The third special session this year — in fact, the third special session in more than a decade — starts at midmonth, and nobody has a clear idea what will happen. The Democrats are back in Texas, but say they have new tricks in their bag. The Republicans have the legislative quorum they seek, but have no agreement on a congressional redistricting plan. And the courts aren't done with the wreckage of what was, just a year ago, still a bipartisan government.
Start with the Democrats. Sen. John Whitmire, D-Houston, broke the deadlock last week by deserting his fellow Democrats in New Mexico, returning to Texas, and telling everyone listening that he will be on hand when the Senate returns. He's against redistricting still, and says it's a bad idea to keep coming back and fighting about it, but says the issue will be settled, eventually, in the courts. And he says, in effect, that the New Mexico Democrats weren't getting anywhere and were making Republicans mad enough to make punishments institutional: Particularly, to kill the two-thirds rule that requires a supermajority of senators to make legislation move. That empowers the one-third of the Senate that might be opposed to that legislation, and that power of the minority is the only real power the Democrats in the Legislature have right now. Whitmire thought it was in trouble.
The ten remaining Democrats came home a week later, lighting in Laredo the day before a three-judge federal panel took up their lawsuit challenging GOP efforts to redraw congressional maps. They said, variously, that they plan to be in Austin when the session gets rolling again. They won't be on the Senate floor at the outset, because they want to leave the dirty business of giving the Republicans a quorum to Whitmire alone. Once a quorum is established with what Sen. Gonzalo Barrientos, D-Austin, calls "Whitmire and his Republican colleagues," the other ten senators will show up.
Another variation is possible: Sen. Leticia Van de Putte, D-San Antonio, told some reporters that the Democrats would return when the Republicans present a redistricting map. All of those Democrats say they'll continue to fight redistricting, as do their fellows in the House, but remain unspecific about what they might do to mess things up this time around.
The Republicans, as we detailed last week, still don't have an accord with the Republicans. West Texas, and the fights over representation in an area of the state that is losing the population wars to the suburbs and the cities, have House Speaker Tom Craddick of Midland and Sen. Robert Duncan of Lubbock deadlocked. One observer says the two get farther apart every time they meet.
Briefly: Midland wants someone from Midland in Congress, and in particular, wants a representative from the oil patch. Lubbock wants someone from the agriculture economy, and preferably someone from Lubbock. They've got both, in a way, with Randy Neugebauer, R-Lubbock, and Charlie Stenholm, D-Abilene, in Congress. Stenholm is popular with some Republicans, in part, because of his position as the ranking Democrat on the House Agriculture Committee. Add this: Some Republicans think the maps drawn for Midland would stick Lubbock with Stenholm alone, losing a Republican to the delegation, a seat at the table for Lubbock, and giving Abilene a superior position.
That's not all. The map passed by the House twice so far — and on the front burner for the third session — is D.O.A. on the eastern end of the Pink Building. Several senators — Bill Ratliff, R-Mt. Pleasant, Todd Staples, R-Palestine, Kip Averitt, R-Waco, Troy Fraser, R-Horseshoe Bay, and Ken Armbrister, D-Victoria— have said the House map does violence to their parts of the state. Count those votes: Five, plus the 11 Democrats who went to New Mexico, is 16. That's a Senate majority.
Immovable Object v. Irresistible Force
The Duncan-Craddick staring contest is important for more than the obvious reasons. Both have been very public about their positions, making it nearly impossible to work out a solution that doesn't require one of them to back down and lose face back home. And the standoff eventually becomes a match between Craddick and his Senate counterpart, Lt. Gov. David Dewhurst.
Duncan is the chairman of the Senate Jurisprudence Committee, which has been handling redistricting so far. That panel has four Republicans and three Democrats on it. Barring something bizarre, Sens. Mario Gallegos, Eddie Lucio, and Royce West, will all vote against any change in the state's current congressional districts. That 's why they left Texas for 45 days.
Staples, who heads the Senate Republican Caucus and has been drawing maps, has said he'll vote with Duncan. Averitt is watching to make sure McLennan County doesn't get sliced up, as it was in the House map, and will probably stick with Duncan, too. The other vote is Chris Harris, R-Arlington, who operates well beyond our powers of prediction. Harris was originally carrying the Senate map, but came to a committee meeting in the first special session and announced that he was out of the map-making business and leaving it to someone else.
If Duncan won't sign off on a map, it's stuck in his committee. If his panel votes out a map that he likes, and the full Senate — minus the Democrats, probably — does the same, it's almost certain it will be unacceptable to the House. A conference committee would settle any differences, if the Senate decides it wants to negotiate after it finally votes on a map.
That's the point where Dewhurst gets hauled publicly into this chess game. Barring a deal between Duncan and Craddick, he'll have to pick a side. If he decides to side with Craddick, or to put it differently, to side against Duncan, he can send the maps to a different committee or engineer Senate approval of a map drawn by House-Senate conferees.
Wiring Around the West Texans
Some have suggested sending the map to a Committee of the Whole, so that committee approval and Senate approval would essentially be the same thing. That would make it possible for the Senate to work around Duncan and to take away his ability to face down the speaker. The advantage is that the Legislature might actually pass a GOP-friendly redistricting map. The risk is that moderate Republicans in the Senate could form a coalition with the Democrats and block anything being pushed by the Republican conservatives inside and outside the Capitol.
Another play involves final passage of the legislation. The Senate and the House can pass completely different maps — that happens all the time. Each sends five members to a conference committee, and then each house votes on what the conferees agreed to. The House plans to move quickly on a map, leaving it to the Senate to try to pass something of its own.
The Senate could pass a map — if it can work out something that's okay with 16 members, as Staples has been trying to do — and then could simply adjourn. The House would be able to accept the Senate map or not, but the session would be over. That scenario probably has a little bit too much Hollywood in it to be practical, but it's being talked about in the halls of the Senate.
If Dewhurst wants a plan the House and Senate can agree on — with or without Duncan — he could send a map off to conference and try to win the votes for whatever comes back. That runs the risk of re-empowering those pesky Democrats. Special sessions last 30 days, and it will probably take some time to run this thing through the process of committee and floor votes. As the time left in the session shrinks, it becomes progressively easier to block a bill with a filibuster or a sudden quorum-busting vacation. And if the third session crashes because the Republicans couldn't agree on a plan, the Democrats won't get the blame all to themselves.
The three federal judges brought together in Laredo to hear the Democrats' laments hadn't ruled when we went to press, but they had a couple of clear paths before them. The Democrats asked the judges to stop redistricting, temporarily, because the Republicans hadn't gone to the U.S. Department of Justice or to the courts seeking permission to change legislative rules that make it easier for the Republicans to redo congressional lines in Texas.
Their logic is that federal voting laws bar unapproved procedural changes that make it harder for minorities to have a full voice in elections, and that changing the rules on the Senate floor could allow maps that are unfavorable to those voters in Texas, and so the rules can't be changed without federal permission. Put another way: Lt. Gov. David Dewhurst's decision to drop the two-thirds rule, so that a simple majority can prevail on redistricting, will result in political maps detrimental to racial minorities.
One argument against that: It hasn't happened yet, and so the Voting Rights Act hasn't been violated, or even triggered. The state argues that the internal workings of the Legislature aren't covered, and that the resulting map will have to win federal approval anyhow, so the Democrats should sit down and wait for the next round in court. Nobody wants to predict what federal judges might do, but lawyers on both sides seem to think the Republicans had a better time in court than the Democrats had.
A wild card: The fines and penalties and sanctions imposed by the senators who stayed upon the senators who left apparently didn't sit well with the judges. Those could end up in one of three spots. The Senate could just toss them aside, dropping the matter and any reason to take it to court. The penalties could stay in place for federal courts to decide, or they could stay in place for state courts to decide. We can't find a single Democrat willing to pay or to talk about paying, and there are plenty of senators on the GOP side who don't think the penalties are such a good idea anymore. When the Senate voted on those fines, it didn't have a quorum.
The resolution, by Sen. Jane Nelson, R-Flower Mound, said that the members who voted intended, when a quorum was present, to make the sanctions a permanent part of the rules. If that's going to happen, it would happen Monday, and that would apparently kick off the next round of lawsuits.
Finally, if the Texas Legislature manages to pass a new congressional redistricting map, there will be a court battle over it. Texas is covered by the federal Voting Rights Act, so the Justice Department or the courts has to approve anything before it can be used. Advocates of the current lines and advocates of new lines promise to sue if that permission doesn't go their way. Even if the three judges in this round throw out the case, Texas redistricting will end up back in court later this year.
Which was the Oversight?
There's a strange little turn in state law that makes one of the appointments made by the Speaker of the House subject to Senate approval. The rest of them, according to lawyers for Speaker Tom Craddick, don't get the Senate's eye.
The case in question: Former Speaker Pete Laney appointed Bill Barton to the board of the Employee Retirement System of Texas about a year ago. The Senate didn't take that up, and by Craddick's reading of the law, that means Barton can't be on the board anymore. He appointed Bill Ceverha to the ERS board, and his lawyers say Ceverha will have to be approved by the Senate when it meets in 2005 because of something in the statute on that particular appointment.
All other speaker appointments skip the Senate, they say, a point of view bolstered by a 20-year-old attorney general opinion.
Footnote: Barton was actually reappointed, and wasn't confirmed by the Senate the first time, either. Nobody busted him then, leaving this question for the lawyers: If Craddick's reading is right, have Barton's past votes been legal? On the other hand, if the old attorney general opinion is right, is there an open seat for Ceverha to take?
A top aide to House Speaker Tom Craddick tried to get an outspoken state representative kicked off the board of a national group of state legislators.
Rep. Garnet Coleman, D-Houston, has been one of Craddick's loudest and most persistent critics, and he was one of a small handful of Texas state legislators who were willing to talk trash about George W. Bush when the president was only a governor who wanted to be president. Coleman is a pain in the GOP's backside, and seems to like the job.
In July, the National Council of State Legislatures had its annual meeting in San Francisco. You might remember the speculation that lawmakers wanted to end the first special session by a certain date so they could make that trip. As it turned out, Craddick made it to NCSL and Coleman, a board member for two years, didn't. But the group reelected Coleman to a one-year term (and if that isn't enough, the group elected another Texan, Leticia Van de Putte of San Antonio, to that 40-member board. She's the leader of the Senate Democrats, and recently lived in New Mexico for six weeks).
According to NCSL's executive director, Bill Pound, Nancy Fisher, a top aide to Craddick, called to say, "the speaker would prefer he [Coleman] wasn't on our board." Coleman got a call from Oklahoma state Sen. Angela Zoe Monson, who told him about that request. He also thought the speaker attached a threat of not paying Texas' dues to the group, but Pound says he and Fisher didn't talk about money in any way, shape or form.
Coleman says he will not resign. Pound describes his predicament as a political problem, and said this isn't a common occurrence in that bipartisan group. A spokesman for Craddick chose not to speak about it. Coleman, in a letter sent to Craddick (and to reporters) asked the speaker for a meeting and blasted him for what he called partisan retribution for Coleman's opposition to redistricting.
Flotsam & Jetsam
Underneath all that redistricting, Gov. Rick Perry's agenda for the special session includes most of what was left unsettled in two earlier sessions: cleanups of some election dates; a huge overhaul of state government that includes removal of performance reviews from Comptroller Carole Keeton Strayhorn, a political rival of Perry's; and some legislative fixes. Also, to give Republicans breathing room if Democrats delay redistricting, he'll let the Legislature look at proposals to delay next year's March primaries to a date later in the year. We've seen no bills yet, but one proposal would move the primaries to May, another to June, and still another to August.
• In closing: The other James Baker — the former U.S. Secretary of State, who's from Houston — loaned his name, a picture, and a letter to the folks trying to pass Prop. 12, which would limit liability awards in lawsuits. Former Texas Supreme Court Justice James Baker of Dallas is against that amendment. The letter from the Houston fellow — published in a mailer — says friends have asked if he's against the amendment. He's for it. The fellow in Dallas remains against it.
An unexpected late bump in absentee voting flushed out some optimists at the Texas Secretary of State's office. SOS Geoff Connor is predicting overall turnout of 9 percent of the state's voters. At least one respected pollster we know thinks it'll be closer to 7 percent.
• DEPARTMENT OF CORRECTIONS: Legislators vest in their pensions after eight years of service (not 12, as we wrote last week), but the bennies improve markedly after 12 years of service. After eight years in the Legislature, a Texan can retire as early as age 60 and get full retirement. A former lawmaker with 12 years in the big leather chair can retire at age 50. Their retirement pay is based on the salaries of state district judges (set by the Legislature) and includes a multiplier, the number of years served and that judicial salary. That's the general patch, and now to the specific one: Rep. Ray Allen, R-Grand Prairie, says that contrary to last week's item in this very newsletter, his decision to run for reelection has nothing to do with his retirement benefits or with the heart attack he suffered a few months back. Apparently, he just likes the job.
Political People and Their Moves
Gov. Rick Perry is making appointments at a pretty good clip, taking advantage of the time when lawmakers are out of town to fill empty spots on state boards and commissions. Appointments made when lawmakers are meeting must be approved by the Senate at once; those made between regular sessions don't have to be confirmed until the next regular session. For this bunch — those who don't have to run for office next year, anyhow — that session starts in January 2005.
First, the exemptions: Perry named William Bosworth Jr. of Cleburne to wear the black robes in the 413th Judicial District, a new court created during the regular legislative session this year. He's a partner at Rugeley and Bosworth, and will have to get on the ballot next year if he wants that job after the 2004 elections...
That's also true for Elizabeth Lang-Miers, a partner at Locke Liddell & Sapp's Dallas office, tapped by the governor for a spot on the 5th Court of Appeals. She'll be replacing Ed Kinkeade, who resigned. All of the judges on that court are Republicans; Lang-Miers will have to win a GOP primary and a general election next year to get a full term on the court.
Less than a week after U.S. District Judge Jerry Buchmeyer announced his retirement date, U.S. Sens. Kay Bailey Hutchison and John Cornyn named U.S. Attorney Jane Boyle of Dallas as their choice to take his place. Buchmeyer will take senior status on his upcoming 70th birthday. Boyle has been the top federal prosecutor in that district for a year-and-a-half. She was appointed by George W. Bush, and would need his nod again to get the judicial spot. The process, briefly: Get the recommendations of your state's senators, get the nomination from Bush, win confirmation from the Senate Judiciary Committee and then the full Senate, then get the appointment from the president. Boyle was a U.S. Magistrate Judge in Dallas for 12 years before getting her current job.
The governor named John Graham, a retired Air Force officer who's now a financial advisor in Fredericksburg, to the board of the Teacher Retirement System of Texas. John Mark Henry, the superintendent of the Sulphur Springs ISD, is also getting a spot on that board...
The new Texas Residential Construction Commission — a new agency created by lawmakers to register and set standards for homebuilders — has seven new appointees, several of them from the industry being overseen. They include Patrick Cordero, a title company executive from Midland who'll chair the new panel; Lubbock homebuilder Art Cuevas; attorney J. Paulo Flores of Dallas, a specialist in construction law; John Krugh of Houston, an executive with Perry Homes; College Station homebuilder Glenda Mariott; Kerrville homebuilder Scott Porter; and Mickey Redwine of Ben Wheeler (that's in Van Zandt County in northeast Texas), who owns a telecommunications concern...
The State Board of Medical Examiners, which is supposed to regulate doctors in Texas, had six empty seats, and four of those will go to people in the industry that's being watched. Dr. Lee Anderson of Fort Worth, already chairman of that board, was reappointed by Gov. Perry. New appointees for the other five spots include Melinda Fredricks, a PR consultant from Conroe; business consultant Timothy Turner of Bellaire; and three medical doctors: Amanullah Khan of Dallas, Keith Miller of Center (in East Texas), and Larry Price of Belton...
Tiffiny Britton is leaving Sen. Steve Ogden, R-Bryan, to become a full-time political fundraiser. She has most recently worked for the senator on the committee he chairs, Infrastructure Development and Security...
Recovering from a shoulder broken while ice-skating: Sen. Judith Zaffirini, D-Laredo. She was training to skate out and drop a puck at a hockey game...
Deaths: Walter Richter, former Texas senator, one-time editor and publisher of the Stockdale Star, head of the Travis County Democratic Party, and a zillion other things, of complications stemming from Alzheimer's Disease. He was 86... Former Texas Health and Human Services czar Dick Ladd, of cancer. Ladd, a one-time truck driver brought in from Oregon by then-Gov. Ann Richards to oversee a reorganization of several agencies into one, then taught at the LBJ School of Public Affairs and consulted until returning to his home state in 1998. He was 64... former state district judge and U.S. attorney Mike Bradford, who was involved in high-profile cases of surviving Branch Davidians and the killers of James Byrd, of self-inflicted gunshot wounds. He was 50.
Quotes of the Week, Redistricting Division
Sen. Mario Gallegos, D-Houston, quoted in the Houston Chronicle: "As we leave today we just pitch camp and go to another battlefield. Our goal was to give people time. They asked us for time, we gave them time. We have basically held up the redistricting process."
Sen. John Whitmire, on his decision to leave New Mexico and return to Texas: "I'm a great Democrat, but I can count."
Whitmire, on spending a weekend in Houston, away from his fellow senators, before making the decision to cut out: "You cannot imagine the psychology of being in a hotel with 10 other people for 30 days. You lose your ability to think as an individual and make clear judgment calls."
Rep. Garnet Coleman, D-Houston, quoted by the Austin Chronicle on Whitmire's return: "He made a unilateral decision, and now he's attempting to go out and poison the well. I don't understand... and I hope I'm proven to be stupid. But I reserve the right to be completely disillusioned with him."
Sen. Eliot Shapleigh, D-El Paso, quoted in the Dallas Morning News: "We're here to tell the story of recount, recall, and re-redistricting, the new three-R's of Republican extremism."
Rep. Trey Martinez Fischer, quoted in the Washington Post: "That's the four R's: The Recount in Florida, the Recall in California, Re-redistricting in Colorado, Re-redistricting in Texas."
Thomas Mann, an elections analyst with the Brookings Institution, quoted by the Associated Press on mid-decade congressional redistricting: "One bite of the redistricting apple has been the norm for a century, and only if the courts demand revisions do you go back to the drawing board. If Colorado and Texas are allowed to stand, I don't see what's to stop the process from continuing every election throughout a decade. The idea of relatively permanent, stable districts could vanish."
University of Houston political scientist and pollster Richard Murray, quoted in the San Francisco Chronicle on Republican recalls and redistricting: "They are trying to take a closely divided country and build the base for a national political majority, not so much by winning over public opinion but by maximizing the rules of the process to shore up political power."
Quotes of the Week, Non-Redistricting Division
U.S. Sen. Kay Bailey Hutchison, telling the Fort Worth Star-Telegram that she is not currently considering a run for governor in 2006, and then giving it a tweak that'll keep the rumor alive: "There will be a time when I'll speak out. There will be a time to talk about what could be done for Texas. And at that time, I will be very forthcoming."
Gov. Rick Perry, quoted by the Dallas Morning News on the Senate's two-thirds rule, which requires a super-majority of senators to get legislation moving: "The idea that the two-thirds tradition is somehow what makes people get along is nonsense. What makes people get along is whether they want to get along." Perry, later, in the same article: "If the lieutenant governor and the Senate want to be agents of change in this state, the 21-vote tradition is an impediment to that."
Corpus Christi attorney and former state judge Jorge Rangel, a Bill Clinton judicial appointee who withdrew his nomination after Republican senators blocked it, quoted in the San Antonio Express-News after the same thing happened to Miguel Estrada, a Republican nominee blocked by Democrats: "It did not surprise me that Estrada withdrew. He is also in private practice and you cannot live in limbo for that amount of time — you can't put yourself on the shelf like that. What did stun me was the ease with which those Republican Senators expressed outrage at his being blocked, at the obstructionism. I couldn't believe they suggested that Democrats were anti-Hispanic for filibustering his nomination. It seems like collective amnesia after what they did to Enrique Moreno and myself."
Ide Trotter, a chemical engineer and spokesman for Texans for Better Science Education, a group critical of evolution theories in textbooks, quoted in the Austin American-Statesman: "What is the educational problem today? It is to excite the interest of the student. This is a Jerry Springer world. Controversy is exciting."
Texas Weekly: Volume 20, Issue 14, 15 September 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.