Billionaire’s Lawsuit Against O’Rourke May Stifle Criticism of Money in Politics

A recent Texas lawsuit has opened a new front in the ongoing battle over the reign of money in politics, making it a prime example of how wealthy individuals and mighty corporations seek to wield political influence while avoiding public accountability.

As Jordan Uhl reported in a January 2023 article for The Lever, Kelcy Warren, a Texas billionaire whose fortune derives from gas and propane pipelines, is suing former Democratic gubernatorial candidate Beto O’Rourke for defamation, because O’Rourke publicly criticized a million dollar donation Warren made to Texas Gov. Greg Abbott, a Republican, in 2021.

On the campaign trail, O’Rourke criticized Abbott for failing to hold Texas oil and gas companies responsible for their role in the disastrous consequences of a February 2021 ice storm that cut power to more than 4.5 million state residents, caused hundreds of deaths — and produced a $2.4 billion profit for Warren’s company, Energy Transfer Partners, according to its first quarter earnings report for 2021.

In June 2021, Warren made his single largest donation to a state or federal election campaign in his contribution to Abbott’s reelection, as documented by the Texas Ethics Commission and Federal Election Commission. As Uhl reported, “Warren delivered the cash to Abbott’s campaign two weeks after the governor signed legislation that included a loophole allowing natural gas companies like Energy Transfer to opt out of energy infrastructure winterization mandates.”

Warren, whose net worth Forbes estimates at $5 billion, alleges that O’Rourke’s criticisms defamed him and caused him “mental anguish.”

Beyond Warren, Abbott and O’Rourke’s interests, the defamation suit could set a precedent for wealthy donors using their financial influence to chill or silence speech about money in politics. As Uhl wrote, Warren’s lawsuit “could send an intimidating message to political candidates across the country: if you suggest billionaire donors buy political influence, you could face severe punishment.”

Warren is playing the equivalent of a high stakes game of Texas hold’em poker. His legal hand is unlikely to prevail in court, but his bluff could force his critics to fold, nonetheless.

Why Warren Is Unlikely to Prevail in Court

Under Texas defamation laws, Kelcy Warren’s suit is unlikely to be successful for three reasons. First, truth is always a defense against defamation charges. O’Rourke’s charges that Warren bought political influence are likely true — or, at least, very plausible based on publicly available evidence.

Second, and relatedly, because the facts about the size, timing and broader context of Warren’s campaign contribution to Abbott are not disputed, the disagreement is about an opinion. In most states, including Texas, subjective opinions about a person, no matter how derogatory (or unfounded) they may be, are not generally actionable. And, in this instance, O’Rourke’s disparaging view of Warren is grounded in an abundance of factual evidence.

Third and finally, despite Warren’s claim that he has “never run for state office” and is therefore a private individual, the billionaire clearly fits the Supreme Court’s definition of a “public figure.” In Gertz v. Welch (1974) the high court defined a public figure as someone with “general fame or notoriety in the community and pervasive involvement in ordering the affairs of society.”

A member of the Forbes 400 list of the wealthiest Americans, Warren is certainly famous. Warren has also gained considerable notoriety through his involvement in Texas and national politics, as documented in a 2016 report by Sue Sturgis, and subsequent coverage by Democracy Now! which described Warren as “​​the Texas billionaire behind the Dakota Access Pipeline” completed by Energy Transfer in 2017, amidst significant public conflict and controversy, following an executive order by President Donald Trump.

Furthermore, based on extensive campaign donations to individual political candidates in Texas and beyond, and to numerous national political action committees (PACs), made in his own name and through Energy Transfer Partners, Warren has clearly had “pervasive involvement” in the political process, in Texas and across the United States. As such, to win his case against O’Rourke, Warren will have to prove actual malice — that O’Rourke knowingly uttered falsehoods or, at least, acted in reckless disregard of the truth — in order to claim any damages.

How Warren May Win Even If He Loses

Although Warren is unlikely to prevail in court, he may still win the larger political battle. His legal bluff may cause future opponents to fold or hesitate before criticizing him in public. The ultimate aim of Warren’s defamation suit is to intimidate the defendant and send a chilling message to other potential critics.

This is a clear example of a strategic lawsuit against public participation (SLAPP), a concept introduced by sociologist Penelope Canan and law professor George W. Pring in a 1988 article, where they defined SLAPPs as “attempts to use civil tort action to stifle political expression.”

Despite Canan and Pring’s early warning, SLAPPs are even more commonplace today. In January 2023, for instance, openDemocracy revealed that the U.K. government helped a Russian oligarch, Yevgeny Prigozhin, override sanctions to launch “a targeted legal attack” on a British investigative journalist, Eliot Higgins. Prigozhin’s legal attack on Higgins fits the pattern documented by a study of threats faced by international journalists investigating high level financial crimes, published by the U.K.-based Foreign Policy Centre (FPC) in 2020. The FPC report found that more than 70 percent of the surveyed journalists reported facing threats of legal action against them as a result of their reporting. Global elites used legal and financial powers to target journalists with defamation lawsuits, social media attacks, harassing phone calls and, in extreme cases, physical violence — as exemplified by the murders of investigative journalists Daphne Caruana Galizia, Jan Kuciak and Jeff German.

But, as Jordan Uhl emphasized in his report, Warren’s lawsuit represents “an escalation” of the legal tactic to deter critical speech, since this case targets a political candidate, rather than a journalist.

Battles Over Texas’s Anti-SLAPP Law

Texas is one of 28 states with laws restricting the use of SLAPPs. The Texas Citizen Participation Act (TCPA) may provide O’Rourke additional protection. It allows defendants of frivolous SLAPP actions to seek dismissals if they are being sued as a result of their First Amendment-protected speech. O’Rourke’s statements about Warren are classic First Amendment-protected speech, “about a matter of public concern,” made in the context of an election campaign. Even the most conservative of Supreme Court justices see electioneering communication of this sort as protected expression (see, for instance, Citizens United v. Federal Election Commission).

Nevertheless, there is cause for some concern because the Texas legislature recently revised the TCPA to limit its scope and effectiveness in cases such as Warren’s suit against O’Rourke. In June 2019, Governor Abbott signed into law HB 2730, which now requires defendants seeking to have SLAPP suits dismissed to demonstrate that their claim is “based on” their First Amendment speech and association rights rather than simply “related to” them. Despite this change, the TCPA will likely support O’Rourke’s effort to have the judge dismiss Warren’s lawsuit.

Protecting Big Money Donors From Public Scrutiny and Criticism

Finally, stepping back to take a broader view, Warren’s SLAPP against O’Rourke should be understood against the backdrop of dark money — political spending by organizations that are not required to disclose their donors — and its corrosive impacts on public trust in government and, especially, elections.

As Project Censored reported in its analysis of the most important under-covered stories of 2021-2022, Republican-controlled state legislatures across the nation are enacting laws that make it more difficult, if not impossible, to identify the sources of dark money contributions, ultimately shielding them from public scrutiny.

The ruthless principle that connects the uptick in state laws “making dark money darker” and Warren’s lawsuit against O’Rourke is the oligarchic desire to wield political influence without being subject to public criticism or accountability. In opposing that aim, democracy’s champions must continue to shine light on elite efforts, big and small, legal and extralegal, to silence their critics and insulate themselves from accountability.