Capitol Chronicle

Dancing With the Bear: The Lege Two-Steps Toward the Home Stretch

Capitol Chronicle
By Doug Potter

In the wee hours last Friday morning, just before adjournment at about 2:30am, a group of House members drunk on exhaustion gathered together to sing "Kumbaya." After a 16-hour official day -- probably closer to 20 for many of them -- they had earned a bit of scout-camp giddiness, in celebration of having passed dozens of bills under the gun of a Senate deadline that otherwise might have killed them all.

The good mood didn't last. The next afternoon, a dozen bleary-eyed lawmakers (including a few members of the impromptu chorale the night before) gathered to denounce their fellows for backsliding on Medicaid reform. Houston Rep. Garnet Coleman hosted the press conference, called to build support for Medicaid "simplification" for children's health insurance and improved Medicaid reimbursement rates for nursing homes. At issue were two of the three big-ticket items complicating a final resolution of the state budget. Lawmakers have agreed in principle to fund some form of school employees' health insurance (although House and Senate remained far apart on the effective numbers), but remain at loggerheads over whether they can fund both children's health insurance and nursing homes.

"We do not have to make a choice between our elders and our children," said Coleman, supported by Austin reps Glen Maxey and Elliott Naishtat, Galveston's Patricia Gray, and several others, all wearing "Simplify!" buttons in honor of the occasion. A day earlier, after a lengthy and acrimonious debate, the Senate had passed Fort Worth Democrat Mike Moncrief's SB 1839, assessing a $5.25 per day bed fee on nursing homes to fund the increase in Medicaid reimbursements that everybody agrees is necessary -- as long as nobody has to foot the bill. Arlington Republican Chris Harris (who earns much of his living as a nursing home industry attorney) denounced this new "granny tax," and other senators complained that while not every nursing home accepts Medicaid patients, all would have to help pay for them. (That is an argument that mysteriously never prevails when the Lege wants to give tax rebates to the owners of professional sports teams.)

The assembled legislators believe Moncrief's bill -- still in play in the House -- goes a long way toward addressing the budget crunch, at least as it affects health care. They were arming against conservative opposition that wants to defeat the bill and roll the nursing home costs into existing general revenues, thereby locking out of the budget some or all of the 600,000 Texas children still without health insurance. Those kids are now subject to "rationing by regulation": not direct denial, but an intentionally cumbersome application process that effectively keeps their families from receiving the federal- and state-funded (60/40) insurance to which they are entitled under Medicaid. Coleman said the group would fight any attempt to split the nursing home funding from the children's insurance funding: "Texas ranks 49th in funding children's health, and 45th in health care for the elderly. We need to fix both. These are both Medicaid programs for existing populations, and we should not frame the issue to separate the two." The House GOP's Conservative Coalition -- led by Burleson Republican Arlene Wohlgemuth -- has made it clear they will try to defeat Moncrief's bill in the House and will propose Medicaid legislation that would continue to restrict by regulation the number of children eligible for simplification.

Wohlgemuth might be the least of Coleman's worries. Gov. Rick Perry -- whose inevitable refrain on pending legislation has been, "I'll wait until it reaches my desk" -- sang a new song Friday, when his spokeswoman Kathy Walt told the San Antonio Express-News that if Moncrief's bill reaches his desk, he will veto it. This was not only a surprise to Moncrief, but to Perry's fellow Republican, Lt. Gov. Bill Ratliff, who said Perry had reneged on a reiterated commitment to him to support the bill -- upon which assurances he had persuaded several reluctant Republicans to vote for it. Perry's turnabout flies in the face of his own budget, which requested a $103.7 million increase for nursing homes (the actual need is closer to $500 million). Budget writers confessed they have no current alternative to the bed fee. That leaves the Lege exactly where it began: with an acknowledged emergency need that nobody wants to pay for.

Moncrief attended the Friday press conference and described his nursing home bill as "the last lifeboat on a sinking ship," since some 30% of state homes are in or near bankruptcy. He insisted that the fight over Medicaid funding is far from over. "We're dancing with a bear," Moncrief said. "And you can't just sit down when you get tired. You hope that the bear gets tired, and then maybe you'll get to sit down."

Waltzing Across Texas

Of course, the budget is only the biggest bear in the Capitol forest. The redistricting bear has been regularly raiding the campsite, and also still doing the Texas two-step are major bills on the environment, criminal justice, education, and so on.

The redistricting dance is still in the first act, and the music is more than a little discordant. The House indeed passed a moderate plan to redistrict itself, but by so slight a majority that it cannot withstand a Perry veto -- said to be the weapon of choice to the GOP right wing, voluble in its opposition on the House floor. The Senate hasn't gotten that far -- a moderate plan drafted by a committee under San Antonio Republican Jeff Wentworth was at least temporarily derailed by the proposal of an alternate, radically partisan version proposed by Waco Republican David Sibley. That created a stalemate, and the scuttlebutt is that Sibley's strategy is simply to prevent a Senate plan, thereby throwing the job to the Legislative Redistricting Board, where Republicans hold a 4-1 majority. But one Democratic aide told the Chronicle -- not for attribution, of course -- that it may make more sense for the Dems to rely on the mercies of the Redistricting Board (where Speaker Pete Laney, Lt. Gov. Bill Ratliff, and AG John Cornyn could form a moderate bulwark against wild-eyed colleagues Comptroller Carole Keeton Rylander and Land Commissioner David Dewhurst), than to hope the Senate's right wing will listen to reason. "Wentworth worked hard and drafted a fair plan," said the aide, "and Ratliff and Cornyn are more likely to follow his lead."

Even if they get the state lines drawn, the Lege still has to draw new congressional lines -- an explosive political football that will probably require a special session, to be followed by several years of lawsuits. One school of thought has Gov. Perry vetoing the Lege plans, avoiding a special session -- and going directly to the courtroom. One hesitates to agree with pit bull Republican Kent Grusendorf on anything, but his description of the House debate -- "We were speaking less to each other than to the courts" -- may well be the last word.

Crimes and Misdemeanors

One would like to report that efforts at reform launched with high hopes in January are still holding sail in May. The real news, with a little more than a week left in the session, is very mixed. Thanks to Senate votes Monday, substantive reform at the Texas Natural Resource Conservation Commission -- excuse me, the "Department of Environmental Quality" -- is still possible, but awaits a conference committee, where last session everything imploded. Likewise, the possibility of reining in runaway charter schools faces conferees, after Sen. Teel Bivins derailed substantial House reforms sponsored by Waco Democrat Jim Dunnam with a substitute bill that would allow any elected body in the state to authorize new charters. (Although ludicrous, even dangerous, as public policy, Bivins' proposal presents real entertainment possibilities: a charter school in every strip mall, and taxpayer dollars pouring into the pockets of "educator" scam artists from Lubbock to Laredo.)

The big victory of the session for progressives, thus far, was last week's passage of the James Byrd Jr. Hate Crimes bill, almost immediately signed by the governor (see "Naked City"). While one might argue that the law's effects will be largely symbolic ("hate crimes," though particularly repulsive, are a very small percentage of Texas crimes), that symbolism is nevertheless eloquent, and potentially far-reaching as it filters down to community values.

The bill's opponents certainly understood this. Despite all the high-toned protestations by Senate Republicans that their opposition to the bill had to do only with the creating of "special classes" of citizens, that nicety disappeared on the House floor, during the debate over related education legislation. Faced with the prospect that the "homosexual lifestyle" might be receiving even indirect tolerance from state government, conservative backbenchers loudly denounced such an outrage. To its credit, the House soundly defeated attempts to return -- in Sen. Rodney Ellis' words -- to "open season" on gay people. One can only hope the message is heard beyond the Capitol.

A package of criminal justice reforms has received momentum from a couple of notorious Texas drug war cases: in Tulia, where more than 10% of the black population was arrested for "drug dealing" on the uncorroborated testimony of a single, hired-gun undercover officer, and more recently in Hearne, where 28 drug cases (some now dismissed) were based on the uncorroborated testimony of a criminal informant recruited to reduce his own sentence. Several reforms remain under consideration:

  • The House has passed a bill to limit the use of uncorroborated testimony (very narrow in scope, but proponents believe it will reduce the use of "gypsy cops" who hire out to small-town police departments);

  • A bill outlawing racial profiling passed the House this week (largely because it included funds for small-town police forces to install traffic-stop video equipment); and

  • The omnibus indigent defense bill -- subject to heavy opposition from local judges who want to retain a free hand in appointing counsel -- is still alive, although weakened.

    On Monday, the House narrowly defeated a bill (SB 85) to allow life-without-parole sentences in capital cases. This was the capital punishment reform deemed most likely to survive the session, since even the governor had suggested he might support it. Although the bill's supporters, especially House sponsor Juan Hinojosa, insisted that they support the death penalty, the debate quickly drifted toward the morality of capital punishment. Proponents insisted that any modification of current law would threaten the constitutionality of capital punishment in Texas, and El Paso Republican Pat Haggerty (fond of reminding his colleagues that he chairs the Corrections Committee) argued that life without parole is a much more inhumane sentence than the death penalty.

    The House was momentarily hushed by the emotional testimony of Paul Moreno, D-El Paso, who tearfully recalled his wartime service in Korea -- when he or his fellow soldiers mistakenly killed a child. He called that experience the root of his conviction that life is sacred and the death penalty unjustifiable, and that in fact capital punishment lends undeserved and contagious notoriety to murderers like Timothy McVeigh. Moreno asked his colleagues to recognize the obligation of a civilized community to move away from vengeance and retribution, and to support of the sacredness of human life.

    It was a stunning moment -- although there was some speculation afterward that Moreno's passion may actually have hurt the bill (which failed 72-65), because it reinforced the suspicion that life without parole is only a first step toward abolition of the death penalty. Because of the close vote and the absence of several members, Hinojosa managed to bring the bill up again on Tuesday. It failed again, 77-68.

    A few death penalty bills are still pending, but as Moreno pointed out, Monday's debate is likely to be the closest the Lege gets to a real public discussion of capital punishment in Texas. Nobody was singing "Kumbaya." end story

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    Legislature, Garnet Coleman, Medicaid, Mike Moncrief, Arlene Wohlgemuth, Rick Perry, Bill Ratliff, David Sibley, Legislative Redistricting Board, Teel Bivins, hate crimes, Juan Hinojosa, Pat Haggerty, Paul Moreno

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