This earlier post noted the weak nature of the indictment against former House Speaker Tom DeLay, although the Republican outrage over the indictment rings somewhat hollow. But following up on the thought about the dubious basis of the indictment, former chairman of the Federal Election Commission, Bradley A. Smith, does the best job that I have seen to date of disassembling the case against DeLay in this Wall Street Journal ($) op-ed:

To summarize, the theory against Mr. DeLay goes something like this: Corporations made legal contributions to TRMPAC; and then TRMPAC made a legal contribution of this soft money to the RNSEC, which, as required by federal law, kept the funds in a separate account. The RNSEC then used an account containing individual contributions (hard money) to make otherwise legal contributions to 42 candidates for state or local office in Texas, including seven who may have been specifically recommended to them by Mr. DeLay and others. Somehow this series of legal transactions constitutes money laundering.

Two questions result. First, is it “laundering” when the law specifically allows corporate contributions to be used for administrative costs, and a party or PAC uses individual contributions thereby freed up to make increased candidate contributions? Second, even if so, in light of the unprosecuted and public ubiquity of the practice, on both state and federal levels, is it consistent with basic due process to now charge Mr. DeLay and his associates with a crime for which the possible penalties include life imprisonment?

Read the entire piece, which does an excellent job of explaining how politicians from both major parties routinely took advantage of loopholes in state and federal campaign finance law to engage in precisely the same conduct for which DeLay now stands indicted. This is the flipside of the same coin that reflects the increasing criminalization of merely questionable business transactions in the post-Enron era, a trend that has already resulted in grave injustices and daunting prosecutorial misconduct. If litigation over such issues is justified at all, these matters are best left for civil cases, where responsibility for any wrongdoing can be sorted out among multiple parties, the prejudicial effect of such litigation on future beneficial risk-taking can be minimized, and citizens going about their jobs are not in fear that, but by the grace of God, the government is not turning its overwhelming prosecutorial power in their direction.