Not Ready for Prime Time

There couldn't be more difference between the two candidates for an open spot on the Texas Railroad Commission. If you see them one after the other, it's hard to conclude that Republican David Porter is the better choice. He's timid, uncomfortable in public, shows no signs of leadership and has apparently been through a quick political charm school curriculum designed to make him risk-averse and to keep him from making a mistake that would put the seat in Democratic hands.

Democrat Jeff Weems, on the other hand, comes on too strong. He's loud, talks too fast, includes lots of arcane details and tangential arguments and observations that don't make sense to people outside of the oil and gas business, and comes off like a guy who's afraid you'll cut him off before he finishes his pitch.

It's like the two guys walked into a room and someone handed Weems an amphetamine and Porter a muscle relaxant. Or the story of Goldilocks without the Baby Bear's porridge; the "too hot" and the "too cold" without the "just right."

That said, Weems clearly has a better command of the material, a firmer opinion of where he'd like the commission to go, and isn't bashful about saying where the agency that regulates the oil and gas industry in Texas doesn't measure up.

An oil and gas lobbyist who watched both men at a forum in Fort Worth last week said Weems will win overwhelming among voters who see both men talking about the campaign and the office they seek. That seemed a fair assessment of the crowd watching the forum. The problem? "He won't be able to see enough people before the election," the lobbyist said.

Porter's strategy seems designed around that very idea. Don't create any sharp differences with the opposition that might show voters there's a choice to be made. Rely instead on the fact that this contest will be on the lower part of the statewide ballot and that, with no other information available to most voters, the unknown Republican should beat the unknown Democrat by at least five percentage points.

The Weems strategy? Talk to anyone who'll listen, try to bring attention to the race, and try to find differences that matter to people in the business, who largely fund races like this — and the people outside the business, who actually cast the ballots.

You can get a sense of the personalities involved by watching a "Faceoff" put together by The Texas Tribune and available online here.

In the longer format forum in Fort Worth, the differences were even more apparent. Porter stumbled on several questions, notably when an oil exec asked his opinion about non-perforation zones —the sort of arcane stuff the RRC regulates. Weems brought up the subject himself in response to another question and seemed conversant enough to satisfy a room full of experts. Porter couldn't come up with any differences between himself and the current Republican commissioners — Elizabeth Ames Jones and Michael Williams — except that he doesn't think the name of the agency should be changed, and they do (he says it would be too expensive to change signs and letterhead and so on). He agrees with Weems that the agency should regulate air and gas emissions from wells, and says the agency should have more field inspectors flagging problems in the oil and gas fields of the state. He opposes federal environmental and cap and trade proposals, but offers no solutions, alternatives, or remedies that could be applied to those troubles from a spot on the Railroad Commission. He did say it would be a good forum for talking about those things and educating the public.

Porter certainly isn't the first candidate to reach prime time before he's ready, and given the current politics of the state and the low visibility of the race, he's got a good chance of joining the Texas Railroad Commission just because he's on the right ticket — even if he doesn't improve the quality of his stump appearances. Tony Sanchez was a political tenderfoot and got better (without actually getting good) and lost. George W. Bush went on a long tour of the state's smaller markets until he became presentable (and it was pretty rough back there in '93) and went all the way up the ladder. Porter doesn't appear to have that ambition, but you never know. For now, his best chance lies in remaining anonymous, and in a funny twist, his opponent's best chance lies in getting him some attention.

Waco Gets Another Shot

Democratic officials in SD-22 got together in a Hillsboro restaurant Thursday evening and nominated John Cullar to run for the Senate seat now held by Brian Birdwell, R-Granbury. Cullar is a Waco attorney, former McLennan County Democratic chairman (until earlier this year), and a former member of the State Democratic Executive Committee.

The nomination gives Waco another opportunity to try to hold its place as the political anchor of the ten-county district. That used to be a clear role based on its population, but the counties on the northern end of the district that edge the DFW Metroplex have more people and more voters now. Birdwell's success in this year's special election is partly a testament to that population shift. And it's a consequential issue this year; lawmakers will redraw the political maps in 2011, after the Census numbers are available, and Waco leaders fear they'll lose more clout if those cartographers don't include someone who lives in McLennan County.

The Democrats didn't have a candidate in that race until now and wouldn't have one at all if Kip Averitt hadn't resigned from the seat, and the race, after winning the Republican nomination last March. Birdwell won the special election for the remainder of his term. But because he quit after winning the nomination, the law allows both parties to appoint nominees for the general election. No Democrat ran in that party's March primary, but the Averitt resignation gave them another shot. Some Democrats in the area hesitated, fearing that a vigorous race for Senate might turn out more Republican voters and that those voters might also vote against U.S. Rep. Chet Edwards, D-Waco, who faces a difficult reelection bid. They apparently decided that wasn't a deal-breaker.

Now the question is whether Democrats will take a shot at Birdwell on residency questions before the general election. He's got two interesting items in his voting record. The first is that official ballot records in Prince William County, Virginia show him voting in the November 2004 election there; official records in Tarrant County, Texas, show him voting in the same election there. Voting twice in the same election is a felony. Birdwell says the Tarrant County records mixed him up with his brother and that he didn't vote in Texas that year — a possibility brought to our attention initially by Tarrant County election officials. But the sheets that voters sign when they vote can be destroyed after only 22 months under state law, and the only record still standing is the one showing the newest state senator cast a ballot in Tarrant County that year.

The second issue is more pertinent to this particular election. Birdwell voted in Virginia in November 2006. Texas law requires senators to live here for the five years before they take office. If a court were to say voting is an act of residency, it would have to conclude that Birdwell can't take office until after November 2011. Birdwell has said he remained in Virginia for treatment of burns he suffered in the 9/11 attack on the Pentagon and that he always intended to return to Texas and always considered it his true residence. But he voted in Texas in 2002 — 14 months after the attack — before registering as a Virginia voter in early 2004.

The clock is ticking on this: August 20 is the last day parties are allowed to replace candidates who drop off the ballot (though the courts can fiddle with those dates), and there's no time for a case to wind through a district court and up the appellate chain. In all likelihood, any challenge would have to be made directly to the Texas Supreme Court. Judges generally don't like messing with elections and with candidates chosen by voters. But voting is an act of citizenship, and has a way of legally locating a voter in a particular place. So was Birdwell a Texas resident voting in a Virginia election, or a Virginian who's not eligible to serve in the Texas Senate? At this point, that's a question only the courts can answer, and only one guy — Cullar, the new Democratic candidate — has the legal standing to ask for a ruling. He'll have to make a decision quickly.

Please, Mr. President...

Bill Flores, the Republican challenging Waco Democrat U.S. Rep. Chet Edwards, is so eager for President Barack Obama to visit his district that he’s willing to pay for it.

Obama, who Edwards supports in the 2008 elections, will be visiting Texas on Monday, and Flores would like to see the two Democrats hold a joint town hall. His campaign has even offered to cover the “reasonable cost of the venue.”

“Congressman Edwards sold Obama to Texas by citing his ‘judgment,’” Flores said in a statement. “It is time for them to explain to the voters why they have repeatedly forced a failing liberal agenda on Americans who do not want what the Pelosi-Obama-Edwards crowd is selling.”

Flores spokesman Matt Mackowiak says the campaign will consider the reasonableness of any proposal, but cautions that the offer only stands if Obama and Edwards appear together. Topics he figures they might cover include jobs, record deficits, out of control spending, and specific examples of good judgment on the part of Obama.

Mackowiak admits that the chances of such an event actually happening are not good. “Congressman Edwards hasn't held a town hall meeting in almost a year, so the chances are not good,” he says, using the opportunity to point out the Flores pledges to hold town hall meetings in the district at least twice a year if he is elected.

The Edwards campaign has been less than enthusiastic about the offer. Campaign spokeswoman Megan Jacobs shrugged it off as a cheap publicity stunt on the part of the Flores campaign.

No, Thank You, Mr. President

The three hottest races in the state, from a national standpoint, are the contests for governor and the reelection bids of incumbent U.S. Reps. Chet Edwards, D-Waco, and Ciro Rodriguez, D-San Antonio.

So, when the star of the Democratic Party also has abysmal approval ratings and is coming to a state he didn't carry at his most popular, there are three places he's not going: Houston, where Democratic gubernatorial candidate Bill White was mayor, and Waco and San Antonio. Instead, President Barack Obama will make stops in Austin and Dallas, hitting the state capital for a fundraiser and then a speech at the University of Texas before visiting Dallas for another fundraiser.

Fundraiser number one is for the Democratic National Committee, which has promised the Texas Democratic Party $250,000 of the haul, according to a TDP spokeswoman. The Dallas stop, at the home of attorney Russell Budd (of Baron and Budd, which made its name on asbestos lawsuits) is to raise money for the Democratic Senate Campaign Committee. That particular layover isn't about candidates — neither of the Texas seats in the U.S. Senate is on the ballot.

School Colors

Whether the University of Texas' admission policy passes constitutional muster is now in the hands of the 5th U.S. Circuit Court of Appeals. The New Orleans-based court heard oral arguments in Fisher v. Texas this week, the suit two white students brought against the school when they were denied entry to its undergraduate program.

The case is the first to challenge affirmative action policies at an undergraduate university since Grutter v. Bollinger — the seminal 2003 U.S. Supreme Court decision on the University of Michigan Law School's affirmative action policy. It attracted 30 amicus briefs from around the country, including one from the Obama administration in support of the state's arguments.

Burt Rein, the D.C.-based attorney for the plaintiffs, Solicitor General James Ho, who argued the case for the state, and Joshua Civin, the attorney for UT's Black Student Alliance, answered questions from the three judges for more than an hour. The plaintiffs, Abigail Fisher of Sugar Land and Rachel Michalewicz of Buda, believe the school violated the constitution's equal protection clause and violated the precedent set forth in Grutter.

Rein argued that UT had achieved diversity with a race-neutral policy — referring to the top 10 percent rule, which the Legislature instituted in 1998 — and that Grutter did not allow it to return to using race as a factor in the admissions policy in 2004. Ho called Rein's criticism of UT's policy as "white versus nonwhite binary conception of race that the Supreme Court rejected in Grutter," saying Rein's argument turned the case "on its head."

Supporters of affirmative action fear the case could provide an opportunity for the U.S. Supreme Court to narrow the Grutter decision to exclude more forms of race-based admission. The makeup of the court has changed, and Grutter was a close vote that went against the court's more conservative justices at the time.

Fisher and Michalewicz now both attend other universities, and avoid contact with the press. Edward Blum, founder of the D.C.-based Project for Fair Representation, the group that handpicked Fisher and Michalewicz as plaintiffs and is paying their attorneys, told the Texas Tribune that's because they aren't out to become "national figures in their cause."

Migratory Data

The purchasing power of Latinos and Asians living in Texas increased by more than 400 percent since 1990, totaling more than $208 billion in 2009, according to a recent report compiled by the Immigration Policy Center. For Latinos, that's an increase of about 430 percent from two decades ago, to $175.3 billion; it's a 626 percent increase for Asians, to $33.5 billion.

The populations of the two groups have increased enough to collectively be about 40 percent of the Texas’ population. Latinos in Texas currently make up about 37 percent of the population, about 8.9 million people, according to U.S. Census Bureau data for 2008. That represents a jump from 25.5 percent of the population in 1990. Asians are now 3.5 percent of the population, about 851,000 people, an increase of almost 100 percent from 1990.

The surge in population also translates at the polls, according to the study. An estimated 1.7 million Latinos cast ballots in 2008, representing about 20 percent of all voters. About 118,000 Asians, or 1.4 percent of the voting public, also flexed their civic muscles at the voting booths in 2008.

Immigrants in Texas made up a fifth of the state’s workforce in 2008 with about 2.5 million enjoying steady employment. Immigrants accounted for about 21 and 16 percent of the economic output in the Houston and Dallas metropolitan areas, respectively. And look at the economic contributions from the undocumented workforce. According to the Perryman Group, removing every undocumented immigrant from Texas would result in a loss of $69.3 billion in economic activity, about $31 billion in gross domestic product and a loss of more than 403,000 jobs.

The Week in the Rearview Mirror

Much anticipated and somewhat controversial public school ratings were released this week. They're based on a number of things, including a "projection measure" that allows schools to take credit for kids who don't pass if those kids are expected to do well later on. That has boosted school ratings for the last two years and drawn considerable criticism in the process. Although the TEA has defended the practice and lauded the number of schools receiving the highest ratings of exemplary and recognized, Education Commissioner Robert Scott has acknowledged that the program could be modified or even scrapped next year.

Sharon Keller isn't done. Offered a chance to accept a sanction and remain on the court, the presiding judge of the Texas Court of Criminal Appeals instead filed a petition with the Texas Supreme Court questioning the legality of the action against her by the State Commission on Judicial Conduct. Keller’s petition alleges that the Commission does not have the constitutional authority to issue a public warning and followed a procedural rule that conflicts with the state constitution. The commission's response to the court was due as this was published.

The campaigns are warming up. Bill White again accused Rick Perry of getting a Texas Enterprise Fund grant to benefit someone whose land dealings had benefited the governor. Perry's defense? The grant money referenced was never paid out. Perry bought the land in question from Sen. Troy Fraser, R-Horseshoe Bay, who had purchased it from Doug Jaffe, an investor in the company that received the TEF grant. An independent appraiser has stated that the purchase price was under market value to the tune of about $150,000.

Big donors to a Republican candidate don't usually appear on fundraising reports for Democratic candidates. But this year’s gubernatorial race has been unusual from the beginning, and the challenge to the governor from within his own party, in the form of Kay Bailey Hutchison, created a wedge that Bill White’s campaign has successfully mined for general election funds. Perry's still ahead. But Hutchison’s supporters have split their support, with White receiving about 60 percent of the amount given to Perry.

A hot topic in the desert Southwest this summer, illegal immigration cannot be addressed without border security, according to Gov. Perry. He has repeatedly said that Texas does not need an Arizona-style immigration law and continues to stress the need for increased patrolling of the border. More National Guard troops have been sent to the border area, but Perry’s contention is that the 250 allotted to Texas are not nearly enough to secure the border.

As the state of Texas moves forward with its lawsuit against the EPA, local officials in Fort Worth are doing their own environmental testing. The city has contracted with Eastern Research Group to conduct tests and compile a report that will provide a picture of the impact of natural gas drilling in the area and the resulting air quality. Concern over the emissions generated at the more than 1,200 wells in the area was heightened in May when the Texas Commission on Environmental Quality admitted that it had suppressed results of tests in January that showed high levels of benzene, a chemical known to cause cancer.

Political People and Their Moves

Greg Abbott named Daniel Hodge his first assistant attorney general and David Morales as deputy first assistant attorney general. Hodge and Morales will assume their new roles when the current first assistant, Andrew Weber, departs the agency and returns to private practice next week. Morales’ current position as deputy attorney general for civil litigation will be filled by William Cobb III. Cobb currently serves as senior counsel to the AG. Abbott also filled a vacancy that has remained open since Jonathan Frels departed the agency in June, and appointed David Schenck as Deputy Attorney General for Legal Counsel. Clete Buckaloo will serve as Director of Law Enforcement in the Criminal Investigative Division, a region on the org chart established by Abbott for the agency’s more than 140 peace officers, whose divisions currently report up to the criminal litigation folks.

Jason Robinson is the new, and first, rural ombudsman at the Texas Commission on Environmental Quality. His job is to help smaller cities link up with the agency. He was previous director of public works for the city of Ovilla, in Ellis County.

Gov. Rick Perry appointed Callie Vivion-Matthews of Fort Worth and reappointed Stephanie Sokolosky of Lubbock, Glenn Roque-Jackson of Plano and Pam Rollins of Dallas to the Texas Council on Autism and Pervasive Developmental Disorders.

Perry appointed James Wade Birdwell of Mansfield to preside in the 342nd District Court in Tarrant County. He's an attorney at Wallach and Andrews, and the brother of Brian Birdwell, the new senator in SD-22. Both brothers will be on the November ballot.

Josh Meeks, most recently found in the offices of former Sen. Kip Averitt, R-McGregor, moves to Ross Communications, an Austin-based public affairs firm.

Deaths: Former Rep. Lynn Nabers, who served as a Democrat from Brownwood for 14 years starting in 1969, then worked as a lawyer and lobbyist in Austin, later joining Strategic Partnerships, the firm founded by his wife, Mary Scott Nabers, from cancer.

Quotes of the Week

Sen. Eliot Shapleigh, D-El Paso, after Gov. Rick Perry said a car bomb explosion in El Paso (it was across the border, in Juárez) was proof the border isn't secure: "Quit lying about El Paso; quit conflating drug dealers with Hispanics to whip up fear; quit the Tea Step tour and come home — and get to work and fix DPS — that's one responsible thing you can do on your watch."

Sen. Troy Fraser, R-Horseshoe Bay, on being a passenger in a rental car driven by lobbyist and former El Paso Rep. Pat Haggerty, who was arrested for suspicion of driving under the influence: "I did not suspect the driver was intoxicated. If I had thought that he was impaired in anyway, I would have offered to drive."

Crosby resident Todd Anderson, on finding a large brick of marijuana after it washed ashore near his hometown, reported in the Houston Chronicle: "You never knew what was going to wash up on that beach. One day it could be dead bodies to drugs to stolen cars."

Comedian Jon Stewart on the Tyler Republican in the U.S. Congress: "That's not a normal congressman, it's Louie Gohmert. He actually believes that hate crime laws lead to necrophilia, and that senators should be elected by the state legislature, and that the moon is actually made of whipped cream that a giant fat man eats every month. I only made up one of those.”

Education Commissioner Robert Scott, on legislators' criticism of an accountability measurement that gives schools credit for students who didn't pass but might pass in the future: "This is an election year issue raised by a few people who want to put a damper on this day."

Former Sen. Kip Averitt on an early experience as a legislator, to The Texas Tribune: "So as I'm walking out to present my very first bill in the House of Representatives, every Republican in the House was walking out. And there I was facing 88 man-eating Democrats."

U.S. Sen. John Cornyn on the 14th Amendment's provision of birthright citizenship, quoted in The Dallas Morning News: “We need to have hearings. We need to consult constitutional scholars and study what the implications are.”

Democratic consultant Jason Stanford on a football clinic offered as one of the prizes in a raffle Perry's campaign is holding to encourage supporters to sign up voters, quoted in the Dallas Morning News: "How is Rick Perry not teaching this clinic? He can run and shoot."

Contributors: Julian Aguilar, Reeve Hamilton, Ceryta Holm, and Morgan Smith

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Texas Weekly: Volume 27, Issue 28, 9 August 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) 716-8600 or email biz@texasweekly.com. For news, email ramsey@texasweekly.com, or call (512) 716-8611.