Friday night's second and final debate between the Republican candidates for governor might as well be called "The Debra Medina Show." While the two big-name contenders — Kay Bailey Hutchison and Rick Perry — are trying not to make any career-threatening gaffes, she'll be trying to add momentum to an outsider run that has made her the most interesting candidate in the race.
Sponsored by Dallas-based Belo Corp. and broadcast (or at least offered to) TV stations across the state, the debate will feature the trio questioned by reporters in a television studio without an audience. The first debate, two weeks ago, was held in a packed auditorium in Denton.
And now the two leading Democrats, hair care entrepreneur Farouk Shami and former Houston Mayor Bill White, have agreed to debate. That's a KERA-sponsored event in Fort Worth on Monday, February 8 (other sponsors include the Fort Worth Star-Telegram, KTVT-TV, KTXA-TV, KUVN Univision 23, Texas Association of Broadcasters, Texas State Networks, and the Freedom of Information Foundation of Texas), and it's the only debate they've got slated.
Medina can't afford to waste her last certain moment on center stage. She doesn't have millions of dollars to spend on television advertising, so this is a rare chance for her to talk to the whole state, or at least the part of it that watches Republican political debates on Friday nights. What does she want? "The same thing that happened the first time around," she says. She came out of the first debate with a bloom that helped her shoestring campaign raise more than $100,000 in a week. A former Wharton County GOP chair, Ron Paul supporter, and failed candidate for state GOP chair, Medina was the big winner in the first debate. Put on stage with two fellow Republicans who've each been in statewide office since 1991, she held her own. She wasn't goofy — a way of saying that expectations were low and that she easily exceeded them. In fact, she put Perry, in particular, on the ropes with a couple of her responses. Voters looking for an outsider had their standard-bearer.
The risk, of course, is that she loses steam after this debate is over and voters see a barrage of ads from Perry and Hutchison and nothing from her. Early voting starts on February, and the election is on March 2. In real terms, that's soon. In political terms, that's plenty of time for a minor candidate to disappear.
For Perry, the best offense on Friday night is a great defense. Don't make noteworthy mistakes: No news is good news. If there's nothing really interesting in the papers the next day, it's all good for the Guv. And drop the attitude; after the first debate, some viewers thought Perry was abrasive and fidgety. It didn't rise to the level of the sighs that undermined presidential candidate Al Gore in his first debate against George W. Bush, but it went on Perry's stage notes inside and outside the campaign. With no crowd in the room this time, he'll play to the cameras instead of the cheap seats. The idea is to be Mr. Positive and to try to deflect attacks on him as attacks on the state; the idea is that anyone criticizing him is talking trash about Texas.
Hutchison's strategy lies somewhere in between. Candidates who think they're in solid positions before debates follow the same rule doctors follow: First, do no harm. She's got to protect the standing she's got — more debates are decided by screw-ups than terrific performances — while also taking Perry down a few notches. One option is to smile and nod as Medina rips Perry, letting the third candidate damage the frontrunner. But Medina also sent a few arrows in Hutchison's direction in the first debate. And Hutchison needs to land some blows, too.
Hutchison's campaign insists in conversation with supporters that the race between her and Perry is neck and neck. And that's how she's been acting: A candidate as far behind in the polls as Perry claims she is (somewhere in the double digits) would probably have opened the arsenal by now. Instead, she was assertive and confident in the first debate and landed a few jabs on the incumbent (though Medina was more direct, and more effective, as when she criticized Perry's boasting about jobs and the growing state budget). Hutchison, like Perry, wants to avoid mistakes.
So, in sum: Medina needs to make it to the highlight reel after the debate to keep people talking and to fuel her grassroots campaign; Perry wants an empty highlights reel; and Hutchison wants something that hurts Perry, either directly or by helping Medina. Her best outcome is to win outright in March; second best is for Medina to force a runoff between Hutchison and the incumbent governor. And Medina's best chance might come in this debate.
The Playing Field
Early voting in the party primaries starts in less than three weeks, the election in less than five. While there are nearly 200 legislative races on the ballot, only a few are real contests. Here's a rundown of the ones worth watching.
We're not taking a global view here — these are seats that are being fought over in the March 2 primary. People who are in trouble in November have time to prepare; the folks in trouble in the primary are in trouble right now. It's not a comprehensive list: Just because there are two people on the ballot doesn't mean there's a noteworthy battle brewing. And it's not a final list: It will change several times in the next few weeks, with new information, new candidate actions and reactions, and so on. We'll publish an updated list as primary day approaches.
The toughest race on everyone's list, including ours:
HD-11: Rep. Chuck Hopson vs. Michael Banks vs. Allan Cain. Hopson, a Jacksonville legislator, switched parties — to the Republicans from the Democrats — in the first week of November. The Republican powers-that-be in Austin were generous in their support and praise of a move that, after all, firms up their tenuous hold on a nearly evenly split Texas House. But not everyone is on board. Hopson is running against two other Republicans: Banks, in particular, is well known in Jacksonville (there are four counties in the district: Cherokee, where Jacksonville is; Houston; Rusk; and Panola). Hopson's in a primary he's never run in before; all the Democrats who've been helping him with phone banks and block-walking are on the other team now. He's got a conservative voting record, but he's also voted with the Democrats on lots of measures. And voters aren't fawning over incumbents at the moment. Democrats will have a hard time winning the district without Hopson on their side of the ballot, but some of them would love to see him lose, just for switching. And some Republicans — within and outside the district — would rather have a Republican legislator who's been a Republican all along. Hopson carried the district by around 120 votes two years ago and is used to close races. Now he's got a new political team and everybody's attention.
The weirdest race:
SD-22: Sen. Kip Averitt vs. Darren Yancy. Averitt filed for reelection and has a primary opponent, and then announced — after it was too late for him to get off the ballot or for someone else to get on — that he doesn't want another term in the Senate. He's a moderate. Yancy is more conservative (watch for yourself on YouTube). Averitt's from Waco and Yancy is from Burleson — a distinction that's more important than party affiliation in some parts of SD-22. Waco would like to be the geographic center in the 10-county district, but if Yancy wins, it'll move to Johnson County. No Democrat filed in the race and if Yancy wins, he'll face only a Libertarian in November. If Averitt wins, the Republicans will get to pick a new candidate and, because election laws say so, the Democrats will, too. Averitt has talked to some supporters about resigning before the year is out — as opposed to serving out a term that ends next January. If he does that, there could be a special election on top of all this. However it falls (unless Averitt has an unexpected change of heart), there will be a new senator from Central Texas next year.
Not really a race, but...
Congress. Conventional wisdom is that nobody in the congressional delegation is in real trouble. Conventional wisdom almost always sides with the incumbents, though, and it's hard to calculate the electoral power of Tea Partiers and others angry at Washington and entrenched establishment-types in both parties. U.S. Rep. Chet Edwards, D-Waco, is perpetually at risk: his is the most Republican district in the country represented by a Democratic congressman. And Ciro Rodriguez, D-San Antonio, is in a seat where voters generally like Republicans more than Democrats in statewide elections. But those are general election worries. The discontent among conservatives produced 11 contested GOP primaries this year. Ralph Hall, R-Rockwall, drew five opponents, but he's been in contested primaries since switching parties a couple of election cycles ago and has survived with relative ease. Nobody in Congress (from Texas) is on the March watch list at this point.
Other incumbents at risk in their party primaries:
HD-83: Rep. Delwin Jones vs. Zach Brady vs. Charles Perry. Jones, one of the 11 renegade Republicans who toppled House Speaker Tom Craddick in 2009, faces tough challenges this time focused gently on his age (he'll be 86 in April) and on calls for change. Brady, in particular, is mounting a strong challenge.
HD-98: Rep. Vicki Truitt vs. Rich DeOtte vs. Diane Thorpe vs. Giovanni Capriglione. Whether you're worried about this has something to do with where you are. It's high on the Austin list, if the conversation involves consultants and lobbyists and political financiers. Truitt's folks are talking it down.
HD-7: Rep. Tommy Merritt vs. David Simpson. Merritt draws opposition every time, and has held them off, so far, every time. Simpson is the former mayor of Avinger.
SD-5: Sen. Steve Ogden vs. Ben Bius. The incumbent Bryan Republican faces businessman Bius, who has run unsuccessfully for other offices. Ogden brought this on himself, saying last September he wouldn't be back. Bius got into the race, as did Rep. Dan Gattis, R-Georgetown. Gattis talked to Ogden and got out of the race. Ogden got back in. Bius stayed. Ogden's got a race and the advantage.
HD-4: Rep. Betty Brown vs. Lance Gooden. She used to be his boss. He's running on "time for a change."
HD-100: Rep. Terri Hodge vs. Eric Johnson. Hodge's trial on public corruption charges starts just days after the primary, so Johnson's got something to talk about. He's also a Harvard-Princeton-Penn-trained attorney with his own practice. He's organized and raising lots of money. Other Dallas Democratic officeholders — at least at the state level — are sticking with Hodge, but Johnson is getting some support from locals. Advantage: the challenger.
HD-146: Rep. Al Edwards vs. Borris Miles. Edwards lost to Miles in 2006 and then won the seat back in 2008. The third time's just charming.
HD-43: Rep. Tara Rios Ybarra vs. Jose Manuel Lozano. The first race for reelection is the hardest. Rios Ybarra, a dentist from South Padre Island who defeated incumbent Juan Escobar in 2008, has a tough, well-financed opponent. She has a messy divorce case that's made headlines, and that might be behind her depending on whether her opponent wants to stir the pot. But she also has the backing of Texans for Lawsuit Reform and others, who helped her win last time.
Primaries where the winners will challenge targeted incumbents in the fall:
HD-47: David Sewell vs. Holly White Turner vs. Paul Workman. The winner will face Rep. Valinda Bolton, D-Austin, in a district where voters like statewide Republicans. Bolton held off a stiff challenge two years ago and the Republicans are hoping (as in other districts) that some of her strength came from a Democratic surge in 2008 that won't be there, they hope, in 2010.
HD-52: Stephen Casey vs. Alyssa Eacono vs. Larry Gonzales vs. John Gordon. The figuring is the same as in the Bolton race, with this difference: Rep. Diana Maldonado, D-Round Rock, is in her first defense of the seat and hasn't been battle-hardened by tough reelection contests. Gonzales and Gordon appear to be in front of the pack.
HD-78: Luis Rene Diaz vs. Robert Kleberg vs. Dee Margo. The winner will face Rep. Joe Moody, D-El Paso, in what was, for years, a Republican seat in the Texas Legislature (Jack Vowell held it, followed by Pat Haggerty). Margo lost to Moody last time. Kleberg and Diaz are new to this.
HD-101: Greg Noschese vs. Cindy Burkett vs. Thomas Latham. Start at the back of the alphabet: Latham, a former state representative, lost a primary challenge in 2008 to the guy who then lost to Robert Miklos, now the Democratic incumbent. Burkett owns Subway franchises and is making her first run. Noschese was a Mesquite city councilman. Miklos is running for reelection for the first time, and the Republicans want to see if he was a fluke, winning in a district that belonged to the GOP for years.
HD-105: Kim Limberg vs. Loretta Haldenwang. The winner will face Rep. Linda Harper-Brown, R-Irving, who had the narrowest margin of victory of anyone in the Legislature on the 2008 ballot (less than two dozen votes).
Open seats where the incumbents have opted out:
HD-20: Milton Rister vs. Charles Schwertner vs. Stephen Thomas vs. Patsy Williams. This is the race to replace Rep. Dan Gattis, R-Georgetown, who's not seeking reelection. Rister and Schwertner seem to have a jump, but Thomas was on the Cedar Park city council and has a political base. Expect a runoff.
HD-36: Sergio Muñoz Jr. vs. Sandra Rodriguez. Rep. Ismael "Kino" Flores, D-Palmview, holds the seat now; he defeated Sergio the elder (and is related, through his wife) in 2000, and then survived a strong challenge in 2008 from Rodriguez. Flores' political forces are with Muñoz.
HD-66: Mabrie Griffith Jackson vs. Wayne Richard vs. Van Taylor. A race to succeed Rep. Brian McCall, R-Plano, with no Democrat on the horizon. The winner here will likely take office (barring an unprecedented Libertarian surge). Jackson quit the Plano city council to make the race and is the establishment favorite. Taylor ran for Congress (against Chet Edwards) a couple of cycles ago and has the ability to self-finance.
HD-69: Joe Clement vs. Lanham Lyne. Lyne, the former mayor of Wichita Falls, is the favorite in the race to succeed Rep. David Farabee, D-Wichita Falls.
HD-84: Ysidro Gutierrez vs. Mark Griffin vs. John Frullo. Outside of Lubbock, Griffin is the best known of the candidates to succeed GOP Rep. Carl Isett, who's not seeking another term. He's a former Texas Tech regent who says he was asked to leave for supporting Kay Bailey Hutchison over Gov. Rick Perry, who appointed him.
HD-87: Victor Leal vs. Walter Price. Rep. David Swinford, R-Dumas, is leaving a district that's ripe for extinction when the new redistricting maps are drawn in 2011. It's Republican territory now, and the winner of this primary will face Democrat Abel Bosquez in November.
HD-122: Denise Barnhill vs. Lyle Larson. In the race to replace Rep. Frank Corte, R-San Antonio, Larson, the former county commissioner, has the deeper electoral history.
HD-127: Martin Basaldua vs. Susan Curling vs. Dan Huberty vs. Addie Wiseman. This race to replace Rep. Joe Crabb, R-Atascocita, is going to be expensive. And it's a hard race for some trade groups. For instance: Basaldua and Curling are both doctors. Wiseman is a former Houston city councilwoman. Huberty is an energy exec and president of the Humble school board. All four had respectably stout fundraising numbers at the end of the year, with Curling leading the pack in cash-on-hand. A distinct runoff possibility.
It's no secret that the seats occupied by U.S. Reps. Chet Edwards, D-Waco, and Ciro Rodriguez, D-San Antonio, are high on the GOP's Texas takeover list.
Now, Freedom Works, a conservative group closely aligned with the Tea Party movement, released its list of targeted U.S. Congress races, and Edwards and Rodriguez both made the list of "potential targets." These are races the PAC is "monitoring... but has yet to commit to backing a candidate for election or conversely, targeting one for defeat."
Freedom Works is founded and chaired by Texas' own Dick Armey, the former U.S. House Majority Leader. He's been very active in state politics lately, most recently spotted campaigning for U.S. Sen. Kay Bailey Hutchison.
If Freedom Works does decide to go after Edwards, presumably by backing whichever of the five Republican primary candidates comes out on top, they will have to put up some serious cash. The Edwards campaign announced that it began the year with over $1.3 million in the bank — more than it's ever had at the beginning of an election year.
The National Republican Congressional Committee has thrown their support behind challenger Bill Flores.
Along Came Some Spiders
Cyber mischief is afoot in the HD-146 Democratic primary.
An unknown entity operating at email@example.com has repeatedly hijacked Borris Miles' campaign letterhead to broadcast press releases upbraiding incumbent Al Edwards for ties to the GOP and claiming fake endorsements, campaign spokeswoman Jeri Brooks said. An email dated January 15 with the subject "It's Time to Get Back to Work" ended with a lengthy list of Miles' supporters, with the names of several judges, ministers, and state representatives, including House Democratic Majority Leader Jim Dunnam.
And there's more. A now-defunct blog ("Richards Bottom Line") written by a "Richard Bottoms," supposedly a City of Houston employee and former congressional chief of staff, published regular posts attacking Miles until late December. A cached entry from the site, which posts a YouTube video of Clarence Carter singing "I Got Caught Making Love," reads: "This song reminds me of Borris Miles... "
Brooks said the campaign investigated city records and found that no Richard Bottom existed, and that it had reported the email account to Google as abusive. Because of confusion caused by the emails, she said, it was waiting to release an official list of endorsements.
When asked about the emails, Miles accused the Edwards campaign of "playing really ugly games," noting that an anonymous caller had threatened to drop 50 pounds of manure in his yard and that one day 40 pizzas were delivered unsolicited to the campaign office.
Edwards, who received an endorsement from Houston's AFL-CIO Thursday, said in an interview that he didn't have the time to send bogus emails and that the Miles campaign was just trying to cover their own mistakes.
Notes from the Field
Rep. Tommy Merritt, R-Longview, and his challenger David Simpson each earned big endorsements this week from conservative heavyweights. Simpson gained the support of Young Republicans of Texas and the Empower Texans PAC. Merritt picked up endorsements from the Texas Association of Business and the Texas Association of Realtors.
The four-way competition for retiring Rep. Dan Gattis' seat appeared pretty quiet earlier this week, but it won't be on Friday. Candidate Milton Rister will watch Rep. Leo Berman, R-Tyler, rally supporters for him, and he's expecting "at least a couple hundred" to turn out. Berman has been a favorite among the hard-right, Tea Party crowd — he spoke at the recent "nullification" rally at the Texas Capitol — and will likely rev up support for Rister, the former head of the Texas Legislative Counsel. In addition, he picked up a Young Conservatives endorsement on Wednesday. Not a bad week.
The political action committee attached to the Texas Association of Business issued its endorsements in state races, and one in particular sticks out. BACPAC endorsed Zach Brady, who's challenging Rep. Delwin Jones, R-Lubbock. That's the only incumbent in a contested primary who's being opposed by the trade group's PAC. The Texas Association of Realtors reveled its list; that group's PAC sided with Jones.
Maybe they can start a gun club: Larry Gonzales, who said his nine sessions of legislative experience set him apart from the three other candidates, received an A rating from the Texas State Rifle Association and the National Rifle Association Political Victory Fund. He was also endorsed by the Young Conservatives of Texas, the Texas Apartment Association, and the Texas Association of Business. John Gordon, who also received an A rating from the Texas State Rifle Association, says his campaign led the others in signage. Alyssa Eacono also received an A rating from the Texas State Rifle Association. Stephen Casey picked up an endorsement from the Republican Liberty Caucus.
Denise Barnhill and Lyle Larson faced off in a debate sponsored by the Republican Liberty Caucus of Bexar County on Jan. 20. Larson has earned endorsements from energy PACs NuStar and ValPac, as well as from Valero Chairman Bill Greehey, developer H.B. Zachry, AT&T VP of operations Jim Callaway, Tetco CEO Tom Turner, Ernesto Ancira, the Texas Association of Realtors, Associated General Contractors, the Texas Association of Business, Speaker of the House Joe Straus, State Senator Jeff Wentworth, and San Antonio city councilmen Reed Williams and John Clamp. Barnhill, who said she was running because she wanted to change the state's top-ten percent rule after her daughter wasn't admitted to the University of Texas with a one-hundred percent high school average, has yet to receive any endorsements.
Holly White Turner, David Sewell, and Paul Workman participated in the Central Texas Republican Assembly on Jan. 19. Sewell said he planned to continue weekend door knocking until the primary, and had organized a few small private fundraising events. Turner has secured endorsements from former Perry chief-of-staff Mike Toomey, the Young Conservatives of Texas, and the Republican Liberty caucus.
Challenger Jose M. Lozano and incumbent Tara Rios Ybarra said they like what they see in countywide polls. Lozano said he is leading in three counties and breaking even in one. Rios Ybarra said she is leading Lozano in six. Somebody's got it wrong: The district only covers six counties. Houston builder Bob Perry and the Texans for Lawsuit Reform contributed $20,000 and $50,000, respectively, to Rios Ybarra during the filing period that began in July 2009 and ended Dec. 31. (TLR's donations were 'in-kind') Rios Ybarra said she planned to also include those numbers on her Web site. "The only reason I assume they support me is because of my pro small-business stance," she said of the groups, which often back conservatives. Lozano, according to a spokeswoman for TLR, got $38,000 from trial lawyers during the latest six months. Lastly, Rios Ybarra meanwhile picked up endorsements from the Texas Association of Business and the Texas Association of Realtors.
Michael Banks snagged the endorsement of Michael Quinn Sullivan's conservative Empower Texans PAC early in the week. Chuck Hopson saw that and raised it one Texas Association of Business endorsement. "I really understand why they call it runnin' for office," says Banks, who is working hard to meet the challenge of running against an establishment-backed incumbent. "An incumbent has a huge, huge advantage," he says. "They have all the money and it's hard to get rid of them." Incumbent though he is, this is the first time Hopson has run as a Republican. "People have not forgotten that he went to Oklahoma back in '03," says Banks. He's needling Hopson about a recent $2,900 fine from the Texas Ethics Commission. A local law comes into play this weekend: Jacksonville restricts campaign signs until 30 days before an election, and the wrapper comes off on Saturday, when signs on both sides of the contest are expected to sprout.
There's still time before things really get going in HD-87. Victor Leal will officially kick-off his campaign at a February 4 barbeque at the American Quarter Horse Hall of Fame & Museum. The event will be hosted by the Leal-backing departing state Rep. David Swinford, R-Dumas. Swinford also says Leal has secured an endorsement from the Texas Farm Bureau.
Incumbent Vicki Truitt, R-Southlake, has the endorsement of heavy hitters like The Texas Association of Business, the Texas Retired Teachers Association, and the National Rifle Association. "We're looking for the endorsements of voters here in the district, not lobbyists in Austin," says opponent Rich DeOtte. He and fellow candidate Giovanni Capriglione have both confirmed that they will attend a Tarrant County Conservative Candidate Fair this Saturday where a straw poll will be taken that might give some indications as to how the race will play out.
Mabrie Griffith Jackson, recently endorsed by the Texas Association of Business, will wait until after the Super Bowl to kick her campaign into high gear. Jackson is also the favorite of retiring state Rep. Brian McCall, R-Plano. Her opponent Van Taylor, who recently received the Empower Texans PAC endorsement, is already running television ads.
Department of Corrections: We misnamed Charles Schwertner of Georgetown in last week's edition. His first name is Charles and not whatever we said then. Sorry, sorry, sorry.
—Julian Aguilar, Reeve Hamilton, Abby Rapoport, Morgan Smith
File Not Found
To understand why it takes so long to get election ballots together in Texas, it helps to know that some people still don't use email, that political candidates fill out forms incorrectly, and that the mail is sometimes slow.
Prosaic enough, but the result is maddening, especially in an age of instant everything. The deadline for candidates to file for state office in Texas was on January 4. The political parties had ten days after that to pull together their lists and report their certified ballots to the Texas Secretary of State. In fact, the SOS finally got lists posted on its website on Monday, January 25. That's the first time — three weeks after the filing was over and candidates were already working, raising money, knocking on doors and speechifying — that Texans could get a definitive list of candidates, as presented by the political parties, from the state's chief election office. (Republicans are here, Democrats here.)
"We have some people who haven't joined the 21st Century and they have to wait for mail and so on," says Bill Holcomb of Crockett, head of the Texas Democratic County Chairs Association. He's the Houston County chairman and says he and the state party had their business wrapped up within less than a week after the filing deadline. Others were much slower.
The deadline is simple enough. But Texas has 254 counties and all but a handful have party officials. And if a candidate's political district doesn't cross any county lines, candidates file locally instead of at their state party office. As it turns out, that's a lot of candidates: two-thirds of the 150 Texas House are single-county districts, for instance.
"I've never seen a reason for it to be at a local level... it's easier for a central agency to collect and distribute the money [from filing fees]," Holcomb says.
Things go wrong. Candidates make mistakes on their forms, and can be disqualified for big ones. Their checks bounce sometimes, undoing their political plans. I's must be dotted and T's must be crossed. New people have to be trained. For instance: The Texas Democratic Party has chairs in 247 counties and 102 of those people weren't in office the last time elections were held. It's ripe for error. "You get a green chair in there trying to fill out a state rep's application and there's a mistake, then you've got egg on their face," Holcomb says.
Both parties have the same setup. The primaries are actually party elections, but the state runs the mechanical parts. State officials get the lists of candidates from the parties and proceed from there; the filing is handled by party officials and volunteers — not by state election workers.
"If I don't get it just right, then it's usually the candidate who's got the problem," says Lampasas County GOP Chairman B.R. "Skipper" Wallace, who's also the legislative chairman of the Texas Republican County Chairmen's Association. He's been in the Lampasas job since 1991, and tries to help candidates avoid filing mistakes. "A guy wants to run for office, I say let him run for office." But new chairs around the state fret over all of the things that can go wrong. "It's reinventing the wheel every two years," he says.
Wallace says he's in favor of anything that would improve the system, but competing interests often kill reform attempts. One argument is that it's best to leave a long-standing system for fear that change would just trigger a slew of mistakes. Another is that local pols don't really care to deal with the state party but would rather work with local officials who are closer to their own political interests. In some counties, chairs want the candidates to go through them and not through somebody up in Austin.
"It's a matter of being close to the locals," says Wayne Hamilton, a former executive director of the Texas GOP who is now a political consultant. He says legislators and some party people have tried to change the system through the years — to make state candidates file at the state party level, for instance — but the local outcry from some places has been too strong to overcome.
Lawmakers will probably tinker with the Election Code next year. They've certainly got a lot to tinker with. For instance, in 2003, they moved the primary election date from the second Tuesday in March to the first Tuesday in March. Candidates are still required to file on the first business day of the year. But the deadline for withdrawing from the ballot wasn't changed and is still set at 62 days before the election. This time, the deadline to get on the ballot was on January 4, but the deadline for getting off was days earlier, on December 30. Lawmakers will probably try to fix some of those glitches, and could change the filing procedures while they're in there.
Wallace, who testified against legislation that would have made some changes to the filing — letting candidates in one-county districts file at the state level to avoid local politics, for instance — is for an overhaul of the state's Election Code. That's one of the things we need to do is rewrite the whole thing," he says. "It is a convoluted mess. It is very difficult even for lawyers to interpret. And most of us who do this are not lawyers."
A Tale of Two Lawsuits
To hear Buck Wood tell it, the Texas Association of Business, with Bill Hammond at the helm, unscrupulously used corporate donations to run attack ads against state legislative candidates and didn't disclose properly. To hear Andy Taylor tell it, Wood lives in a fantasyland and TAB plays by the rules.
The stories aren't exactly easy to reconcile.
Wood, representing three Democrats defeated in the '02 election, made new moves on the lawsuit that alleges TAB illegally raised money from corporations that year and spent it on ads with direct political messages to voters. Not only were the actions illegal, says Wood, but none of it was disclosed properly.
"TAB and its corporate conspirators schemed to spend unreported corporate funds to support or defeat candidates for the Texas House of Representatives," he said
Wood wants to proceed with Hammond's deposition, which was delayed while criminal charges proceeded.
Taylor, who represents the defendants in the case, says it's all spin — and he's already moved to stop the deposition.
"What we said the day the lawsuit was filed in 2002 is what we're still saying in 2010," says Taylor. "TAB's public education program was 100 percent protected free speech."
Taylor's account is quite different from Wood's. He says that because the corporations gave money to TAB and not its political action committee, the donations were legal. Furthermore, he argues, the mailers weren't "express advocacy" because they never specifically exhorted recipients to "vote for" or "vote against" anyone — the so-called "magic words" test.
Not that it matters. Taylor says the most recent U.S. Supreme Court case, Citizens United v. Federal Election Commission, allows a corporation like TAB to become express advocates without concern about the "magic words."
"We win under the old standard but now we really win," he said.
Wood doesn't see it that way.
"The magic words test was never the test," he proclaims. "There were some circuit courts of appeals that adopted it and said it was the test but it's not binding at all." His lawsuit argues that the new Supreme Court decision in Citizen's United vs. McConnell shows that TAB's fundraising efforts required a higher level of disclosure.
"That's why I cranked this thing back up," he explains.
The lawsuit has already dragged on for almost eight years. Taylor says he will continue to fight Wood; other defeated candidates from '02 have already dropped their lawsuits and only Wood's clients remain. From the sounds of it, don't expect resolution any time soon.
Be It Resolved
U.S. Sen. John Cornyn will join a band of senators led by U.S. Sen. Lisa Murkowski, R-Alaska, pursuing a joint resolution of disapproval against the Environmental Protection Agency's recent greenhouse gas endangerment finding.
When aimed at a government agency, a resolution of disapproval isn't just a collective scowl from the direction of Capitol Hill: it can block an agency ruling from becoming law. The Congressional Review Act of 1996, passed by Republican majorities in both houses and intended to allow the legislative branch to push back quickly against regulation, authorizes Congress to nullify an agency's regulatory decision 60 days after it receives a report of the finding.
Cornyn and his Senate colleagues (and their counterparts in the House, led by U.S. Rep. Jerry Moran, R-Kansas) don't like the EPA ruling because it lays the foundation for the Clean Air Act's regulation of greenhouse gases, which would hurt economic growth, according to opponents. They could choose to propose preemptive legislation, but that's not strategic because even with
51 41 votes now in the Senate, Democrats could easily filibuster the bill or kill it in committee.
Under the CRA, Murkowski's resolution has the advantage of being filibuster-proof, but that's about it. If it gets through both chambers (not easy, as Democrats control the House), the president still has to sign off on it. And the Obama administration is a serious roadblock for any pols hoping to derail the EPA's endangerment finding, said environmental attorney Richard Faulk, who chairs the litigation department of the Gardere law firm. That's why Faulk said he sees the resolution "as more of a political move than something that's realistically going to change anything."
Because it has to get past the president, a transition between administrations —where a newly elected executive wants to do away with rules passed by his predecessor — is when a resolution of disapproval has the best chance at survival, according to Veronica Stidvent, director of the LBJ School's Center for Politics and Governance.
The only resolution proposed under the CRA to successfully undermine an agency ruling emerged under those circumstances in 2001. When George W. Bush took office, he signed a resolution passed by the GOP-controlled Congress against an ergonomics rule that restricted repetitive stress associated with physical labor, issued by the Clinton Labor Department.
A review of legislative records since 1996 shows that Congress has seen almost 50 different resolutions of disapproval under the CRA — seven of which targeted EPA rules.
The Week, in the Rearview Mirror
1. A report in the Dallas Morning News revealed Gov. Rick Perry believes in second chances for felons, especially if they can help him win his campaign against U.S. Sen. Kay Bailey Hutchison. Under the "Perry Home Headquarters" initiative, Perry's camp employs people to sign up voters who pledge to support and vote for the governor. A few of the 300 had felony criminal records, according to the story. Mark Miner, Perry's campaign spokesman, said the employees made mistakes in the past and were trying to turn their lives around and make a difference.
2. Foes of Hutchison had 25,000 reasons to label the senator a two-face after her campaign finance report showed a contribution of $25,000 from Bartell Zachry. Zachry's name is on the huge San Antonio-based highway-building company tapped to build part of the now defunct Trans-Texas corridor project, which Hutchison has pooh-poohed in her bid to unseat Perry.
3. Just as a Texas for Public Justice report detailing the shortcomings of Perry's Texas Enterprise Fund was set for release, Perry's office released a list of amended state contracts with 11 TEF companies whose results were reportedly falling short of expectations. The Associated Press reported two of the contracts had been terminated. Hutchison wants an audit.
4. In what was almost a gigantic environmental disaster, 450 gallons of crude oil spilled into the Port Arthur waterway last weekend. Luckily, between plastic walls and lucky winds, the oil remained within a two-mile area, and only two birds appeared to get coated in oil. The spill was the biggest in Texas in 15 years.
5. A small down-ballot race caught some attention. Some of San Antonio's heavy hitters — auto baron Red McCombs and HEB CEO Charles Butt — have all poured money into challenger Tim Tuggey's bid to unseat sitting State Board of Education member Ken Mercer, R-San Antonio. Tuggey raised around $60,000 in the last cycle. That's a lot more than Mercer's $8,000.
6. Debra Medina has been compared to Sarah Palin on several occasions as Tea Party-style populists with a one-of-the-people feel. But now they have one more thing in common: using campaign funds to buy clothing, ostensibly for the campaign trail. From July through December, Medina used $2,500 to buy clothes, generally not accepted by ethics standards. Medina has said she will donate them after the campaign.
7. The cost of attending the Tea Party convention in Tenn. has gotten up to $549 per ticket (not counting fees, hotels and airfare). The event has come under criticism from some who point to the movement's populist, working class themes. One major reason for the cost? Sarah Palin's alleged speaking fee of $100,000.
8. Bad news for Texas parents: Texas had the fourth highest teen pregnancy rate in the country in 2005 according to a recent study. That's a worse position for the state than in 2000, when the Texas ranked fifth. In teen births, Texas is number three.
—Julian Aguilar, Reeve Hamilton, Abby Rapoport, Morgan Smith
Political People and Their Moves
Chase Untermeyer of Houston will join the Texas Ethics Commission — he was appointed by House Speaker Joe Straus, R-San Antonio. Untermeyer has been a U.S. Ambassador to Qatar, a state representative, a newspaper reporter and an officer in the U.S. Navy.
Deaths: Walt Parker, a former state representative and NFL official who worked on legislative matters for the University of North Texas for 25 years. He was 92.
Quotes of the Week
United High School football coach Arturo Contreras to the San Antonio Express-News on Edgar Valdez Villarreal, his former player and now drug cartel king: "I really don't know what he's done. He's a hell of a football player, that's about it."
U.S. Rep. Sheila Jackson Lee, D-Houston, quoted in the Houston Chronicle, touting her record: "Sheila works and Sheila delivers."
Democratic gubernatorial candidate Farouk Shami to the Houston Chronicle on why his wealth makes him well qualified for governor: "I would judge it by who pays more taxes, me or Rick Perry? Me or Bill White? Every year, I pay more than they ever made in their life... And since I'm paying taxes, I'll be careful spending people's taxes."
Democratic agriculture commissioner candidate Hank Gilbert to The Dallas Morning News on his refusal to wear a seat belt: "I never wear one. I just plug them in to keep them from dinging... It's a stupid law. It's more of a personal rights issue."
Former gubernatorial candidate Chris Bell on how his former campaign manager Jason Stanford, once a Kinky Friedman critic, could develop a relationship and start working for the off-beat writer and agriculture commissioner candidate, quoted by The Dallas Morning News: "I think he adopted a dog from him."
Former U.S. Rep. and VP candidate Geraldine Ferraro on why would-be Democratic congressional candidate Reshma Saujani should not challenge a sitting Democrat: "You don't, if you're a Democrat, challenge an incumbent Democrat who has a position of power to get things done just because you feel like this is something you want to do."
Rep. Leo Berman, R-Tyler, who earlier considered challenging to Gov. Rick Perry, on why conservatives should stick with Perry and not support Debra Medina: "Many concerned citizens, who... complained that Obama did not have the background or experience to serve as president of the United States ... are now prepared to turn over the trillion-dollar Texas economy to an inexperienced candidate, who has no legislative or executive background, to serve as the chief executive officer of this great state."
Democratic political consultant Glenn Smith, on Republican gubernatorial candidate Debra Medina: "She wants to deregulate everything and arm everybody, which turns this into Somalia. Other than that, she's fine."
Wayne Hamilton, a Republican consultant and former executive director of the Texas GOP, on Medina's chances: "The best she can hope for is to kick the thing into a runoff — one that she will not be a part of. She might as well get a hammer and hit her thumb and get it over with."
Texas Weekly's Op-Eds
Fred Lewis: A Campaign Finance Coup D'etat
The U.S. Supreme Court's recent decision in Citizens United violates every principle of constitutional decision-making — and will be remembered as a judicial coup d'état intended to tilt the 2010 elections.
The Court's majority, in overturning the prohibition on corporate and union funding for election ads, went out of its way to declare a major Congressional law unconstitutional, even though its bedrock procedural doctrines dictate that the Court should avoid doing so whenever possible. These doctrines may seem like technical niceties, but they actually reflect core American legal values: deference to the people's representatives in a democracy, an understanding that an unelected Court should shun political issues, and our humble and wise tradition of courts deciding just the specific matter before them.
The Citizens United thumbs its nose at all that. First, the Court addressed and decided an issue not brought by the parties. Citizens United, an advocacy nonprofit that took little corporate money, renounced in the trial court its "facial challenge" that the corporate prohibition on funding independent political ads was unconstitutional in all circumstances. Citizens United asked the Supreme Court to decide only whether the corporate funding prohibition was unconstitutional "as applied" to them in their narrow fact situation. The Court decided on its own to address the facial challenge, holding the statute unconstitutional as applied to all corporations, even for-profit corporations, in all circumstances. There was no evidence in the record that there were exceptional circumstances; and the Supreme Court would be hard pressed to prove them, since the country has had a corporate campaign prohibition since 1907 and we have had no apparent shortage of vigorous free speech. The Court's power grab constitutes activist judicial arrogance.
Second, the Court easily could have decided, if it had wanted to, the case for Citizens United without addressing the constitutional question. It could have held that the statute, which banned corporate and union funding of television ads referring to federal candidates within thirty days of a general election, did not apply to a video-on-demand movie, as was involved in this case. It could have held that Citizens United fit a long-standing exception for certain advocacy nonprofits that take little or no corporate funds. However, the Court could not control its ideological desire to eliminate the corporate prohibition on funding electioneering that has been the law of the land for over 100 years and upheld by both conservative and liberal courts — until now.
Last but not least, the Court violated the conservative principle of stare decisis ("stand on the decision"), which means the it should follow its prior decisions except in very special circumstances. How special? The Court did not even expressly overrule in Brown vs. Board of Education its infamous decision in Plessy v. Ferguson creating the doctrine of "separate but equal." Stare decisis allows the public and policymakers to rely on prior Court decisions and protects the integrity of the Court by ensuring that the laws are more than the personal whims and conceits of five unelected lawyers appointed for life. Yet in Citizens United, there is no evidence of special circumstances in the record that would justify overturning years of settled federal and state law. The Court appears to have mistaken its political desires for an emergency, undermining stare decisis and its own legitimacy.
There are new statutory provisions that the Congress and the Texas legislature should pass to keep corporate and union funds out of our elections. They could ban corporate campaign expenditures by any company that has substantial government contracts. They could prohibit corporate political expenditures unless 2/3rds of all shareholders affirmatively approve. They could outlaw corporate campaign contributions from all corporations that have foreign subsidiaries or significant foreign investors. They could mandate that all state corporate charters or certificates to do business in their state proscribe corporate political expenditures to influence elections.
But the long-term answer to special interest domination of our democracy is developing stronger and broader civic and political participation. In Texas, millions of our adult citizens are not civically engaged, do not vote, and are not informed. In other states, foundations, businesses, and individuals have attacked successfully their civic engagement deficits by focusing resources and energy on the problem. For example, investments in civic engagement of disengaged Latinos have been made in New Mexico and Colorado, and Latino turnout has increased markedly. In Texas, civic engagement and voting lags terribly, especially among Latinos. In the 2008 presidential election, according to the U.S. Census, turnout of Hispanic adult citizens in Texas was just 37.8 percent, which was less than the turnout in Colorado (40 percent) and New Mexico (51 percent) in the 2006 mid-term elections! Turnout of adult Hispanic citizens in Harris County in 2008 was even worse: only around 21 percent.
The only way the needs of regular Texans will be addressed — as opposed to the special interest needs of the powerful — is for the public to become much better informed and more engaged; to get educated, organized, and involved. Even an arrogant, lawless Supreme Court cannot stop that juggernaut.
David Schenck: The End of Judicial Elections?
The U.S. Supreme Court has ruled that prohibitions on corporate-funded mass media in federal elections are unconstitutional. This ruling will almost certainly apply to like efforts by labor unions and lawyers and to the election of judges in 39 states. Whether we know it yet or not, the Supreme Court's decision in Citizens United v. FEC will come to be seen as the third horseman of the apocalypse for lawyers, judges, and those who favor the direct election of state judges.
Standing alone, Citizens United does not necessarily condemn state judicial elections, but it hardly stands alone. In 2002, the Supreme Court decided Republican Party v. White, which, like a first horseman, heralded the beginning of the end of state judicial elections. There, the Court found that judicial candidates enjoyed the same free speech rights as other office seekers, meaning that special ethical prohibitions on how they campaign have fallen. States can no longer stop judges from aligning with political parties, declaring their "position" on a policy issue, or directly soliciting campaign contributions from the lawyers or litigants who appear before them. In casting the deciding fifth vote in White, Justice O'Connor expressed her strong disfavor of the direct election of judges, but noted that states choosing elections have to live with consequences of that choice. Those consequences are getting more severe with each new Supreme Court decision.
The White decision was hardly surprising. The Supreme Court had rejected the argument that the administration of justice is somehow sacrosanct when it struck down rules banning lawyer advertising in 1977. But the ensuing onslaught of lawyer advertising on the sides of buses and telephone directories has done little to inspire public confidence in the organized bar or the legal process. Trash-talking judicial advertisements on TV and radio will yield the same caustic effect for the state judiciary and, by extension, state governments.
After White, a case like the 2009 Caperton v. Massey debacle (our second horseman) was inevitable. In Caperton, a coal company faced a $50 million fraud judgment in West Virginia. Acting in accord with the state's election rules and human nature, the company's CEO poured $3 million to the campaign of a candidate. When that candidate was elected Justice and sided with the coal company, the U.S. Supreme Court granted the case and ultimately decided that the federal Due Process Clause prevents a judge from sitting when a person with a personal stake in the case had "a significant and disproportionate influence" in placing the judge on the bench.
No Texas case has yet attempted to resolve the implications of White or Caperton for the state's judicial elections. Texas law limits the amount that any individual or political action committee can contribute to $5,000 per election with $30,000 cumulative per law firm and its lawyers and, at the moment at least, bars direct corporate giving. Still, the money necessary to run an effective campaign has risen dramatically and the campaigns had already taken on a bruising quality before the Supreme Court decided that corporations, trial lawyers and unions enjoy a constitutional right to run their own TV and radio advertisements. Meanwhile, Texas is now home to more Fortune 500 companies than any other state, and demographic change and increasing unionization efforts will make future judicial elections ground zero for the resulting conflicts to play themselves out.
The fourth horseman will be a case currently pending or soon to be filed in a Texas state court somewhere. The outcome will have huge consequences for one or both sides, as they often do. But this time one side will find $5,000 too little support for a favorable judge or candidate. Why just try to buy a judge, when you can destroy his opponent with an onslaught of direct TV ad buys? And if one faction is doing it, won't the others be forced to respond in kind?
This time, when the survivor of this election takes the bench with the support of some corporate litigant or wealthy trial lawyer, it won't just look like someone bought a judge or a favorable decision, it will look like it in primetime and in full public view. Pulling the judiciary out of that ditch may be impossible, or at least take generations. Meanwhile, the voters are likely to assume that the whole government is rife with corruption or at least that the other departments are incompetent to devise a way to save the judiciary. They won't know or care what the Supreme Court held in White or Caperton, or Citizens United. They'll just lose confidence in the rule of law and their government.
These recent Supreme Court decisions spell doom for judicial elections. We should recognize it now and move to some form of merit-based selection for our judiciary while there is still some hope of retaining the public's confidence in what the founders designed to be the non-political branch of government.
Texas Weekly: Volume 27, Issue 4, 1 February 2010. Ross Ramsey, Editor. Copyright 2010 by The Texas Tribune. 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 (512) 302-5703 or email firstname.lastname@example.org. For news, email email@example.com, or call (512) 288-6598.
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