This Way to the Big Top!
From budget disaster to hysterical bloodletting, the circus – featuring many elephants, a few donkeys, and legendary RINOs – is back in town
In 2009, the 81st Legislature of the state of Texas was nicknamed the "hurry up and wait" session – in honor of legislators' inability to get much of anything done. This time around, Capitol insiders are speculating that the 82nd Lege will be the "over my dead body" session, as Democrats ponder a seemingly unstoppable wave of conservative legislation, and Republicans face a budget that will not cover line items born of political dogma.
What slowed the last session? The exit of House Speaker Tom Craddick, and his replacement by Speaker Joe Straus, was supposed to signify a new era under the Dome, one that reflected the narrow 76-74 partisan split in the lower chamber. However, that changeover in House management meant it took until Feb. 12 to appoint committees – about twice as long as under Craddick. Then there was the infamous late-session "chub," when Democrats dragged things to a grinding halt, killing numerous bills, in order to block an anti-immigrant voter ID bill (a step they took after hard-line conservatives scuttled any attempts for a consensus version).
This time around, the overwhelming Republican majorities – just over two-thirds in the House, just under two-thirds in the Senate – theoretically mean the GOP can pile-drive to passage any legislation it desires. With a multibillion-dollar deficit opening the door to program slashing, plus the once-a-decade redistricting of legislative, congressional, and State Board of Education seats, it's a dream opportunity for anti-government GOPers. Beyond these two structural priorities, there's a new flurry of voter ID bills as well as the threat of Arizona-style "papers please" measures.
If that's not enough, there's the usual mix of Christian conservative/family values bills, sprinkled with tea party obsessions like nullifying federal health care reform and enabling state rejection of federal law. Right-wing zealot and birther conspiracy theorist Rep. Leo Berman, R-Tyler, has even filed House Bill 295, requiring presidential candidates to provide a birth certificate for access to the Texas ballot. In a normal session, such wild hares would languish in committee; this session, the fringe right may have the votes to get them to the floor. The question becomes: What does the GOP caucus want to pass, and how unified will it be?
Whatever the majority's agenda, they'll have to move fast. The Legislature has only 140 days to set the state running for the next two years. Can they do it? The outlook isn't promising. Consider the job of the Sunset Advisory Commission: One of the state's points of pride is that it reviews every single state agency every 12 years. But in 2009, lawmakers reviewed so few agencies that they had to return for a special session just to pass legislation rescheduling the backlog. With a loaded and divisive legislative agenda, a seemingly impossible budget void to fill, and 28 agencies up for full or partial review, the expectation is that lawmakers, lobbyists, and staff will be back for special sessions over the summer.
And what of the Nov. 2 tea party revolution? For all the talk of a dramatic change in the status quo, the balance of power remains relatively unchanged. Republicans still hold all statewide offices, and the Senate is still split 20-11. There are two new faces in the upper chamber. On the Republican side, retired U.S. Army Lt. Col. Brian Birdwell will complete Kip Averitt's unexpired term, while Democratic former El Paso County Attorney José Rodríguez replaces veteran legislator Eliot Shapleigh, who stepped down before the primary. The surprise is that two other faces return: Senate Finance Committee Chair Steve Ogden, R-Bryan, and Sen. Jeff Wentworth, R-San Antonio, had both threatened to step down but ended up running again (much to the chagrin of Republicans in their districts hoping for a promotion). The elegant, almost glacial political dance that is the Senate will continue almost unchanged.
In the House, the GOP took 22 Democratic seats; add new lawmakers replacing retirees, and there are 34 freshmen in the new class. Some Democratic losses were regarded as marginal. Mark Homer held his Paris seat by only 2% in 2008 (a Democratic high-water year), and so was not expected to withstand a Republican backlash. Other defeats – for example, Patrick Rose of Dripping Springs – were body blows that deprived Democrats not only of current incumbents but potential candidates for higher office.
Of the 22 disappearing Dems, one name stands out: Waco's Jim Dunnam. As House Democratic Caucus leader, Dunnam has been the key figure in keeping his members a viable legislative force even as the minority party. Now they face a tough session without the man that led the Killer Ds on their quorum-busting flight to Oklahoma in 2003 and orchestrated the 2009 chubbing. The group's current chair, Rep. Jessica Farrar, D-Houston, looks likely to maintain her leadership position but does so while the House Dems are at a historic low ebb. Farrar has big shoes to fill.
The committee lineup will also shift dramatically, with nine of the 34 chairs from the 2009 session either retiring or losing re-election. In addition, two minority ethnic caucuses traditionally linked with the Democrats take on Republican members, as Stefani Carter of Dallas and James White from Hillister join the Texas Legislative Black Caucus, while the Mexican-American Legislative Caucus absorbs four new Hispanic Republicans and Edinburg defector Aaron Peña moves to the GOP side of the table. Locally, the Travis County delegation will include its first Republican since 2006 – Paul Workman, who ousted Democrat Valinda Bolton in a brutal and smear-heavy campaign.
There's undeniable potential for this to become a sea change Legislature, in which the Texas GOP establishes the perpetual majority it has long desired and reshapes the political landscape in its backward-looking self-image. With right-wing power brokers like Americans for Prosperity and Young Conservatives of Texas condemning everyone in the GOP ranks from Democratic defectors like Allan Ritter of Nederland to longtime conservative mainstays like Beverly Woolley of Houston, as "RINOs" (Republicans In Name Only), lawmakers may well view every vote as an ideological purity test.
However, ranking Republicans like House Appropriations Committee Chair Jim Pitts, R-Waxahachie, and Public Health Chair Lois Kolkhorst, R-Brenham, have already started trying to blunt tea party aggression against essential programs like Medicaid. Once on the floor, the more pragmatic GOPers are likely to work with the more seasoned Democrats – presuming there are enough of either. If that doesn't happen, then the dogmatically driven bloodbath of programs, agencies, and public institutions could be worse than even the bleakest predictions.
What follows are Chronicle reporters' brief previews of likely considerations in a number of high-profile issues – from the gaping budget deficit to the trickle-down effects on state infrastructure – to which the Lege will lend its very divided attention for the next six months. Join us for the ride – often outrageous, occasionally hair-raising, now and then even amusing. After all, it's the local political franchise of the human comedy. – Richard Whittaker
Budget: Deficit by Design
When it comes to funding state programs in Texas over the next two years, there's only one question: "How bad will it be?"
The long-predicted structural budget deficit will finally implode this session, due to three factors: 1) the ongoing national economic recession, 2) dogmatic resistance among most Republicans (and some Democrats) to fixing Texas' nonfunctional system of taxation, and 3) an abiding (and seemingly inexplicable) unwillingness to tap the state's $9 billion Rainy Day Fund. Since the state constitution requires a balanced budget, lawmakers must solve a predicted budget shortfall from current spending of somewhere between $20 billion and $28 billion for the biennium – a serious slab of the $182.3 billion budget passed in 2009 for the 2010-11 biennium. Out of that, only $77.1 billion was discretionary spending that the state can cut, and that figure was already down 10.5% from the 2008-09 biennial budget.
In essence, the budget has already collapsed. Last January, all state agencies were asked to identify 5% in cuts from their current general revenue spending and their dedicated general revenue budgets, where cash is placed into specific accounts by legislation. In August, the Legislative Budget Board released a list of $1.25 billion in items to slash from agency budgets immediately. Four months later, Gov. Rick Perry requested that the agencies find an additional 2.5% in cuts – and that reduced sum becomes the new baseline number for requests for the 2012-13 biennium. The burden has been shared disproportionately, with general revenue-dependent agencies getting hammered far worse than those that have alternative revenue streams like fees or federal grants.
Universities are already feeling the pinch, with liberal arts departments suffering worse than science and engineering faculty, who receive more business-backed research grants. Other agencies are already bracing for layoffs and furloughs: On Jan. 4, Commissioner of Education Robert Scott informed all 1,000 Texas Education Agency staffers that the agency's human resources department will be reviewing all positions. Considering how many state agencies are based in Austin, the local economic impact of any layoffs could be disproportionately severe.
The state is also sitting on a pile of underfunded obligations. In their legislative appropriations request, staff at the Employees Retirement System calculated that they will need to collect an additional 2.39% of payroll just to remain actuarially sound, otherwise the ERS won't have enough money to cover its payments. While the Teacher Retirement System of Texas should be sound through 2072, that has only been accomplished by holding pensions static for the last 10 years – that is, effectively cutting them by not accounting for a decade of inflation.
All this adds up to the cold, hard fact that legislators will be hacking down already parsimonious state spending to fill a deficit gap created in part by their predecessors. House Appropriations Committee Chair Jim Pitts, R-Waxahachie, has already warned that some agencies may be completely dissolved as the state attempts to cover its statutory obligations. Meanwhile, however, some lawmakers of both parties are using this period of intense fiscal scrutiny as an opportunity to push through meaningful reform of broken systems. Whether their measured approach will survive the tea party anti-government hysteria remains to be seen. – R.W.
Redistricting: GOP Power Grab
The decennial federal census was just completed, reflecting explosive Texas population growth – and it's time to redraw the lines of all political districts.
The previous decade saw a fierce battle: After Republicans won the Texas House in 2002, they attempted – at the behest of then-U.S. House Majority Leader Tom DeLay – an unprecedented second redistricting of congressional lines in 2003, because DeLay wanted more Republicans in the state's congressional delegation. Democrats cried foul, but Republicans called it deserved payback for 1991 redistricting. The Dems tried to gum up the works – first House members broke quorum by fleeing to Ardmore, Okla., then Senate Dems did the same, leaving for Albuquerque, N.M. – but eventually the GOP prevailed. Austin was at the epicenter of the fight, with liberal Austin being split three ways in an unsuccessful attempt to oust U.S. Rep. Lloyd Doggett from office.
Expect Republicans to stick it to Democrats and Austin again, especially since there are even more seats up for grabs this time: Texas will gain four seats in congressional reapportionment, increasing the delegation from 32 to 36. The GOP will get creative in its line-drawing to grab as many of those as possible and hold on to power for as long as possible in a state where the demographic trends (black and Hispanic populations are growing much faster than white) are running against them.
If the Lege fails to come up with a map, the lines might be drawn by the Legislative Redistricting Board (composed of the lieutenant governor, speaker of the house, attorney general, comptroller, and land commissioner); in any case, any plan will have to pass muster with the Justice Department or the courts for compliance with the Voting Rights Act. – Lee Nichols
Education: No Room at the Inn
The 81st, in 2009, was the "education session": House Bill 3 tweaked the school accountability system with an eye to making it less punitive, while HB 3646 was a supposedly sweeping overhaul of the state's malfunctioning school finance process. Both were intended to patch school districts' major holes for a few more years. This year, with education funding as likely as any other budget item to be slashed, the big push will be to re-fix school finances.
Senate Finance Committee Chair Steve Ogden, R-Bryan, has proposed a constitutional amendment that would totally rewrite the system, replacing capped local property taxes with a statewide property tax that districts could then supplement with voter approval. That would require a constitutional amendment in the next general election – an iffy proposition – and districts are looking for more immediate solutions. Unfortunately for employees, discussions have focused on giving districts more options for paying workers less – including layoffs and furloughs. House Joint Resolution 46 by Rep. James White, R-Hillister, could open that door by releasing districts from complying with any unfunded mandates. Similarly, tax-slashing proposals to repeal the class-size cap (currently at 22 students) and replace it by using a schoolwide average calculation could see some classrooms pushed to bursting point – especially in those districts already underfunded. – R.W.
Voter ID: GOP Pet Project Looks Rosy
The issue that ground the 81st session to a halt will probably zoom through the 82nd.
The debate: Republicans say voters should be required to present photo identification (or multiple other forms of ID) in addition to their voter certificates at the polls, in order to protect the integrity of the ballot.
Democrats say it's actually an attempt to disenfranchise women, the elderly, and racial minorities – groups less likely to have photo ID and more likely to vote Democratic. Dems also claim it's a solution in search of a problem, as voter impersonation is very rare and never an effective form of voter fraud.
The history: In 2009, the Senate grew unusually rancorous as Republicans forced the waiving of the traditional two-thirds rule to pass the bill over Democratic objections. In the House, as the session approached its end, Democrats "chubbed" the bill to death (a tactic similar to filibustering) – and, in the process, killed many other bills that were waiting in line behind it.
This session: The anti-Obama backlash in November gave Republicans a supermajority in the House, so any attempts by Dems to drag down voter ID this time will likely fail. The Dems' best bet would be to kill voter ID bills on rules violations, but in the end this is likely a lost cause. – L.N.
Women's Health: At the Mercy of the Hard Right
In keeping with conservative legislators' oxymoronic insistence that women cannot comprehend the consequences of abortion without state-mandated education – but are nonetheless perfectly suited to child rearing – again come bills that would deter women from seeking safe, legal abortion. Chief is the reprise of the proposal to require women seeking abortions to first undergo ultrasounds. House Bill 325 by Rep. Todd Smith and Senate Bill 130 by Houston GOP Sen. Dan Patrick would each require a doctor to show a woman seeking an abortion an image of the fetus (though she would be allowed to avert her eyes) while describing in detail fetal development and even playing for the woman the sound of the fetal heartbeat. This, along with other proposals – including the creation of a "Choose Life" license plate (HB 238 and SB 257) – have been narrowly defeated in the past; this session, with the GOP's House supermajority, women's health and choice advocates fear that such plans might finally find the governor's desk.
Moreover, the current fiscal situation clouds funding for all women's health, including the always vexed allocation for family planning. Lawmakers intent on erasing Planned Parenthood from the provider matrix have worked overtime to figure out ways to subtract from the state's largest provider of women's health screenings while not running afoul of the requirements attached to the overwhelmingly federal funds. This year things could be even dicier, particularly when it comes to spending certain federal funds that have been used for family planning but are also earmarked for programs for other at-risk populations such as the elderly. Lawmakers could legally shift some of that money to fill the gaps in other programs.
On a positive note, San Antonio Rep. Mike Villarreal is sponsoring a bill to make the pilot Women's Health Program, set to expire this year, a full-time health care strategy. The program provides health screenings to low-income women who wouldn't otherwise be eligible for Medicaid and has been wildly successful in saving state money – some $40 million in 2008 alone.
On the other hand, Sen. Bob Deuell, R-Greenville, has sought an opinion from Attorney General Greg Abbott concerning whether lawmakers can eliminate Planned Parenthood as a program provider. That opinion is due any day now; if Abbott figures out a way to give Deuell what he wants, it's safe to assume Planned Parenthood would sue.
It remains to be seen how lawmakers will continue to justify spending millions each year since 2005 on the Alternatives to Abortion program – which is designed to "encourage" women to complete their pregnancies but provides no medical services whatsoever. Last session, lawmakers raised the program's budget by a whopping 60% – to provide counseling to carry pregnancies to term and to provide referrals to other government-funded projects, like food stamps. It's not clear whether that will fly this time, but along the way, expect plenty of hypocritical grandstanding from the usual suspects. – Jordan Smith
City Beat: Hanging on to Crumbs
"Austin-bashing" is normally the local dread of any legislative session, and while this year the city will again seek to preserve local control, such concerns are being overwhelmed by the broader drama set to unfold this spring: the gaping state deficit.
"The overriding issue during the regular session of the 82nd Texas Legislature is the State budget crisis and the need for an estimated $15-25 billion in new revenue to keep State services at their current level," read the general principles outlined in the city of Austin's current legislative program. "All Texas cities will need to make sure that State government costs or revenue needs are not shifted to local taxpayers and residents out of proportion to the benefits obtained."
Among other priorities are fighting unfunded state mandates and seeking funding for city and county health care efforts. Local control initiatives are numerous, including a call to "protect the current status of the Texas electric markets and to maintain local control of taxpayer investment in Austin Energy" (the city-owned utility), opposing tax appraisal and revenue caps, fighting encroachment on water rights and water quality measures (a perennial), defending zoning authority within both the city and its extraterritorial jurisdiction, preserving eminent domain powers, and more.
More specifically, the city is seeking legislation regarding changes to the city Police Retirement System, bumping city contributions from 19% to 20% in October 2011, then to 21% in 2012. Conversely, the retirement system for non-public-safety workers may take a hit via city-sought legislation that would increase requirements for employees seeking full retirement benefits. The city again supports meet-and-confer bargaining for non-civil-service employees (the bill died last session), as well as state funding for city and regional transportation efforts, social services, and public libraries. Needless to say, with the deficit first and foremost in lawmakers' minds, all such funding may be so much wishful thinking. See the city's legislative program [PDF]. – Wells Dunbar
Criminal Justice: The Costs of Crackdowns
As of last week, 43 men in Texas have been exonerated via post-conviction DNA testing, and in the majority of those wrongful convictions, faulty eyewitness identifications played a role. (There have been other exonerations implicating related problems, such as prosecutorial misconduct.) Does the growing number of exonerees mean that the Texas criminal justice system needs reform? Yes, indeed it does. Does that mean that lawmakers will be looking to fix these problems during this session? Not necessarily.
A few of the modest reforms that looked ripe last session – including eyewitness ID and writ reform, which died as a result of voter-ID-bill-prompted chubbing – will return. For example, the eyewitness ID bill filed by Alpine Dem Rep. Pete Gallego (House Bill 215), partnered in the Senate by Houston Dem Rodney Ellis (Senate Bill 121), remains problematic. While both would require the state to draft a model law enforcement policy for conducting eyewitness IDs, a failure to follow that policy would not bar admissibility of the testimony – what's the point?
Looming over everything is the scary budget mess, which has led to much discussion of how to control or constrict the state's prison population, which currently hovers at just less than 160,000 inmates. The early word is that some combination of closing (likely older) prisons and moving more money into community supervision programs is probably on the agenda.
For budgetary reasons, it may also be difficult for lawmakers to justify creating more criminal offenses or ratcheting up the penalties on existing ones. There's hope that rational – if only fiscally conservative – thinking will affect the process. One such modest proposal is HB 227 by Rep. Todd Smith, R-Euless, to exempt from the fast-growing (and costly) sex offender registry many youthful "Romeo and Juliet" offenses (passed last session but vetoed by the governor). A similar proposal has been filed by Dallas Dem Sen. Royce West, but his version (SB 198) also proposes that the state adopt the language of the federal Adam Walsh Child Protection and Safety Act – an unfunded mandate that could cost an estimated $39 million and increase the burden on local police departments. For more on the Adam Walsh Act, see "Will Texas Be Safe for Romeos and Juliets?" – J.S.
Drug War: Save Lives and Save Money?
Creating new crimes and long punishments is still on the agenda – again – for Waco GOP Rep. Charles "Doc" Anderson, who this year continues his fruitless 2009 quest to make illegal the drug Salvia divinorum, a member of the sage family and the most potent naturally occurring hallucinogenic (House Bill 470). His dramatic attempt to get support for an all-out ban fell on deaf ears last session – in part because medical researchers find the substance promising for a number of therapeutic applications.
Following Anderson's lead are Edinburg's recent GOP convert Rep. Aaron Peña (HB 49) and colleague Fred Brown, R-Bryan (HB 108), who are proposing to ban one or more synthetic pot compounds. The rush to ban the substances, used to lace herbal compounds and marketed as "K2" or "Spice," doesn't mean researchers have proven harm; they haven't. Yet if these folks have their way, possession of the not-pot could mean up to life in prison.
By contrast, several of the rational drug reform measures we've come to expect have not yet been filed – including a bill to downgrade penalties for marijuana possession or to create an affirmative defense for medi-pot possession. But back already is San Antonio Dem Rep. Ruth Jones McClendon's effort to legalize an anonymous needle-exchange program, a bid that passed in 2007 as a pilot project before being sabotaged by Bexar County District Attorney Susan Reed, who said she would prosecute anyone who participated in the program for paraphernalia possession. In 2009, the measure died despite strong support from Sen. Robert Deuell, R-Greenville. McClendon has brought it back as HB 117 – in the hope that the fifth time will be the charm for this smart-on-drugs (and communicable disease) harm-reduction program that the Department of State Health Services has estimated could save the state millions in health care costs. Maybe that positive fiscal effect will finally resonate? – J.S.
Transportation: Where’s the Road Fairy?
In 2009, the Texas Department of Transportation got slapped around by legislators in a Sunset Review that was never completely finished, and last week, a consultant gave the agency a restructuring plan that called for firing its top executives. The major problem facing the department and legislators: how to pay for future transportation projects. The state's gasoline tax – still stuck at 20 cents per gallon – hasn't been raised since 1991, and current projections show that the agency can't possibly collect the revenue necessary to complete desired projects. Last year, Sen. John Carona, R-Dallas, had the temerity to suggest raising that tax – and for his gall, thanks to Lite Guv David Dewhurst, Carona is no longer chair of the Transportation & Homeland Security Committee. Don't expect the new crop of tea partiers to look favorably upon similar suggestions this session, although we're sure they'll bitch plenty about awful Austin traffic. – L.N.
Take a Deep Budget Breath
The refrain of "greater transparency" is a constant among government watchers, and Austin Sen. Kirk Watson says he'll act on it in the legislative session that began Tuesday. Saying that the state's current money woes have been caused by previous budgets balanced through "debt, diversions, and deception," Watson last week announced a proposal that would force the Senate to wait five days after the conference committee drafts the final budget before voting on it. "[L]egislators, advocates, the media, and other Texans generally have about 48 hours, if that, to sort through an almost 1,000-page document" before the final vote, which occurs at the hectic end of the session, Watson complained. "Taking five days – a business week's worth of budget honesty – would help us all evaluate whether Texas, even in the midst of a tough economy, is maintaining its commitments to schools, health care for seniors, border security, and other moral priorities that will keep Texas economically competitive." Last week, Watson issued a press release boasting support for the wait from both the Texas Public Policy Foundation and the Center for Public Policy Priorities – two think tanks on opposite ends of the ideological spectrum. – L.N.