It's a Wrap!
Lege Says Farewell, With a Few Licks and Many More Promises
"Years of watching the Lege in action," one veteran Capitol lobbyist told another, "can certainly make you a Christian -- when you consider all the deaths and resurrections you see around here."
The conversation took place in the middle of last week, as the last days to resurrect dying bills by various arcane methods rapidly ticked away. One tactic to revive dead legislation is attaching it by amendment to a living host, and on May 22, appropriately near midnight, that method was attempted by Rep. Ron Wilson for the West Texas nuclear waste dump. The dump had apparently died an ignominious death a few days earlier, when the Senate bill enabling both the public Texas/Maine/Vermont Compact waste dump and the much larger private dump promoted by Waste Control Specialists and its lobbyists failed to escape the House Calendars Committee. Committee members couldn't stomach the private dump, which would invite massive amounts of Dept. of Energy waste (including nuclear weapons waste) from the entire country.
Following a very long day and evening of deliberations -- the heaviest lifting concerned nursing-home legislation -- Wilson (a maverick Houston Democrat who, when he's not abusing Austin, insists he's trying to protect schoolchildren from proximity to stored nuclear radiation) abruptly proposed an amendment to a minor hazardous waste bill sponsored by Pampa Republican Warren Chisum. Although Wilson insisted that his amendment was unrelated to any other bills, among its provisions was the authorization of both "private and public" nuclear waste storage sites. Nuke opponents smelled a rat and quickly mounted a series of parliamentary challenges, concluding with several reps "chubbing" Wilson's amendment into oblivion. Chubbing is a sort of discount, House-style filibuster, and this one featured Glen Maxey and Lon Burnam comically slow-talking an amendment to Wilson's amendment, followed by Harold Dutton cheerfully interrogating Robert Talton on the distinguished reign of King Edward the Confessor.
Thanks to procedural deadlines, that was all it took. When the clock struck midnight, Wilson's maneuver was dead, as predicted a couple of hours earlier by Warren Chisum. "Someone may try to attach [the dump] to something else," Chisum had said, "but I don't think the House will go along with it." Chisum has been a steady supporter of the Compact dump, but he killed his own Compact bill last session when it was opened to D.O.E. waste. He acknowledged that the attempt to link the Compact project -- "which most reasonable people understand we have to do as a contractual obligation" -- with the D.O.E. dump site probably doomed both. "The bill has gone away," concluded Chisum, "but the waste hasn't gone away. That will be with us for 35,000 years."
Along with the nuke waste lobby, no doubt. With the Bush/Cheney administration promising a healthy transfusion for the moribund nuclear power industry, who knows? The undead may walk again in 2003.
The Lege, on the other hand, has gone home, at least for the moment. "Sine die" -- legal Latin for "That's all she wrote" -- was Monday, and as in recent years was a largely ceremonial occasion for final speeches, practical jokes, and farewells. Barring a return for a special session on congressional redistricting -- at the moment a long shot because no cross-party consensus appears likely, and Gov. Rick Perry doesn't need the additional grief -- what's done is done. And what's left undone ...
The Big Squeeze
... is considerable. Redistricting, which was supposed to be the centerpiece of the session, instead turned into the unwelcome guest, as compromise plans for legislative districts generated in both houses were blocked by Republicans who insist the plans do not adequately reflect GOP voting gains. Now that work will go first to a Republican-heavy redistricting board and then to the courts. (The board should be entertaining, however, since among its five members will be the two GOP candidates for lieutenant governor, incumbent Bill Ratliff and Land Commissioner David Dewhurst, now with an early excuse to lock political horns.) Indeed, most observers were saying the Lege debate on new districts was little more than an elaborate charade for the benefit of the federal judges.
Other than redistricting, the single greatest sin of omission -- a fair, equitable and efficient tax structure -- is a longstanding Texas tradition, so it's no surprise the Lege didn't attempt to remedy that oversight. Instead, faced with declining revenues after a decade of economic expansion (and shortsighted tax cuts), the legislators agreed on a budget that increases spending and at least addresses the most dramatic needs identified as the session opened -- a Medicaid shortfall, public school employees' health insurance, the nursing home crisis, and state employees' pay -- although the amounts doled out for each are already acknowledged to be inadequate.
When appropriations chairs Rob Junell in the House and Rodney Ellis in the Senate presented the $114 billion biennium budget last week, both declared they had done the best they could with what they had. Ellis told the Senate that rather than "cut" programs wholesale, his committee had "squeezed" across the board to maintain services. That was especially true in the case of nursing homes, for which a compromise funding solution -- a $5.25/day bed fee to generate revenue and draw down federal matching funds -- was trumped by Gov. Perry's surprise announcement he would veto any such "granny tax." For a week it appeared the Lege would be forced to choose between children's Medicaid or elderly nursing care, but the budget writers shuffled enough money around to allow both Medicaid simplification (meaning some 600,000 children without insurance could now be enrolled) and to save several hundred nursing homes from bankruptcy.
Of course, they had managed this balancing act with the help of the same shell games that helped create the predicament in the first place -- most notably, by deferring one month's payment on Medicaid until the next biennium, as their immediate predecessors had done to them. (Don't try this at home.) And there is no guarantee that those newly insured children will be able to find doctors -- the minimal action on improving Medicaid reimbursement rates may well force doctors to refuse new patients, as is already happening along the border. "The Medicaid simplification was the best thing we managed to do," said El Paso Rep. Norma Chávez. "But it doesn't help a whole lot if the doctors won't be there. We only began addressing that problem."
The budget still must be certified by state Comptroller Carole Keeton Rylander -- who with two weeks left in the session was announcing diminishing revenues (and therefore deferring her own run for Lite Guv). It must also survive any line-item vetoes Perry may be contemplating. (For example, conservatives are complaining loudly -- loudly enough to reach the Mansion? -- that insuring all those children entitled to Medicaid will be too expensive.) Moreover, the budget is littered with "contingency" expenditures dependent on revenues that may well disappear in the softening economy.
So it is a little early to start celebrating the state's newfound munificence. Texas has long been proudly last in per capita government spending, and Eva de Luna Castro of the Center for Public Policy Priorities analyzed the new budget numbers and reports that, compared to 1998 national figures, and after an $11.8 billion overall funding increase (much of it in federal dollars), we should now be an impressive 49th. "Of course, that assumes the other states haven't added to their budgets in the meantime," Castro said. "In that case, we could still be in last place." Look out, Mississippi.
Has the Lege learned its lesson? Shortly after the budget approval, and over the stunned protests of Sylvester Turner, D-Houston, the House eagerly rubber-stamped Senate amendments to Rep. Kim Brimer's school-tax-break giveaway (HB 1200) to large manufacturers. The comptroller reported the amendments would add some $800 million to a cost already estimated at nearly $1 billion. This was the same Legislature, Turner recalled, that had adamantly resisted any utility-company rebates to consumers who had been overcharged to the tune of a couple of billion dollars.
You can bet the 92 members who voted for Brimer's corporate welfare call themselves "conservatives."
Although the Nuke Waste Vampire will rest uneasy for another two years, the defeat of its latest avatar -- which looked invulnerable less than a month ago -- was indeed a surprising and sweet victory. Fort Worth Democrat Lon Burnam said that the dump's supporters hurt their own cause by their arrogance in pushing the DOE waste, but added that the perennial fight has forged personal relationships among opponents that were crucial in defeating the bill. "It won't go away," warned Burnam. "It will come back next session." Dump supporter Chisum was less certain, at least about the devotion of Waste Control Specialists to the DOE site. "They've got to make a decision. They're getting a little tired of this deal too," he said.
Grandpa's Dead, R.I.P.!
Erin Rogers, the Sierra Club organizer who has been fighting the dump in various guises for years, was heartened by the dump's defeat. "We need to use the momentum and energy from this victory on a proactive agenda on how to deal with this waste in a responsible way," Rogers said. "We need to reduce production of the waste, and advocate for managing the waste aboveground at the power plants [South Texas Nuclear Project and Comanche Peak]. And we need to resist the new Bush plan for additional nuclear energy production."
As the session came to a close, other environmental issues remained unsettled. A major water bill (SB 2) was headed to the governor's desk, with some new protections for watershed maintenance and at least the hint that "right of capture" is not sacred writ -- but still trailing a projected $17 billion in water projects (yet unfunded) that with systematic conservation efforts would be largely unnecessary, and if ever undertaken, could steadily undo the bill's reforms. Buster Brown's Senate Bill 5 -- an attempt to "incentivize" air pollution control in the state's non-attainment areas -- had been whittled a bit in the House, but some costs had also been shifted away from consumers and onto industry (especially industrial users of diesel engines).
Tom Smith of Public Citizen says the bill is no panacea for the state's crisis air pollution, but he believes it could make a real difference in some areas, e.g. Austin, where the air quality is steadily endangered not only by explosive growth but by external sources, especially from the southeast. "The bill came through worse than I had hoped, but better than I feared," said Smith. "The house stripped out many of the more onerous fees on consumers, but we also lost about $25 million, which will hurt the program. ... The energy code and energy-efficiency programs will be particularly helpful for near non-attainment areas. They will help reduce pollution from east and south in Austin, where the monitors are often nearly in violation."
Literally up in the air until the final moments was the grandfathered pollution loophole, which had survived various House efforts to close it, partly because rural legislators still consider pollution regulation a threat to economic development and remain unconvinced -- despite all the evidence -- that rural sources (particularly older power plants and diesel pipeline engines) contribute significantly to the state's air pollution crisis. But the Senate passed a more rigorous bill (attached to the TNRCC sunset legislation) that will require strict pollution controls, at least in the more polluted eastern part of the state, by 2007 (no use rushing into these things, said grandpa) -- and lo and behold, the House accepted the changes. On sine die, the coalition of state environmental groups called the Alliance for a Clean Texas celebrated the death of the grandfather loophole on the Capitol steps, complete with an enormous prop tombstone to mark the occasion. Robin Schneider of Texas Campaign for the Environment awarded Rep. Zeb Zbranek (who had fought hard to close the loophole) an "Air Hugger" bumper sticker, and congratulated everyone for having "something to cheer about."
External events may have finally forced the Lege's hand (or perhaps made it irrelevant). The grandfathered loophole -- essentially a 30-year, massive corporate welfare program to the state's major industries, under which the companies and their stockholders accumulate the profits and Texas citizens assume both the health risks and the cleanup costs -- could not have survived the "state implementation plans," required under federal law, to clean up the air in the state's major urban areas. Under a pending settlement between the industries and the Texas Natural Resource Conservation Commission, the SIPs will require radical reductions in grandfathered pollution in return for more flexible limits on newer sources. (Note: It will be years before residents of Houston, Dallas-Fort Worth, El Paso, etc. begin to breathe the results, and Austin's air is likely to get dirtier before it gets cleaner.)
And thanks to Neighbors for Neighbors, the feisty Lee/Bastrop County community organization that has bedeviled Alcoa's attempts to expand strip-mining and escape effective pollution reductions at its Rockdale plant, the TNRCC and the Environmental Protection Agency are investigating evidence that the plant has in fact been in violation of the requirements for the grandfathered exemption for many years -- performing major renovations to its facilities and increasing both production and pollution while claiming exemptions meant for "obsolete" plants. Neighbors for Neighbors found the evidence for these violations (somehow overlooked by regulators) in the TNRCC's own files. It would be sweet justice indeed -- and a major benefit to Central Texas and North Texas air -- if Alcoa is finally forced to clean up the Rockdale plant, which annually emits in excess of 100,000 tons of grandfathered air pollution.
Speaking of the TNRCC, under the sunset bill governing TNRCC operations, the beleaguered agency will get a new name (Dept. of Environmental Quality), and in reviewing new permit applications, it will have to take some consideration of cumulative risks, a common-sense reform too long in coming. The agency's Office of Public Interest Counsel, despite efforts to give it real independence, will continue to be a misnomer, subject instead to the direct oversight of the agency and its industrial priorities. And there were small, probably cosmetic concessions on "upset emissions," a category that allows companies to casually vent large amounts of pollution without effective regulation: The agency is now charged with taking a closer look at repeat bad actors.
Each of these reforms are incremental at best, but together they could come to represent substantive progress. The Sierra Club's Ken Kramer described the changes as tentative but real, and called the session "the most positive for environmental issues in 20 years." Public Citizen's Smith attributes some of the change in atmosphere to the harsh light cast on the Texas situation by last year's presidential campaign, and some to the growing realization at the Lege that major industrial players have been breaking the rules and misleading the public on pollution for years. "Industry is giving Texas a very black eye, in addition to threatening our health," Smith said.
Smith recalled a recent conversation he overheard between two industry lobbyists, one of whom was insisting that adding a dollar for pollution controls to hotel/motel fees would persuade conventions to avoid Houston. "'Oh, quit lying,'" Smith said the man's colleague answered. "'The truth is that people aren't coming to Houston because the air's so polluted.' That means," Smith concluded, "that [on environmental regulation] the center of the House and Senate is changing."
Rep. Juan Hinojosa, D-McAllen, readily recites the accomplishments in criminal justice reform accomplished during this session, and -- if it all survives the governor's review -- it's indeed an impressive list.
Hinojosa for the Defense
"We addressed many of the shortcomings in the state's criminal justice system highlighted during the Bush presidential campaign," Hinojosa said, "and we've gone a long way toward a fairer system. We've passed a DNA law, one of the most important technological advances in a long time, that will allow even convicted inmates a chance to clear themselves through the availability of scientific evidence. We've passed an indigent defense bill, which will help poor defendants in all cases, including capital cases. We've prohibited the use of racial characterizations in prosecutions, so that so-called experts can't claim in court that blacks and Hispanics constitute a greater threat of future dangerousness, as has happened in capital prosecutions. We've prohibited racial profiling by police -- a law that's good for both police and defendants, because it will provide for videotaping arrests both to prevent violation of defendants' rights and to protect officers. ...
"On the 'Tulia' bills -- we've prohibited traveling officers concealing their disciplinary or criminal history from their new departments, and we've said that on drug offenses, convictions can't be made on the basis of uncorroborated evidence given by a single undercover officer or informant. And we will almost certainly ban the execution of the mentally retarded."
Hinojosa's litany omits many of the compromises and qualifications that will limit the effect of much of the reform legislation, and it will be a very, very long time before defense attorneys "even the playing field" with Texas prosecutors. But it is true that this session, thanks also to reform organizations like Texas Appleseed and the ACLU, has made more movement on criminal justice issues than any in recent memory. (We should not forget the session's most emotional issue, the James Byrd Jr. Hate Crimes Act. See "Hate Crimes Law Caps Long Struggle," a photo essay, p. 28.)
The restrictions on the death penalty for the mentally retarded -- less sweeping than suggested by Hinojosa's description, but a small step forward -- are all that is left of the once-ambitious proposals to limit capital punishment. Moreover, on Monday Perry strongly suggested he will veto even this minimal reform. The life-without-parole alternative was rejected ("That was largely symbolic," says Hinojosa, "because the current 40-year life sentence is effectively life without parole"), and the various proposals for moratoriums and investigative commissions never reached the floor. Ambitious prosecutors can rest assured that the arbitrary, cruel -- and fundamentally political -- Texas execution system remains comfortably in force.
Hinojosa, who chaired the House Committee on Criminal Justice, has been at the center of many of these incremental but important reforms. While many legislators and citizen advocates can take credit for action on these issues, the leadership of minority legislators on key committees was more prominent this session than ever before, and several members in particular -- Hinojosa, Senfronia Thompson, Garnet Coleman, and Ruth Jones McClendon in the House; Rodney Ellis and Royce West in the Senate -- have emerged as indispensable major players on progressive legislation.
Whatever eventually happens in redistricting, that isn't likely to change, partly because federal law prohibits dilution of minority influence, but more permanently because -- whatever the moonless dreams of the hard white right -- the demographics of the state are changing, and when minority voters find ways to realize their strength, the state's politics will be transformed. That is of course the historical back story behind Tony Sanchez's ongoing will-he-or-won't-he gubernatorial sideshow.
Speaking particularly of the limited success of border initiatives -- several bills passed but sufficient appropriations were much harder to come by -- El Paso Rep. Norma Chavez acknowledged that the voters' power has not yet gathered itself on the border. "Until we can make the difference in a statewide race -- until we can prove that -- we're still not the block that the border needs to be."
She might also have been speaking, more broadly, of the statewide minority vote, which before too long will not even be a minority at all.
"What is the take-home message?" asked Anne Dunkelberg of the Center for Public Policy Priorities. "Everything has been underfunded, or been given a lick and a promise. You can't underfund these [health and human services] programs forever and expect them to run." She was speaking specifically of Medicaid programs, which have been the priority issue this session, and warned that it will be some time before we even know how effective the changes will be. "Yet Medicaid is the only public program that pays for community care and long-term care, for people of all ages with disabilities, and elderly people with continuing needs," Dunkelberg said.
Cats and Elephants
"We don't have enough revenue in Texas," she went on. "The legislators did a pretty reasonable job of herding all those cats, and spreading the money around -- and at least as far as Medicaid is concerned ... to get some money to the various pieces of the elephant. None of the programs got enough. Health and human services is the legislative stepchild, and remains woefully underfunded."
Dunkelberg's judgment of the session was echoed by Austin Democrat Elliott Naishtat, who chairs the House Committee on Health and Human Services. "I was pleased with the outcomes on both the omnibus nursing home bills and the Medicaid simplification package," Naishtat said. "In the end, we were able to fund both programs, although at levels not commensurate with the needs of both vulnerable populations.
"With respect to the nursing home bill, where we stripped out the language that would have authorized the creation of a quality assurance fee -- otherwise known as the bed tax or granny tax -- we went to general revenue to make up the loss of what would have been generated by this bed tax. Needless to say, the $175 million in general revenue funds could have been allocated for expenditures on other important health and human services programs, as well as on beefing up children's Medicaid."
For another example, Naishtat referred to the creation of a consumer health care assistance ombudsman program. "All the consumers organizations worked on it for two years, and it passed, but it needed $1 million to be a meaningful program. It got about $100,000. More general revenue could have meant better teachers' health insurance or greater state employees pay raises, and so on."
Did Naishtat think the increased talk about lack of resources might translate, as some members have suggested, into real momentum for an income tax? "There's enough momentum for both parties," he said, "for Republicans and Democrats to give more serious consideration to restructuring the tax system, than we've seen since Lt. Gov. Bob Bullock floated the idea of an income tax, only to be hit over the head." (The negative political reaction to Bullock's proposal was so strong that Bullock instead promoted the constitutional amendment that has ever since prevented an income tax.)
"In light of the media attention to that matter over the last couple of years," Naishtat concluded, "restructuring the tax structure, and even an income tax, will certainly be given more serious consideration. Whether that translates into action -- it's just too soon to say."
One slightly more cynical Lege observer pointed out that when Lt. Gov. Bill Ratliff declared his candidacy Saturday for another term, he was announced as "the man who saved Texas from an income tax," and that Gov. Perry's contribution to the nursing home crisis was to threaten a veto of any new taxes intended to address it. "In that political atmosphere, I just don't see an income tax," said the source. "And that means things will get a lot worse before they get better."