This special session of the Legislature never officially convened on the East end of the Capitol, and if the Democrats came back this minute, there wouldn't be time to pass a congressional redistricting plan. The Senate never got a quorum, and could never send bills to committee, much less hear them, amend them, pass them, and all that jazz.
If the rules are not suspended — and the Senate, even if it had a quorum, doesn't appear to be in a mood to move things along — it takes a minimum of five or six days to get a piece of legislation through the system. If the folks in New Mexico suddenly came home and went to the Pink Building, the Republicans who want a congressional redistricting bill probably couldn't move one through.
That's the case for closing the doors right away.
The case for leaving them open? The 30-day special session ends on Tuesday, and if it ends without having accomplished anything, it's because 11 senators left for New Mexico. Let it end on their account, and don't do anything to share the blame with them.
Either way, it's done within a few days, and the discussion has moved on to the next thing: What's the next thing? Again, there are several ways to go about it, and most of the argument appears to be on the Senate's end of the building.
One faction wants Gov. Rick Perry to call a third special session as soon as the second session ends. That keeps the pressure on the Democrats, the thinking goes, and they eventually have to come back. But the pressure applied during the current 30-day session didn't do anything to get congressional redistricting passed, and the Democrats have said they'll stay in New Mexico for another month if they need to. Nobody believed them the first time they said that, but now that they've done it, there is some evidence that they were serious.
Faction number two wants to disarm and cool down and talk. They'd be happier to see the Guv wait anywhere from a few days to a couple of weeks. The thinking is that this might work better if the senators aren't shooting at each other in daily news conferences 800 miles apart and if they can sit down and find some way for everyone to save some face and work things out. At a minimum, the senators in the West might break camp and come home.
And there's a variation on the cool-down idea that makes the Democrats nervous. Gov. Perry doesn't have to say when he'll start a third special session. He's already made it clear that he plans to keep this going, as he puts it, until there is a new congressional redistricting map. Lt. Gov. David Dewhurst has made it clear that he won't put the two-thirds rule back in place for this issue. And House Speaker Tom Craddick has already demonstrated twice that he's got the votes in his chamber to pass a map that tilts the congressional table strongly in the Republican direction. But they don't have to show their hand — they can call a special session the moment the senators touch Texas earth, or they can wait. Why increase the Democrats' level of comfort and certainty?
Democrats in the House were caught off-guard at the beginning of the session when Republicans took advantage of a low turnout to suspend the rulebooks to pass a bunch of legislation in a hurry and without the Democrats in the room to hinder them. They got a four-fifths majority of the members present — an overwhelmingly Republican mix — to skip committees and pass congressional redistricting and other legislation on the spot. The Democrats are trying not to get caught again, and say they'll try to make legislation take the normal route in a third special session.
The Beatings Will Stop When Morale Improves
Senate Republicans imposed fines to get the Democrats to come home, and then they put some sanctions on top to try to encourage the Democrats to pay the fines. The fines will stop when the session stops — you can't fine a senator for not showing up on a day when the Senate is not in session, after all — but the sanctions laid on the offices of those senators will continue, apparently, until the fines are paid or until everyone kisses and makes up.
That means the pox will continue on the houses of senators in this form: Aides to the senators who went to Albuquerque can't park at the Capitol (on the first day, the traffic cones put in those spots were adorned by Democrats and sympathizers with flowers). Subscriptions were canceled. The mail service in the Pink Building is skipping their offices. Their cell phones were canceled. Their monthly allowances for postage were cut to $200 a month. They can't use meeting or press conference rooms at the Capitol. According to aides to the lieutenant governor, those sanctions will remain in place until the New Mexico Holdouts pay fines for breaking the quorum in protest of congressional redistricting. If the session runs through Tuesday and the Democrats stay on the lam, each would owe $57,000.
Lawyers on both sides will go to federal court in Laredo on Wednesday, in part, to ask a judge whether those fines, and those sanctions, are legal.
Practically, on the Fence
The Democrats and their lawyers say the state doesn't have the legal power to haul them into the Senate chamber to create a quorum, whether they are in Texas or not. It's clear that Texas doesn't have the power to cross its borders into another state to enforce a rule that doesn't involve a criminal charge, and that's the easy explanation for the visits to Oklahoma and New Mexico.
But the lawmakers aren't as confident about what would happen if they just returned home to El Paso, Laredo, Houston, Dallas, Brownsville, McAllen, San Antonio, and Austin. As a matter of law, the Democrats don't think the Senate or the House can order arrests of legislators who won't show up. As a matter of practice, they don't think the people still in Austin agree with that interpretation of the law; the Republicans in the Senate, for instance, have said the Senate Sergeant-at-Arms has the right to haul them in, and has the right to hire people to help with the hauling. If the Democrats returned, arrests could follow, with the courts left to sort it out later.
At this point, you find two sentiments among legislators. One is that arrests of some sort or another — anything from a howdy to a set of handcuffs — would put senators (or House members, if they were on the run) in the papers and on television making what amounts to Perp Walks on their way to a redistricting vote. Pictures like that make for dangerous mailers in political campaigns, and nobody likes to hand bullets like those to their political enemies.
Another faction contends that arrests would do more harm to the management, and would in particular damage any new congressional redistricting maps approved as a result. The argument in court would be that the maps only got passed after 11 Democrats who mostly represent minorities were put under house arrest. The argument in some legislative districts would be that the arrests were unjust and directed against senators trying to protect voters' rights. In a safe Democratic district, that might not be a political blemish at all.
Talk of arrests makes some Republicans nervous as well, and for the same reason. Lt. Gov. David Dewhurst has said he doesn't want to see handcuffs on anybody while he's got the corner office. But there's a group of the left-behinds in Austin that wants the Democrats brought in by (almost) any means necessary. They don't believe the Democrats have the right to do what they've done, and don't think arrests would be an unreasonable response to the problem. And some of the Democrats don't want to come back, even after the end of this session, until the consequences are clear.
A Change of Venue
The standoff is in roughly the same condition it was in three weeks ago. The rhetoric is hotter, but nobody's budging from the original positions. The action now moves from the Capitol to the courts.
Democrats dropped the lawsuit they filed in state district court and merged their complaints with another lawsuit they filed in federal court in Laredo. They want the court to say they have a First Amendment right to vote with their feet — leaving the state to break a quorum and thus deny passage of legislation they don't like — and that the sanctions imposed by their colleagues are illegal.
Also, they want the court to say those sanctions violate due process and equal protection provisions of the constitution. The sanctions are based on a "rule" passed by a Senate without a quorum. The senators present said in their resolution that they would add the sanctions to the permanent rules when a quorum returns to Austin, giving the Democrats an extra reason to stay away. That's where the Democrats say the due process was violated. And the penalties, they say, are only being imposed against minority senators or senators who represent mostly minorities; that's the equal protection claim.
The folks on the other side point out that the penalties are only being imposed against senators who broke the quorum and say they'd have done the same for Anglo Republicans if they'd left. The Texas constitution and the Senate rules, they argue, give them the right to force absent senators home, and they went to Attorney General Greg Abbott for a sign-off on everything they've done so far.
All of that will be tacked onto the federal lawsuit that said the changes in the two-thirds rules and other procedures ought to be pre-cleared by the U.S. Department of Justice, since those changes amount to tinkering with voting in a way that triggers the federal Voting Rights Act.
Lawyers for the Democrats filed that suit in Laredo, and ended up with U.S. District Judge George Kazen, a Jimmy Carter appointee who's part of a long line of South Texas Democrats. He'll hear the constitutional issues, and will be part of a three-judge panel that will hear the Voting Rights Act issues. The other two members of that panel — who'll be chosen by the 5th U.S. Circuit Court — hadn't been named when we went to press. The first hearings in that case are set for Wednesday.
The Republicans are telling the court and the Justice Department that they don't need pre-clearance, but they went ahead and asked DOJ for it anyhow. A letter to the feds signed by Assistant Secretary of State Geoff Connor says the two-thirds rule isn't really a rule. Connor argues that it hasn't always been used in cases like this in Texas. And he says nothing has changed in the way Texas does redistricting since 1972, which is the trigger date in the federal law. He adds that, even if the two-thirds rule this time represents a change, it is not done "with respect to voting," a phrase from that law. It affects senators and not voters, and so doesn't require pre-clearance. And he closes his letter by asking the feds to pre-clear the use of the two-thirds rule if they disagree with his other arguments and think pre-clearance is needed.
The Rest of the Fight Card
The Democrats dropped their suit in Travis County, but the Republicans didn't drop their response and the judge in that case could rule within a couple of days. The state wants her to say the issues being hashed out should be hashed out in the Legislature and not in the courts, and they'd like to force the Democrats back to the floor of the Senate. Attorney General Greg Abbott asked the Texas Supreme Court a similar question, but they turned away the request without comment, leaving him the option of going to a lower court for help. Judge Darlene Byrne, a Democrat, set that one for a Monday hearing. The state is asking her to order the Democrats to come back, saying they don't have a constitutional right to leave and saying that the constitution and the Senate's rules allow senators who stay behind to demand the presence of their colleagues to get a quorum. It runs through a long and colorful history of legislative bodies elsewhere forcing people to vote — former U.S. Sen. Bob Packwood was once carried into the chamber feet first by police on a campaign finance bill — and say the Texas senators have the right to compel attendance.
Starting the School Year with a Bang
The Texas Federation of Teachers is suing the Teacher Retirement System of Texas for a rule that takes state benefits away from 21,000 school employees who — in the union's view — were supposed to get those benefits under a law passed earlier this year by the Legislature. Two years ago, the Legislature gave school employees — teachers, librarians, and others — a $1,000-a-year salary supplement that could be used for health insurance (or for anything else the employees wanted to use it for). This session, because of the tight budget, they cut the benefit. Full-time employees got their benefit cut to $500, part-time employees were cut to $250, and administrators were cut to nothing.
The lawsuit was filed because of a TRS decision to include anyone making $50,000 or more as an "administrator." The group points to an exchange between legislators when the bill passed, when Reps. Jim Pitts, R-Waxahachie, and Jim McReynolds, D-Lufkin, made it clear they wanted "teachers, librarians, nurses, speech pathologists, educational diagnosticians, etc." to get the $500. Aides to the attorney general, who'll defend TRS, said they hadn't studied the suit and couldn't comment on it.
If a governor makes an appointment to a board or commission during a legislative session, the appointee has to win Senate approval during that same session. It doesn't matter whether it's a regular or a special session. Nobody got appointed during the last 30 days, for instance, but if they had, they'd be out of business. The Senate never met to approve them. People appointed between regular legislative sessions are allowed to serve until the next regular session, where they have to be approved or lose their jobs. The Senate is allowed to handle appointments during special sessions, but doesn't have to. So someone named to a post in mid-June, when there were no legislators officially in town, can coast until the next regular session.
A couple of big appointments are on hold while the Legislature is in session: Gov. Rick Perry has to replace Secretary of State Gwyn Shea, who resigned that job to become a gubernatorial aide, and one of the state's three Public Utility Commissioners, Brett Perlman, is at the end of his term. He can serve until a replacement is named, but his job has a September 1 expiration date. If Perry names replacements between sessions, the appointees will be able to serve without a Senate stamp of approval until at least the end of the next regular session, in 2005.
Republican pollster Mike Baselice says 61 percent of Texas voters strongly disapprove of the Senate Democrats' flight to New Mexico, and another 7 percent somewhat disapprove. By his reckoning, only 19 percent strongly approve and only 8 percent somewhat approve.
He asked them a provocative question, noting the holdout was "blocking the approval of $800 million in revenues for education and health care," and not mentioning that the Democrats left to kill a congressional redistricting effort. The final score, according to Baselice &Associates: 68 percent against and 27 percent in favor.
The Democrats kicked back with their own provocative question, with polling firm Bennett, Petts & Blumenthal asking whether "Texas would be better off if the governor stopped the redistricting special sessions and addressed other issues such as public school finance...?" They came up with 61 percent against more special sessions on maps and 29 percent who said the governor should keep calling lawmakers back until the lines are redone. Those pollsters also say 56 percent of Texans think Perry should drop redistricting, and 31 percent said he should keep it up until the Republicans win.
DEPARTMENT OF CORRECTIONS: The governor's aides take issue with last week's line that he "announced" he'd be killing a grant to the American G.I. Forum, saying the group began its protest of that cut before the decision was made. In the end, Perry approved a $300,000 grant for that group, the same as it got last year. Sorry, sorry, sorry.
National Democratic groups are putting Texas in a bucket with California and Florida and the Clinton impeachment to paint Republicans as a party that wants to do elsewhere what it can't do in regular elections. That's the pitch in their newest fundraising materials, and the featured bogeymen are U.S. House Majority Leader Tom DeLay, R-Sugar Land, and Karl Rove, President George W. Bush's political savant. Emails from the Democrats feature a letter from state Sen. Rodney Ellis, D-Houston.
"If we return to our homes, families, friends, and constituents, the governor of Texas will have us arrested," he wrote. The letter compares the situation to a "banana republic" and said the Democrats were "effectively exiled from the state" because of their opposition to GOP-led redistricting efforts. It's going out under the MoveOn.org letterhead, and asks, among other things, for money to help pay the Texas Democrat's hotel bills and other expenses. The group says money will help the Democrats "prepare themselves for a state of indefinite duration in Albuquerque."
• Democrats complained loudly when an aide to Lt. Gov. David Dewhurst invoked the name of civil rights heroine Rosa Parks — suggesting this set of Democrats doesn't measure up. But Sen. Leticia Van de Putte, D-San Antonio, echoed that line in remarks to the Dallas Morning News, saying Dewhurst "is telling our constituents to move to the back of the bus. It is shameful and illegal."
• Dale Henry, a professional engineer who lives on a ranch in Mills County (in central Texas), says he'll run for Texas Railroad Commissioner in next year's Republican primary, challenging Victor Carrillo. Carrillo, the former Taylor County Judge, was appointed to the post by Gov. Rick Perry, and wants to win a full term in his own right. On his website — www.texasdalehenry.com — he says he wants to work for a "safer and cleaner environment," and "will focus on Field Safety for petroleum industry employees and the Texas public." He's from Mills County, but Michael Lillis of Midland paid for his mailers. The campaign hasn't yet filed campaign finance reports detailing contributions and expenditures.
• Democratic presidential candidate Howard Dean ran television ads in Austin when George W. Bush returned to Texas, and he's planning another visit to the state, hitting Austin and San Antonio next week on what he calls a "sleepless summer tour."
Political People and Their Moves
Doctor-turned-lawmaker-turned- lobbyist-turned-bureaucrat-turned-higher education poobah Mike McKinney is leaving the University of Texas System for the number two job at the University of Texas Health Science Center in Houston. McKinney, a former chief of staff to Gov. Rick Perry (and one of Perry's colleagues years ago in the Texas House) will be vice president and chief operating officer at the center; since December, he's been the UT System's vice chancellor for health affairs... Texas A&M University officials named James Anderson, who has been at North Carolina State University, as its first vice president of institutional diversity, with designs on bringing more Hispanics, Blacks and Asians into the student body there. A&M's student population is 86 percent Anglo; the state's population is 52 percent Anglo... Judicial spankings don't usually reach so far up the ladder, but the State Commission on Judicial Conduct issued a "public warning" to Court of Criminal Appeals Judge Paul Womack, who didn't file campaign reports during his 2002 race for office. He'd already been fined $20,500 by the Texas Ethics Commission for not filing the reports, an amount he paid after the TEC turned it over to the attorney general for collection... Former San Antonio state Reps. Art Reyna, a Democrat, and Bill Siebert, a Republican, are starting a lobbying outfit with veteran lobster Homero Lucero, a former Senate aide who's been lobbying for the last few sessions. They're keeping their separate clients, but will team up on business they generate together... The panel trying to figure out what all went wrong in the northeast's electrical blackout will include a Texan: Sam Jones, chief operating officer of ERCOT (the Electric Reliability Council of Texas), will be on the five member steering committee overseeing the investigation. ERCOT manages the electric transmission system that covers most of Texas.
Quotes of the Week
Sen. Bill Ratliff, R-Mount Pleasant, bemoaning the political mess in the Senate: "The real tragedy is that it was all predictable and avoidable... if I thought it was all going to blow over when it's over, I wouldn't be nearly as distraught about what's going on. I don't think it's going to blow over. I think it may be a generation before the scars from this are healed, and that's what bothers me about it."
Sen. Florence Shapiro, R-Plano, who is chairing a special committee on public school finance, quoted by the Austin American-Statesman: "I'm very fearful that what has happened to this body over this redistricting issue will spill over into school finance decisions."
Rep. Arlene Wohlgemuth, R-Burleson, quoted in the Fort Worth Star-Telegram: "If a walkout to break a quorum is successful, it will be rule by tyranny. It will be rule by blackmail. But we have to have rule by majority. It's more than redistricting now."
House Speaker Tom Craddick, quoted in the Midland Reporter-Telegram on the walkouts, which he fears could spread in the future to other issues, possibly prompting bipartisan groups to vote with their feet: "Next week it could be appropriations or school finance or something like that. There is this question that, okay, it's redistricting today. What if it's school finance next time?"
Former Lt. Gov. Bill Hobby, on the current Senate, in the Austin American-Statesman: "Civility is gone. It's very sad. It's moving more toward the congressional model where everything is partisan. When you start trying to impose penalties you've crossed some kind of a line."
Jim Ellis, a political advisor to U.S. House Majority Leader Tom DeLay, R-Sugar Land, in the Dallas Morning News: "It comes down to who's in charge."
Sen. Leticia Van de Putte, D-San Antonio, adding an adjective to her description of opponents after sanctions against absent senators were unveiled: "It is unconscionable that these white Republicans would attempt to hurt our constituents, even while we are making our stand to defend Texans."
Sen. John Whitmire, D-Houston, quoted in the Austin American-Statesman: "I can dance around it all I want to, but it is a color issue. I don't think they understand the way our communities think. They are reaching down and hitting nerves. Someone in the camp back in Austin has to stop and ask, 'Why do they feel as strongly as they do?'"
U.S. Rep. Henry Bonilla, R-San Antonio, at a press conference with Lt. Gov. David Dewhurst: "Playing the race card is a disservice to minorities and, quite frankly, has fallen flat. Racially divisive debates are not welcome in this state by any ethnic groups. This might work at the national level. It does not work in Texas."
Sen. Judith Zaffirini, D-Laredo, quoted by the San Antonio Express-News: "It is very clear. All of the Anglos who are representing Anglo districts are in Austin taking unprecedented illegal, immoral actions against all of us who are either minorities or representing minorities." Sen. Todd Staples, R-Palestine, quoted in the same article: "It is not about race. It is about party. And party has no color."
Pete Van de Putte, on Sen. Leticia Van de Putte, D-San Antonio, quoted by the Austin American-Statesman: "I've been married to her for 25 years, and I've never won an argument. I don't know what on earth Rick Perry thinks he's got going for him."
A reader's comment in the Albuquerque Journal, relayed by the San Antonio Express-News: "If our resources are being spent on state police to protect the Texas Democrats who are hiding in Albuquerque, who is left to protect me from drunk drivers, sexual predators and uncover the truth about Billy the Kid?
Ratliff, telling reporters he has not considered changing parties, even though he is often at odds with the GOP: "Philosophically, and let me correct you on the statement I made one time, I am a Republican for the same reason I am a Methodist — actually I'm now an Episcopalian, which might tell you something — that is, that I agreed with them at least 51 percent of the time."
Texas Weekly: Volume 20, Issue 11, 25 August 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.