Government by Lawsuit Gives Cover to Texas Lawmakers

Travis County Courthouse in Austin, Texas.
Travis County Courthouse in Austin, Texas.

Judges have been telling legislators what to do since we set up government to replace knife fights and bar brawls. It’s a logical way to get things done: elect people to represent you, and set up a system of redress to keep them in check.

Simple enough.

The current school finance system was devised by lawmakers in the face of a legal threat. So was its predecessor, and that one’s predecessor. When lawmakers won’t spend the money or make the necessary cuts to keep things constitutional, the courts demand remedies.

Government by lawsuit in Texas bloomed in the 1980s, with expensive and program-shaking rulings over the treatment of prison inmates, residents of state schools and state hospitals, and public education financing.

Lawmakers learned some things. The courts can boss them around if they get too far out of line. The state cannot fall below certain standards, at least with the current state Constitution in place. And, importantly, voters will let their elected officials break their promises if the courts are holding gavels over their heads.

 

That last item isn’t in the civics textbooks, but it ought to be. It gives legislators an option when they’re stuck between their promises. Conservative lawmakers in Texas know all about the Tea Party, and many have renewed their vows in favor of small government and in opposition to new taxes. At the same time, many of their constituents live where they live — think suburbs — because the homes are cheaper and newer and the schools are often better.

In Texas, those two constituencies are in conflict — it’s difficult to please both groups and to also take care of other expensive promises and obligations like prisons and highways and Medicaid and on and on.

The courts offer a way out. Some of the state’s school systems sued the state earlier this month over its school spending, saying state financing favors schools and students in areas of the state where property is worth more and property taxes are relatively low. Another school finance lawsuit is in the works. Last week, the Texas Supreme Court heard a challenge to the state business tax that helps finance schools. Another lawsuit challenging that tax is percolating.

The current school finance system and the tax that helps fuel it came out of a special legislative session in 2006, when lawmakers wrote a school finance plan that had been impossible, politically, until the courts set a deadline.

F. Scott McCown, who now heads the Austin-based Center for Public Policy Priorities, presided over school finance cases when he was a state district judge. He said such lawsuits act as a catalyst to action and as a shield for tough votes. “It’s a comment on our democracy that they have to have a cover to do what they’ve known all along they were going to have to do,” he said. He doesn’t think lawmakers deliberately try to draw litigation, but he added, “They’ve been stymied by the process.”

Five years later, it’s all back. That 2006 “fix” doesn’t balance, producing about $10 billion less in revenue every two years than it obligates the state to spend on education, creating a structural deficit. The state’s Rainy Day Fund could have $7 billion in it by the beginning of the 2013 legislative session, according to the most recent estimate from the state comptroller, but lawmakers arbitrarily cut about $4.8 billion from the state’s Medicaid budget earlier this year, saying they could make it up, if they must, when they return in 2013. That will come out of the Rainy Day pot, along with other unexpected costs that come up between now and then.

It’s basic arithmetic: Lawmakers either need to cut programs or find more money. But there is a way to do it without making either of those two mobs in the sixth paragraph unhappy. David Thompson, an attorney preparing the second of those school finance lawsuits, said last month that he got a text message during the legislative session from a Republican lawmaker that said "Please sue us soon."

When it’s over, they’ll tell the voters they had no choice but to do what the courts tell them to do. It works every time.

 

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