Why a billionaire’s lawsuit against Beto O’Rourke portends a bleak future of 'dark money contributions': analysis

30 January 2023

Billionaire Kelcy Warren is suing former Texas Democratic gubernatorial candidate Beto O’Rourke for defamation after he publicly denounced Warren’s $1 million donation to Texas Governor Greg Abbott’s 2021 campaign, Truthout reports.

Truthout reporters Andy Lee Roth and Steve Macek analyzed the pending lawsuit — which was originally reported by Jordan Uhl at Lever News — and what the legal action means for the future of the relationship between money and political campaigns.

The donation was reported by the Texas Ethic Commission and Federal Election Commission to be the “single largest donation” towards any political campaign — both state and federal.

The former Texas congressman has called out Governor Abbott in the past for not holding the Texas oil and gas companies from which Warren’s company, Energy Transfer Partners, makes a billion-dollar profit.

Despite Warren’s claim that O’Rourke's public criticism is defamation because he suffered “mental anguish,” Lee Roth and Macek offer three reasons why the lawsuit likely won’t go anywhere:

First, truth often prevails in defamation cases. And the assertion that Warren’s top-dollar donation influenced the campaign outcome is “likely true.”
Lee Roth and Macek highlight that subjective opinions “are not generally actionable.” And O’Rourke’s criticism is based on his opinion of the billionaire’s contribution, but his critique also sits on “factual evidence”.
Warren, who is worth $5 billion, is considered a “public figure” by the Supreme Court’s definition: someone with “general fame or notoriety in the community and pervasive involvement in ordering the affairs of society.” There’s proof that Warren has donated to a long list of political candidates across the country, to political actions committees, proving his “pervasive involvement” in campaigns. Therefore, it would be difficult to prove that O’Rourke exhibited “malice” or “knowingly uttered falsehoods or, at least, acted in reckless disregard of the truth — in order to claim any damages.”

Nonetheless, as Uhl wrote, the legal action against O’Rourke still “could send an intimidating message to political candidates across the country: if you suggest billionaire donors buy political influence, you could face severe punishment.”

Additionally, Lee Roth and Macek assert that the lawsuit is an example of a strategic lawsuit against public participation (SLAPP), which are defined as “attempts to use civil tort action to stifle political expression.”

And although SLAPPs are not legal in Texas, the lawsuit also exemplifies use “of the legal tactic to deter critical speech,” Uhl reports.

Nonetheless, The Texas Citizen Participation Act (TCPA) says that people like O’Rourke who are “defendants of frivolous SLAPP actions” — and being sued for exercising the freedom of speech — can request that the case be dismissed.

In their conclusion, Lee Roth and Macek warn this specific lawsuit is a direct reflection of dark money groups' influence on political campaigns. The writers also pointed to a recent Project Censored report that found GOP lawmakers continue to push legislation that makes "it more difficult, if not impossible, to identify the sources of dark money contributions, ultimately shielding them from public scrutiny.”

Read the full report at Truthout.

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