddable":true,"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/comments?post=974734"}],"version-history":[{"count":1,"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/posts\/974734\/revisions"}],"predecessor-version":[{"id":974735,"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/posts\/974734\/revisions\/974735"}],"wp:attachment":[{"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/media?parent=974734"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/categories?post=974734"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/tags?post=974734"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}