The budget approved by the Legislature last month doesn't balance, and Comptroller Carole Keeton Strayhorn says she won't certify it. This, ladies and germs, is a first. In all the years that the Texas Constitution has called for a balanced budget, the Legislature has spent less than it had.
Strayhorn says this Legislature's budget for the next two years proposes spending $186.9 million more over the next two years than the state will have available. She sent it back to them for another try. If she prevails, congressional redistricting will be only one of several issues that needs to be settled in special session this summer.
Her announcement left the governor, the lieutenant governor and the speaker of the House scrambling for solutions that could save the budget, possibly without a special session.
They were also talking to Attorney General Greg Abbott about challenging the comptroller's decision in a lawsuit filed directly with the Texas Supreme Court.
The budget includes a fail-safe provision that says the comptroller should make budget cuts if the budget calls for more spending than the state can afford. That does a couple of things Strayhorn and her lawyers think are unconstitutional: It undermines her constitutional duty to reject the budget if it's spending exceeds expected revenues. Instead of rejecting it, the provision (it's Article 9, section 11.15, if you're curious) says in effect that the comptroller should make budget cuts and certify the budget. It also has her making spending decisions, a duty she contends is the province of the Legislature. She won't make those cuts and says she couldn't if she wanted to.
Strayhorn reads the state constitution to say she's supposed to return an out-of-balance appropriations bill -- marked as such -- to the House where it got its start. She even went to the trouble of copying that page of the constitution for reporters and getting her staff to highlight the relevant passage in each copy with a yellow marker.
Because the budget is out of balance, the game is over, she said; with the determination that things don't match up, she doesn't think she has the option to then go through the budget with an axe. That might be good law; taken alone, it is certainly good politics. Strayhorn's decision to send the budget back to the Legislature leaves it to senators and representatives to make spending cuts or to raise revenues to balance an already tight spending plan. Those aren't the sorts of decisions that make friends, and from her standpoint, the Legislature that made the mess in the first place ought to do any needed repairs and remodeling. But the budget is an ugly one, and legislative leaders are nervous about running it back through the House and Senate for another messy debate.
Also, there is a deadline problem. The budget needs to be in place by July 11 or thereabouts for the school year to start on time. The budget starts the machinery that sends out money, allows school boards to get a fix on their budgets and tax rates, and ends with the beginning of the school year, which starts in mid-August. Time spent repairing the budget is time not spent working on congressional redistricting.
Strayhorn's decision not to certify the budget is a high-risk play. If she prevails in a high-profile fight with the state's top elected officials, she could scoot right past some or all of them on the political ladder. If she loses, she's probably serving in her highest and last office.
By all accounts, Gov. Rick Perry, Lt. Gov. David Dewhurst and House Speaker Tom Craddick all got word of the non-certification only a little while before she announced it to the rest of the world. By the end of the day, they were talking to Abbott about taking the comptroller to court.
Constitutional Crisis, or at Least a Good Fight
While the Legislature was in session, new Attorney General Greg Abbott was pretty quiet. Now he's moving to center stage. Abbott met with the top three officials in the Pink Building after Strayhorn announced she is not certifying the budget. By late afternoon, he'd gone to her office to argue their side and to tell her they were going to sue her if she didn't back down.
Strayhorn brought in some extra legal help a couple of weeks ago to help her through the constitutional thicket, and became convinced, according to people close to her, that she was on the right course. She put her staff to work adding and subtracting their way through the legislation that passed during the session, pulling in savings from this bill and subtracting spending in that one and so on. When they got to the bottom line, they were $186.9 million short of what they needed.
While she says you can't blame a particular thing for the red ink, Strayhorn did single out a last-minute change to a transportation bill that moved $236 million out of general revenue, thus tipping the scales in the wrong direction. That became apparent at least a week ago, and legislators told the comptroller's staff that the House had voted on the "wrong version" of a conference committee report. The result was a transfer of funds on an incorrect date, and that transfer -- which, after all, got into the final bill -- was enough to throw the budget into the red. Late attempts to fix that with letters of legislative intent signed by the bill authors didn't satisfy Strayhorn. While she was pointing out the problems, Gov. Rick Perry was on a three-city public relations tour, pausing at each stop for a ceremonial signing of the same transportation bill that upset the cart. There could be a fix available there, if anyone wants it. Perry hadn't yet signed the actual bill; by vetoing it, he could potentially solve the budget mess without reopening the entire budget.
The strategy in the Pink Building was to try to find a way to get the budget balanced in time for Strayhorn to certify it and for Perry to sign it. Failing that, they talked about suing to enforce what's being called the "anti-bounce" provision in the budget. They would go straight to the Supreme Court in the hopes that the nine justices would order Strayhorn to make $186.9 million in cuts and then certify the budget and send it to the governor.
If Strayhorn is correct, the budget simply dies for lack of certification. To have a spending plan in place for the next fiscal year (starting September 1), the Legislature will have to approve a new budget. In the overall scheme of things, $186.9 million is only a fraction of the $117.4 billion budget, and a fix could be relatively easy. There's that problem of getting approval for a second time, and the subsequent wait for another round of certification, line item vetoes, and so on.
They haven't made an appearance in this saga yet, but the whole mess could play into the hands of the Democrats. It's not difficult to slow consideration of a budget. There's a mid-July deadline to get the schools ready to go. There's a loose deadline on redistricting, since they have to factor in time for court appeals and U.S. Justice Department approval of new plans and such. The unbalanced budget, and the fight over it, might be giving Texas Democrats some levers they didn't have.
The Problem Everybody Thought was the Problem
Until the comptroller zapped the budget, the tiff over certification had to do with timing, and it revealed an interesting little rip in the state constitution. The comptroller doesn't have a time limit on how long it takes her to certify a budget. She reads the constitutional to say that the governor doesn't get to consider the bill until she's done, and she also says it doesn't matter if the certification passes the governor's deadline for vetoing bills. The governor's attorneys think she's wrong, and think that a slow certification could take away the governor's ability to veto lines in a budget or to kill the whole bill. If that's right, every comptroller from now on has a huge advantage over every governor from now on. And the constitutional right of veto, at least on that bill, belongs to the comptroller.
The Very Nature of Things
If you leave a brisket on a countertop within reach of your dog, your dog will eat the brisket. It doesn't matter that the dog knows it will be punished. It doesn't matter if the dog has never done it before. It is a brisket. It is a dog. What do you expect?
Congressional redistricting in Texas is set up like that, and would be, probably, even if the partisan roles were reversed. As it is, the Republicans are in a position to draw new maps that are more favorable to Republicans. For the first time, everything is in place for them: They have the legislative strength and they have the people in the right offices of government. Unlike the brisket-stealing dog, they face no law or rule that prevents them from going forward with the attempt. Like the dog, their reward outweighs their risk. You got your motive. You have opportunity. What do you expect?
Gov. Rick Perry decided in the end not to disguise the reason for a special session. In a letter to Lt. Gov. David Dewhurst and House Speaker Tom Craddick, he said the session will be on congressional redistricting, that it will start on June 30, and that he might add some issues after it gets going. (All of this happened before Comptroller Carole Keeton Strayhorn put the stink on the state budget.)
Now that it's underway, it could happen quickly. House leaders think they might be able to get a redistricting bill out of committee, off the floor of the House and on its way to the Senate before July 4. That national holiday is on the Friday of the first week of the special session. They hope they can get the session over with in two weeks. At worst, they want to be done before the start of the National Conference of State Legislatures convention in San Francisco, which starts on July 21.
Republicans justify their hunger by saying the people who wrote the constitution intended lawmakers, and not judges, to draw the maps. The court-drawn maps protect incumbent Democrats and result, they argue, in a congressional map that doesn't fairly reflect voters' preferences, as demonstrated by voters' choices in other races.
Democrats argue that the maps in place were legally drawn and already favor Republicans (on paper) and ought to be left alone. They say there are few precedents -- and no local ones -- for drawing a map when not compelled either by the courts or the redistricting laws. And they say the GOP, unhappy with the results in the last congressional elections, is trying to overrule Texas voters.
The Republicans start with a better hand. The House will hold hearings in six cities at the end of next week. The special session will start on the following Monday. The House Redistricting Committee, headed by Rep. Joe Crabb, R-Humble, could spit out a bill before the end of the first day, and almost certainly will approve something before the end of the second day of the session. There are 88 Republicans and 62 Democrats in the House. Unless the Ds can get 51 people to walk again -- a politically risky and logistically improbable idea -- the House will zing out a bill in a hurry.
For drama, look to the eastern end of the Capitol, where the Senate's two-thirds rule could make for a close vote. The Senate's dozen Democrats could block the bill if they remain in a bloc, and the game in July will be all about how many Democrats vote with the GOP to allow the redistricting issue to come to the floor. In the upper chamber, the congressional redistricting bill will go through the Jurisprudence Committee headed by Sen. Robert Duncan, R-Lubbock.
One-Half is Easier than Two-Thirds
The first bill that gets out of Senate committee -- whether it's a bill or a joint resolution -- has to be considered before anything else. To go out of order requires a two-thirds vote. That's the Senate's two-thirds rule, in a nutshell, and that first bill is called a blocker. Without it, a simple majority can pass a bill. Lt. Gov. David Dewhurst has said he's inclined to have a blocker bill in the special session. It'll make things harder, but it honors tradition in a tradition-happy place. But don't believe it if you're told it was always thus: In 1992, the Senate took up a (less controversial) redistricting bill and didn't have a blocker on the agenda. Some of the Republicans in the Capitol would like to see that precedent followed. It would make congressional maps easier to swallow and would get everybody out of all this horse-trading stuff. For the history buffs, put it this way: There is usually a blocker, but not always.
Three Senate Democrats aren't considered solid party-line voters on this subject, which means they might vote with Republicans to bring up the legislation. Once it's up for consideration, all that's required is a simple majority and the GOP should have no trouble getting 16 of 19 senators to go along. The swing Democrats are Ken Armbrister of Victoria, Eddie Lucio Jr. of Brownsville and Frank Madla of San Antonio. Two of them, plus 19 Republicans, equals two-thirds of the Senate.
Looking for pressure points? It's hard to find them in the tea leaves for next year's elections. Senators serve four-year terms and half of them are up for election next year.
The Republicans on the list include Teel Bivins of Amarillo, Kim Brimer of Fort Worth, John Carona of Dallas, Robert Duncan of Lubbock, Craig Estes of Wichita Falls, Troy Fraser of Horseshoe Bay, Chris Harris of Arlington, Mike Jackson of La Porte, and Tommy Williams of The Woodlands. Carona represents a solidly Republican area and is probably the weakest of the bunch politically (for supporting the Democrat over the Republican in the last race for lieutenant governor), but Republicans aren't worried about his vote on congressional redistricting.
Only six are Democrats: Mario Gallegos of Houston, Juan "Chuy" Hinojosa of McAllen, Lucio, Leticia Van de Putte of San Antonio, Royce West of Dallas, and Judith Zaffirini of Laredo. Most vote-counters have Lucio on the fence on this vote, but his district is solid.
There's no veto pressure. Between now and the beginning of the legislative session, the governor will finish approving and disapproving the last of the bills that passed during the regular session. Perry won't be able to punish lawmakers by vetoing bills if they don't play along.
It's easier to find possibilities on issues. While he won't have vetoes in hand, Perry will be able to reward legislators who help. He hinted in his letter to Craddick and Dewhurst that he might add issues to the session's agenda once redistricting is underway. He mentioned two: Funding for the Regional Academic Health Center in Harlingen, and funding for Texas Tech University's medical branch in El Paso. The mention serves notice to Border lawmakers that they should show up for the session -- think of it as a preemption aimed at people who enjoy Ardmore, Oklahoma, in the summertime (all but one El Paso Democrat went to Ardmore during May's legislative strike). The RAHC is dear to Lucio in particular, however, and could be trade bait to attract his vote on redistricting. Madla has told some reporters he'd like to revive some winery legislation that failed during the regular session.
Two years ago, the conventional wisdom was that Lucio and Gallegos were both interested in running for Congress. Several of the maps that appeared during that time had open seats with loads of Democratic Latino voters in Cameron and Harris counties. The implication was that they'd trade a yes vote for a spot in the Texas delegation. That would work for Republicans since the law requires them to maximize the number of seats winnable by minority candidates. But Gallegos and Lucio now say they're not interested in running, and Gallegos is considered a solid vote for the Democrats against any new plan for congressional districts. Take that trade bait away for now.
On the other side of the aisle, Democrats have been hopeful about winning the votes of Sens. Bill Ratliff, R-Mt. Pleasant, and Jeff Wentworth, R-San Antonio. Ratliff has held his cards close, as usual, saying he wants to see a bill before he'll commit his vote. (He's also the senator fielding calls from one Karl Rove of Washington, D.C.)
Wentworth says he'll vote to suspend the rules and bring congressional redistricting up for a vote. He has also said he doesn't like the map touted during the regular session -- the plan that triggered the Oklahoma Holdout by the Democrats -- because of what it does to Travis County. Four different people would represent residents of the state capitol in Congress, and it would be possible to elect those four people without choosing someone who lives in the city of Austin. Part of that county is in Wentworth's district. New maps are being drawn all over the place, but it's impossible to know what's moving forward until something actually moves forward. That might happen before the public hearings, but it could be that nobody sees an "official" map until the special session begins.
To do redistricting in a hurry, Texas House leaders put together a fast-track hearings schedule that involves three subcommittees, six locations and two days. That gets it all done in a hurry, but it also spreads out the experts on both sides, who normally go to each hearing with their ears opened for nuances that can be useful -- or harmful -- in the inevitable court cases.
The first committee will meet Thursday, June 26, at the University of Texas campus in Brownsville and Saturday, June 28, on the Texas Southern University campus in Houston. The members: Reps. Geanie Morrison, R-Victoria, chair; Ron Wilson, D-Houston, vice-chair; Phil King, R-Weatherford, Vilma Luna, D-Corpus Christi; and Robert Talton, R-Pasadena.
Committee number two meets Thursday at the UT downtown campus in San Antonio and Saturday at the UT Southwestern Medical Center's north campus in Dallas. Members: Reps. Kenny Marchant, R-Carrollton, chair; Kent Grusendorf, R-Arlington, vice-chair; Mike Krusee, R-Round Rock; Ruth Jones McClendon, D-San Antonio; and Richard Raymond, D-Laredo.
Number three meets Thursday on the Texas Tech campus in Lubbock and Saturday at Stephen F. Austin University in Nacogdoches. Members: Reps. Joe Crabb, R-Humble, chair; Mike Villarreal, D-San Antonio, vice-chair; Kino Flores, D-Mission; Carl Isett, R-Lubbock; and Jim Pitts, R-Waxahachie.
The hearings start at 9 a.m. and go all day. The full redistricting committee will meet on June 30, the first day of the special session, and some of the folks in management think the House could be finished with its version of bill within a week of the first hearing on the subject. The Democrats are already kicking, saying the hearings cut out voters in Far West Texas and that committee members from South Texas aren't going to be at the South Texas hearings.
Flotsam & Jetsam
Railroad Commissioner Victor Carrillo is starting early. He'll announce his bid for election to that office with a three-city jaunt next week. That includes stops in Abilene (the home town), Midland (where a bunch of the oil and gas regulating agency's constituents reside), and Dallas (home to zillions of Texas Republicans). Carrillo is the only announced candidate, but it's early. Filing doesn't start until December for the 2004 elections. Gov. Rick Perry appointed Carrillo, a former Taylor County Judge, to the RRC last February.
He got an early boost from the honchos at the Republican Party of Texas (which will be running the March primary if he gets a Republican opponent). State chairwoman Susan Weddington, and vice chairman David Barton, sent an email to Republican mucky-mucks endorsing him. They were careful to say they weren't doing it in their official capacity; the email went to a list that included members of the State Republican Executive Committee, county chairs and presidents of GOP auxiliaries in Texas.
• After some kicking from cities and school boards -- and more from their trade associations -- Gov. Perry signed the ethics bill into law. It requires local officials in bigger cities and in bigger school districts to publicly file the same personal financial disclosure forms now used by state officials. The Texas Municipal League and the Texas Association of School Boards were incensed, but the governor ignored their requests to veto the bill.
• Wanna know what brought in the most mail? Legislation that would let Del Mar College in Corpus Christi extend its taxing district to neighboring counties that also benefit from that community college. At mid-week, Perry had received 6,294 letters, emails and faxes on that subject. By contrast, the ethics bill, which got more headlines around the state, generated only 426 letters, and 267 of them were from people who favored that bill. Another college deal -- changing the name of Southwest Texas State to Texas State -- generated 187 favorable letters and 250 negative ones.
• The governor's deadline for signing or vetoing legislation is Sunday, June 22. At our deadline, he and his aides were trying to get done with everything by the end of the day on Friday. We're not saying they can't do it, but it would be a modern record. At the beginning of the week, there were more than 1,000 bills still in the hopper.
Political People and Their Moves
Lydia Camarillo has been named vice president of the Southwest Voter Registration Education Project. That's based in Los Angeles, but she'll be in the San Antonio office, working on voter signup and turnout in advance of next year's elections. She was the organization's executive director for five years before leaving to put together the Democratic Party's national convention in 2000. Since then, she's been consulting...
Appointments: The governor named two more appointees to the House Select Committee on Public School Finance, a panel that now includes three of his appointees, a mess of House members named by Speaker Tom Craddick, and zero state senators. The state's top three officials haven't settled on how best to cook up school finance formulas for a special session on that subject. Perry's new appointed are Jack Ladd, a Midland attorney, and Harvard economics professor Caroline Hoxby, who is a MacArthur Foundation fellow and a Brookings Institution adviser on schools and school finance...
Gov. Rick Perry named Jocelyn Levi Straus of San Antonio to another term on the State Preservation Board, which oversees the State Capitol and other properties...
Perry named Robert Nichols of Jacksonville to another term on the Texas Transportation Commission. Nichols, an engineer, will serve until February 2009 if the Senate confirms him...
Promoted: several national publications report that Scott McClellan, son of the state's comptroller and a spokesman for the White House, will be the next press secretary for President George W. Bush. McClellan has worked for Bush since the gubernatorial days... Recovering: Sen. Eddie Lucio Jr., D-Brownsville, after a heart attack in Fort Worth. His aides described the heart attack as a mild one; Lucio was listed in serious condition and was recovering from an angioplasty as we went to press...
Quotes of the Week
Comptroller Carole Keeton Strayhorn: "Regrettably, I cannot certify this bill. This isn't about what I like or don't like... I would have loved for the Legislature to have adopted a budget I could certify."
Lt. Gov. David Dewhurst, saying in response that an "anti-bounce" provision in the budget was vetted by the comptroller's attorneys and the attorney general: "This provision has been in the budget for 10 years and is designed to deal with a situation of precisely this nature... By not certifying the budget, local schools, healthcare, public safety and other government services are in jeopardy over an issue that could have been easily avoided."
The take from House Speaker Tom Craddick: "We are disappointed by her decision, but I feel sure that we can quickly and efficiently fix the appropriation with which she took issue -- and get a budget out that she will certify and the governor will sign.
Gov. Rick Perry, in a letter calling for a special session on congressional redistricting: "I believe duly elected officials, not federal judges, should be responsible for drawing district lines."
Lt. Gov. Dewhurst, quoted in the Dallas Morning News (before Perry's letter) on whether he wanted to take up congressional redistricting in a special session: "The Republican in me would. The president of the Senate in me wouldn't."
Paul Cowan, aide to Sen. Eddie Lucio Jr., D-Brownsville, telling the San Antonio Express-News how his boss -- who was in the hospital with coronary problems -- would react to the governor's letter: "If he knew what Perry wrote on the deal, he'd have another heart attack."
Sen. Rodney Ellis, D-Houston, telling the Houston Chronicle that the Legislature should work on criminal justice issues left undone during the regular session: "If we do come back, I plan to rock and roll. I will use it as an opportunity to spend taxpayers' money on something that does matter."
Former Oklahoma Gov. Frank Keating, in a letter resigning as chairman of a panel of lay Catholics investigating sex abuse of parishioners by clergy after complaints about his public remarks: "My remarks, which some bishops found offensive, were deadly accurate. I make no apology. To resist grand jury subpoenas, to suppress the names of offending clerics, to deny, to obfuscate, to explain away; that is the model of a criminal organization, not my church."
Texas Weekly: Volume 20, Issue 2, 23 June 2003. Ross Ramsey, Editor. George Phenix, Publisher. Copyright 2003 by Printing Production Systems, Inc. All Rights Reserved. Reproduction in whole or in part without written permission from the publisher is prohibited. One-year online subscription: $250. For information about your subscription, call (800) 611-4980 or email biz@ texasweekly.com. For news, email ramsey@ texasweekly.com, or call (512) 288-6598.