A Former Client Sues Disgraced Washington Lobbyist Jack Abramoff: What the Case Reveals About American Politics

By MICHAEL C. DORF

Monday, Jul. 17, 2006

Last week, the saga of disgraced lobbyist Jack Abramoff took a new and odd turn. One of Abramoff's former clients, the Alabama-Coushatta Tribe of Texas, sued him and others, alleging that their misdeeds cost the tribe millions of dollars in foregone casino revenue.

The allegations in the tribe's complaint are not exactly news, as they are drawn mostly from documents already made public--including records of congressional hearings and Abramoff's own plea agreement with the government. Yet the tribe has done a public service in weaving them into a compelling, if sickening, narrative of greed and corruption.

That is not to say, however, that the tribe will prevail in its lawsuit; it may not. For instance, one of the tribe's claims is downright perverse; the tribe essentially argues that Abramoff and his associates failed to deliver on an attempt to purchase federal legislation. Another claim asserts that Abramoff and company "tricked" Texas citizens and elected officials into believing that gambling is harmful.

More broadly, the potential legal obstacles that the Alabama-Coushatta Tribe's suit faces underscore disturbing facts about how lobbyists and legislators do business, even when everyone scrupulously obeys the law.

Abramoff's Failures to Disclose and Other Sins

Jack Abramoff and his associates raised sleaze to an art form, as the Texas casino gambling saga illustrates. Abramoff was hired by the Louisiana-Coushatta Tribe to lobby Texas elected officials so that the latter would not permit casino gambling by their cousins, the Alabama-Coushatta of Texas, and another Texas tribe, the Tigua. The Louisiana-Coushatta feared competition from the Texas tribes if Indian gaming were legalized in Texas.

According to the complaint of the Alabama-Coushatta, the lobbying efforts of Abramoff and his associates consisted primarily of attempts to deceive the public and Texas elected officials about who really opposed casino gambling in Texas. Rather than revealing that their client's interest was purely economic, Abramoff and the other defendants allegedly created front organizations that purported to object to gambling on moral and religious grounds.

Meanwhile, the complaint alleges, even as Abramoff and the others were taking millions of dollars of Louisiana-Coushatta Tribe money to prevent gaming by the Texas tribes such as the Alabama-Coushatta, they were soliciting money from those very same Texas tribes to lobby Congress to permit them to operate casinos. (Because of the complicated interaction of federal statutes and judicial precedents in this area, gaming by the Texas tribes would be permissible if permitted by either the state or federal government.) This undisclosed conflict of interest was one of the bases for Abramoff's guilty plea on charges of criminal fraud.

Yet, as disgusting as it is, Abramoff's pattern of behavior does not clearly entitle the Alabama-Coushatta Tribe of Texas to the relief it seeks from the court.

The Alabama-Coushatta's Federal and State Claims

The Alabama-Coushatta complaint accuses Abramoff and his associates of violating various provisions of Texas law in their stealth campaign to defeat casino gambling by the Texas tribes. If the allegations are true, it seems clear that the law was indeed violated: For example, a provision of the Texas Government Code requires lobbyists to disclose the clients they serve, and Abramoff concealed the fact that he was working for the Louisiana-Coushatta. However, that same Texas Code provision establishes criminal and civil penalties but does not appear to provide persons or entities injured as a result of the violations the right to sue for private damages.

Granted, the Code specifies that its penalties are "in addition to any other enforcement, criminal, or civil action that the [Texas Ethics] commission or another person may take under this chapter or other law." (Emphasis added). And granted too, that language leaves open the theoretical possibility that "another person" such as a private plaintiff could bring a lawsuit for violations of the Texas Government Code. Nevertheless, these are thin reeds on which to base a multi-million dollar claim, and the Alabama-Coushatta apparently concluded that they could not recover directly under the Code, for their complaint does not include any such cause of action, even though it repeatedly alleges violations of the Code.

Although the Alabama-Coushatta do allege common-law fraud claims under Texas law, the alleged basis for federal court jurisdiction consists of violations of the federal Racketeer Influenced and Corrupt Organizations Act (RICO). A pattern of state law violations can, under the definitions in the RICO statute, become a federal crime. And another provision of RICO permits those injured by RICO violations to sue in federal court for treble damages plus attorney fees.

Given the breadth of RICO's language and its generous remedies, it is hardly surprising that the Alabama-Coushatta chose to sue under RICO. Yet they may not be able to prove the kind of damages for which RICO or state law compensates, for reasons I now explain.

The Scotland Trip Fraud Claim

The Alabama-Coushatta are appropriately outraged that Abramoff and company were on both sides of the same issue: They charged the tribe to help obtain federal legislation permitting them to operate a casino. Yet at the same time, they were taking money from the Louisiana-Coushatta to block state-level efforts to enable gaming by the Alabama-Coushatta.

But what are the Alabama Coushatta's damages? If Abramoff had disclosed the conflict, presumably the Alabama-Coushatta would have hired a different lobbyist to pursue their aims in Washington. Would a different lobbyist have succeeded? Maybe, but of all the allegations against Abramoff, ineffectiveness is not one of them. Even the allegations contained in the Alabama-Coushatta's complaint depict Abramoff making strong--indeed illegal!--efforts on their behalf.

In particular, the Alabama-Coushatta's complaint alleges that Abramoff used the $50,000 they paid his front organization to take Ohio Congressman Bob Ney and several staffers on a golf vacation in Scotland. Ney then allegedly attempted to grant the Texas tribes the right to operate a casino--which was exactly what the Alabama -Coushatta wanted--but his efforts were stymied in the House-Senate conference by Connecticut Senator Christopher Dodd.

The Alabama-Coushatta complaint claims that the tribe believed it "would be underwriting an educational trip to Scotland . . . ." and not a golf trip. But so what? There's only one plausible reason why a small Indian tribe in Texas would spend $50,000 to fund a Congressman's trip to Scotland, and it's neither love of golf nor love of education.

The Alabama-Coushatta's gripe seems simply to be that Abramoff and his associates failed to deliver the goods. Based on these allegations, the tribe, rather than being able to press a civil claim against Abramoff, might seem fortunate to avoid a criminal investigation into its own activities.

The Fraud-Against-the-Public Claim

What about the Alabama-Coushatta tribe's complaints regarding Abramoff's failure to disclose his true backers to the voters and elected officials of Texas? Surely, this was a conflict of interest. Yet here too, Abramoff's misdeeds should not necessarily redound to the benefit of the Alabama-Coushatta.

The public and Texas elected officials had a legal right to know who was bankrolling the campaign against gambling in Texas. But the public and officials aren't the plaintiffs here--and it is hardly clear that the outcome would have differed if the voters and elected officials had known the truth.

Tellingly, the Alabama-Coushatta nowhere deny that many Texans sincerely oppose casino gambling on moral and/or religious grounds. Nor do they deny that casino gambling acts as a regressive tax, or that it preys on people who are addicted to gambling. They seem to concede that Abramoff's lies solely concerned the campaign's backers, not the underlying question of whether casino gambling would be good or bad for Texas.

And even the disclosure of who was funding the anti-gaming campaign might well not have been outcome-determinative. For all we know, if the public and elected officials had been fully informed, they would have simply savored the irony that the very people who profited from casino gambling in Louisiana were helping to prevent its spread to Texas.

Private Interests Versus Public Ones

In one respect, when it comes to the state-level anti-gaming campaign, Abramoff could be seen as having done exactly what lobbyists are supposed to do: To help a client obtain a private benefit--here, the absence of casino competition--he identified for the public and elected officials the public good that would come from adopting their favored policy.

Lobbyists for the pharmaceutical industry do not say that limiting liability for vaccines would be good because it would increase their profits; they say it would be beneficial to the public in speeding useful vaccines to market. Lobbyists for trial lawyers do not say that capping attorney fees would reduce attorneys' wealth; they say it would make it difficult for deserving plaintiffs to obtain representation.

There is nothing wrong in principle about this sort of behavior, so long as the public and elected officials are not misled about the merits of the policies at issue.

To be sure, the knowledge that some well-heeled interest group stands to gain from, and stands behind lobbying efforts to obtain, some piece of legislation, can and should make the public skeptical about claims about the merits of the proposed law. That is the reason for disclosure legislation of the sort that Abramoff and his associates allegedly violated in Texas.

But such legislation exists to serve the public, not the private interests that stand to win or lose depending on what substantive polices are chosen. Accordingly, the Alabama-Coushatta will have difficulty demonstrating that they, rather than the public generally, are entitled to be compensated for Abramoff's wrongs.

Criminalizing Politics or Legalizing Corruption?

In the public debate over government corruption, defenders of former House majority leader Tom DeLay and others have lately taken to accusing their critics of attempting to "criminalize politics."

If their point is that there is no real moral distinction between legitimate campaign contributions and illegal payments of the sort that Abramoff facilitated, they may be right. As the New York Times reported on Saturday, the new House majority leader, John A. Boehner, has been even more aggressive than DeLay and Abramoff were in delivering lobbyist largesse to members of Congress. The main difference is that Boehner has not hidden his efforts, and thus has not violated the law.

But seen in this light, it appears that the critics have matters exactly backwards. Our laws do not criminalize politics. They come perilously close to legalizing corruption--if not in the form of a literal quid pro quo, then at least in the creation of the perception that government is for sale. And unfortunately, whether the Alabama-Couchatta win or lose, that does not appear likely to change any time soon.


Michael C. Dorf is the Michael I. Sovern Professor of Law at Columbia University. He is the author of No Litmus Test: Law and Politics in the Twenty-First Century.

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