Pushing buttons and pulling punches

Governor Perry is pushing hot button issues (highly salient issues which elicit strong emotional responses from other leaders and the general public) during the special session (30 day period that called by the Governor at the end of the regular session).  He has indicated that he is ready to pull the trigger on abortion reform and that he’s ready to pull the plug on the Public Integrity Unit (the agency that investigates the state agencies the governor oversees).

The Governor has called the legislature into special session to ensure his policy priorities receive the attention he thinks each deserves.  Texas has a plural executive system which fragments power among multiple offices.   Known as a weak governor system—one where the chief executive officer has limited power because other departments (typically under the governor’s control) are under another state officer who is subject to election by Texas voters. Top positions like Lieutenant Governor or Attorney General are offices elected by the people rather than by gubernatorial appointment.  There are other ways the Governor’s powers are limited.  For example, the Governor cannot suspend a capital murder death penalty—he only makes recommendation, the Board of Pardons and Paroles ultimately decides.

It’s kind of difficult to think of Rick Perry as “weak”-this is the guy who shoots coyotes while he’s out on his morning run.

How to think about the power a governor has is a complicated matter, and the National Governor’s Association (the professional association to which all governors belong) has quite a few ways in which you measure a governor’s power. No matter what metric you put on Texas, we have a weak governor system—but nobody told Governor Perry that.

He’s used the special session to give broad authority to Republicans to pass restrictive abortion legislation. Rather than define exactly what he wants done, he has said that lawmakers should consider legislation “relating to the regulation of abortion procedures, providers, and facilities.”  The Governor is not pulling any punches–he wants a law that prohibits abortions after 20 weeks (late term abortions).  This year Senate Democrats stopped 3 controversial bills because regular sessions require support from 21 senators before most legislation can be voted on–but those rules do not apply in special session (Republicans control the Senate 19-12 making them unstoppable during special session).

The Governor’s not stopping there.  He has threatened to use his veto power—the ability to reject legislation passed by the Texas House and Senate—to eliminate $7.5 million in funding for the Public Integrity Unit in Austin headed by District Attorney Rosemary Lehmberg.  She was arrested and pled guilty in April to having a blood alcohol level three times what is allowed under Texas law.  Perry’s critics saying he’s just looking for an excuse to eliminate the office which is investigating improper ties between Governor Perry and his cronies.

Look out abortion providers and Rosemary Lehmberg, the coyote killer is on your trail.

Just say no

The waning days of the 83^rd Texas legislative session are going to come down to yeas and nays.

The Senate HB 866 which reduced the number of tests public school children have to take. That means students who do well on state exams could skip mandatory tests (required grade level examinations) in sixth grade. That assumes that Texas can get a waiver from the federal government which requires 14 different tests by the end of eighth grade under the No Child Left Behind Act.  The law mandates our nation’s 98,000 public schools make “adequate yearly progress” and make remedial changes or risk losing federal funding.  Texas has over 80,000 fifth graders and 60,000 eighth graders who may be held back this year because of poor performance. While students have two opportunities to retake tests (in May and June), the bill’s supporters say resources used to administer tests can be targeted to help those most in need.  Further complicating the matter is that the Senate’s version still needs to be approved by the House which also eliminated tests in the fourth and seventh grades.

That’s a sticking point.

One measure that had legislators on pins and needles was mandatory drug testing (the use of biological material to detect specific drugs) for all unemployment recipients.  SB 11 by Sen. Jane Nelson (R-Flower Mound) required all unemployment recipients answer a screening survey about possible drug use in order to receive benefits under the Temporary Assistance for Needy Families  (the federal and state government’s joint social welfare program).

Time ran out on the clock at midnight last night, however, when a compromise failed. It is noteworthy that one amendment was proposed which would have required mandatory drug testing for legislators.

One provision that makes it easier for UT-Austin to just say no is a measure that extended the university’s admissions’ cap.  Texas’ ten percent rule allows all students who graduate in the top of their class be admitted to their choice of public universities.  In 1997 the state legislature established the ten percent rule in reaction to Hopwood v. Texas from the Fifth Circuit Court of Appeals which struck down public universities’ attempts to enhance diversity by using race as a key factor in admissions. By 2008, so many students in the top 10 percent of their class were using the rule that UT-Austin had to admit virtually everyone.  That hurt minority applicants who were good, but not good enough to meet the 10 percent cutoff.  So UT-Austin successfully obtained a waiver which was extended this week to effectively allow UT-Austin to admit the top seven percent.  Now the waiver is has a sunset provision (regulation that will eliminate the bill’s application) effective in 2017.

We will see what the U.S. Supreme Court has to say because we are waiting on a June decision in the Fisher v. Texas case which considers whether the Equal Protection Clause of the Fourteenth Amendment permits the consideration of race in undergraduate admissions decisions.

Just say maybe.

 

Soldiering on into the sunset

The march through agenda clearing (the process of completing the legislature’s policy goals for the two year biennial cycle) continues.  There’s much that still needs to be done by May 27, or else Governor Rick Perry would have to call a special session (meetings to address additional business) for 30 days. The biggest sticking points are budgets for water projects and education.  Governor Perry’s top priority is for a water plan that would use monies from the Rainy Day Fund (Texas’ budget surplus), but that proposal (backed by a Republican majority) takes $2 billion from the surplus and requires a constitutional amendment to establish a dedicated account (both require a two-thirds supermajority vote).

Democrats hope to rally the troops by threatening to withhold needed votes to force a compromise on education funding they want restored after the last biennium when $5.3 billion in school financing was cut.

What’s the legislature to do?

Even if $330 million in funding for the public teachers’ pension funds are reinstated (something that Democrats are demanding for a compromise to be reached), that still leaves a budget shortfall of $1.3 billion. Complicating matters is that Governor Perry wants monies for transportation which also have to come from the surplus.  That forces some tough choices on decision-makers.

Speaking of tough decisions, legislation which limits the decision-making authority of the Higher Education Coordinating Board (the policy unit regulating policies and procedures to operate public higher education institutions) was dealt a blow with Senate Bill 215 that limits the agency’s life expectancy to 12 years.  Such sunset legislation (requiring termination of an agency or program by a specified date) means that the Board will have to get future justification for survival.

Legislators think the Board takes an “isolated approach to decision making” (in the words of Sen. Brian Birdwell, R-Granbury) and point to the Board’s decision to close low-performing degree programs (those failing to graduate at least 25 students in five years). The Board is accused of being heavy-handed in closing programs (especially in rural areas which graduate fewer students), and legislators want more transparency and local control in the process.   Texas Higher Education Commissioner Raymund Paredes, who oversees the Board, thinks that Texas needs the Board now more than ever to oversee initiatives for nontraditional students and online courses or else there will be an uphill battle to improve quality.

And higher education has more battles ahead.  The showdown over guns on college campuses comes to a floor vote soon since the Senate Criminal Justice Committee voted 4-2 to allow each campus to hold annual hearings to vote on whether guns are allowed.  Some are concerned that there are no penalties for “accidentally” bringing an unregistered gun on campus, while others raise the issue that disgruntled students will use weapons if they are unhappy about grades.  Sen. John Whitmire (D-Houston), sponsor of the legislation that just passed, has proposed a solution, “grade on the gun curve.”

Soldier on faculty, soldier on.

Drowning the water bill and exploding investigations

It is shaping up for a legislative water fight in the last month of the session because HB 11 has hit a sinkhole.  The bill funds the state’s 50-year water plan, and while it had enough votes for passage (76 of 150 House members), the bill relied on $2 billion from the Rainy Day Fund (Texas’ $12 billion projected surplus). Legislation which raids the Rainy Day Fund requires a two-thirds supermajority vote (100 of 150 House members).  Both Tea Party conservatives (who don’t want to use Rainy Day monies at all) and Democrats (who wanted Rainy Day funds to be used for both water and education projects) were unhappy with HB 11.

The bill drifted because of a point of order (debate query about whether correct procedures are being followed).  To kill the bill, Rep. Sylvester Turner (D-Houston) argued House rules mandate a minimum number of days for consideration—HB 11 did not meet that prerequisite (it needed 6 more days for deliberation).  It might get incendiary though—Democrats have accused non-Tea Party Republicans of callousness because they are willing to raid the budget surplus for water projects, but not for children’s education.  There’s some hope—the Democratic Caucus has proposed amendments to restore education funding cut last legislative session—so a compromise could get Democrats on board.

Someone may need to throw water on the firestorm that has resulted from the explosion in West, Texas, which killed 15, injured hundreds, and triggered calls for both state and federal investigations.  Six different state and two different federal regulatory agencies have substantive jurisdiction (legal authority to regulate).  Lax regulation may set off finger pointing between Texas and the federal government because 270 tons of ammonium nitrate went unreported to the Department of State Health Services (that’s 1,350 times the amount needed to sound the alarm of an administrative inspection—requirements that regulators investigate health and safety concerns).

U.S. Senator Barbara Boxer (D-California) has also called for oversight hearings (the power of legislatures to review how laws are implemented) because the plant had exceeded regulatory standards (benchmarks established by regulatory agencies to enforce legislative provisions).  She sent letters to the U.S. Chemical Safety Board and the Environmental Protection Agency (EPA) requesting  investigations and guidelines for prevention.

This is serious stuff.

Finally, in the “that’s not funny” category, the West explosion sparked a paroxysm from Governor Rick Perry because of a political cartoon mocking Texas’ regulatory enforcement. The graphic shows the Governor promoting Texas’ capital investment (“Business is Booming”) and our anti-regulatory approach (“Low Tax-Low Regs”) next to a picture of a giant explosion (recalling images of West). The Governor demanded an apology, but cartoonist Jack Ohman says he’s not backing down.

Where there’s smoke there’s fire. Can someone please get the water hoses?

Personal blog note: Families of first-responders and victims of the West explosion held memorial services this last week.  Our thoughts go out to all those who lost loved ones and to those affected or injured by the blast. Texas is a big place, but in times like these, we remember that our small communities are linked together in spirit.

Water, guns, and lotto

What do all of these things have in common? Texans just can’t seem to get enough of them.

This week the U.S. Supreme Court heard oral arguments (a debate before appellate courts where both sides address legal and factual issues in the case) about a water rights compact (a voluntary arrangement between two or more states to solve common problems) between four states (Texas, Oklahoma, Arkansas, and Louisiana).  All states have water districts–local or regional government regulatory bodies–responsible for the provision of resources.  Here the instant row involves the Tarrant Regional Water District and the Oklahoma Water Resources Board which refused Texas access claiming that Oklahoma law restricts allocations of water, and it has enacted protectionist legislation (laws that serve the state’s interest, not necessarily the general welfare of other surrounding states).  Texas, thirsty for more water because of economic growth in the Dallas-Ft. Worth area claims we are entitled to 25% of the water and that Oklahoma cannot sell water that is part of the compact.  The Court decides in June, but there seemed to be some skepticism by the Justices about the ability of Oklahoma to charge for water.

And speaking of wanting more, after Sandy Hook in Connecticut, five states have passed restrictive legislation to limit gun access, but ten states have deregulated (weakened) restrictions on guns.  Texas wants to allow handguns on college campuses.  The last two legislative sessions, there have been “campus carry” provisions (allowing students, faculty, and staff over 21 to carry weapons on campus), but so far the efforts have been unsuccessful.  Arkansas recently passed a law allowing firearms in churches and on college campuses, and South Dakota law now allows school boards to arm teachers and volunteers. Whether the measure makes it is uncertain, and it may be destined for “dying in committee”.  So if it “dies” and never makes it out of committee, is there anything the Senate Criminal Justice Committee can do?  Not if the committee does not hold hearings, and so the bill may be unlucky this go round.

Are you feeling lucky punk? Surely the Texas Lotto Commission must feel that way today. After the first House vote on Tuesday, it seemed the agency, its profits, and bingo would all be abolished.   A second vote today, however, extended the organization’s life and $1.1 billion in monies for public education.   Most legislators opposed to gambling argued the lottery was a predatory or regressive tax–a tax on low-income persons–who disproportionately play the lottery.  At day’s end, the Commission was saved largely because of the revenues it brings in for public education and the Texas Veterans Commission.

So given that the U.S. Supreme Court seemed to question whether Oklahoma could charge Texas for water, that the “campus carry” provision seems dead for now, and that the lottery is still alive and well, Texans still get most of what they want.

Two out of three ain’t bad.

Bright lights

The latest salvo in the battle between the University of Texas Austin, Board of Regents and the Texas legislature has landed on the desk of the State Attorney General Greg Abbott. The UT System Regents Chairman Gene Powell has asked for an Attorney General memorandum opinion on whether the Regents must comply with a request by the lawmakers to turn over documents.  Such a written opinion by the attorney general interprets a legal provision requested by a public official, but it is only advisory.

Texas, like other states, has open records laws or sunshine laws put in place in the early 1970s to give such access.  The laws give a “right-to-know” legal process that is free or low-cost so citizens can request government-held information and ensure government accountability.

So what’s the problem?

The Texas laws include a provision giving legislators privileged access to the documents, and lawmakers have requested information related to an investigation about UT-Austin Law School and an independent foundation. There are also allegations that the Board of Regents Chair, Gene Powell, is fighting for his job and that lawmakers are seeking to trim the Board’s power.  Lawmakers do not want an investigation, but the Regents do.

Looks some additional heat is coming from the Board itself as they convene  in a special meeting this week to discuss whether the Board should comply with the records request.  The state legislature can hold oversight hearings (meetings to review the actions) of the Board.

Sen. Kel Seliger (R-Amarillo), Senate Higher Education Committee Chair may be hoping that some of the heat could be turned down, and he has suggested that Governor Perry address the issue directly by scheduling a meeting with all the concerned parties.  That makes sense, because Gov. Perry appointed all nine of the current Regents.

And speaking of trying to take the heat off, last week’s vote on women’s health care resulted in gains for 170,000 low-income women who will receive additional health care coverage under a compromise plan. The credit is being given to Rep. Sarah Davis (R-West University Place) who worked to ensure bipartisan support.  Davis, a pro-life moderate on abortion issues when laws interfere with the doctor-patient relationship (the private consultations between both) also negotiated funding for the Women’s Health Program (the low-income program for family planning). That program had federal subsidies (financial support with tax dollars) pulled after Planned Parenthood clinics were removed from Texas’ health care programs.  Monies that were restored replace millions of dollars in federal family-planning dollars (called Title X a comprehensive family planning and contraceptive program) cut under the Obama administration.

How did Davis do it?

Through multiple negotiations she convinced her GOP colleagues that cutting funding for women’s health programs could alienate conservative women.  Closer public scrutiny might make it look like the Republican party didn’t care about women’s health care.

Sometimes maybe the glare of the lights is a good thing.

Testing the waters

The fracas about fracking continues. Hydraulic  fracturing (fracking) involves shooting 4-6 million gallons of water, sand, and chemicals into the earth to break up stone and rock so that oil and natural gas can be released. The practice has grown substantially in the last decade, and today there are over 7,000 dumping sites in Texas which have waste water from fracking operations.

Fracking concerns range from criticisms about water usage to concerns the process contributes to increased risks of earthquakes. While scientists and policymakers continue to study fracking, there are some who think that greater legislative oversight (government supervision over certain types of activities) is necessary.

This week the Texas Senate Natural Resources Committee examined whether groundwater districts could regulate the water sources used to supply fracking operations.   Senate Bill 873 by Sen. Glenn Hegar (R-Katy) lets local authorities require oil and gas companies obtain permits for the water they use.  The bill would not, however, mandate that all water districts be required to do so, thus allowing home rule (local regulatory codes) to govern the process.  Under current Texas law there is an exemption (legal loophole to avoid regulation) for “drilling and exploration” by oil and gas companies. Some lawmakers think that’s not fair because the law regarding water permits was written over a decade ago before fracking became big.  Supporters argue farmers are required to obtain water permits why shouldn’t oil and gas companies?   Opponents argue it will hinder drilling operations.

It’s not been a good week for concerns about regulatory enforcement of oil and gas sites which fall underneath the Texas Railroad Commission.  That agency was criticized for its failure to comply with requests by the Texas Environmental Enforcement Task Force for documents related to the disposal of fluids from an oil and gas site.  Indeed, the Task Force had to get a search warrant (order issued by a judge that authorizes officers to conduct a search of a specific location) to get the information it needed.  Looks like the Commission may be in hot water.

And speaking of someone who doesn’t have to force the issue and who seems to be testing the waters, some political pundits are wondering whether U.S. Senator Ted Cruz may be already queuing up for bigger offices. The freshman lawmaker (his first term of office started January 3, 2013 as specified in the U.S. Constitution) plans to be a guest speaker at the Silver Elephant Dinner to be held next month in South Carolina.  Past high profile speakers reads like a “Who’s Who” of Republican presidential aspirants including Ronald Reagan, Newt Gingrich, and John McCain.

Wonder if the water’s warm.

Digging for gold

Governor Perry reminded the federal government on Friday that you don’t mess with Texas—or with Texas gold.  Seems the governor wants to bring gold that is being held  in New York back to a vault in Texas. The governor has some political back-up from Tea Party supporter Rep. Giovanni Capriglione (R-Southlake) who has introduced legislation to set up the Texas Bullion Depository—where the state’s gold could be held. Right now the 6,643 bars are underground in a New York facility guarded by the Federal Reserve Bank—the U.S. system comprised of 12 federal banks in various districts around the country. The Federal Reserve Board has broad regulatory powers (authority to enact measures to protect the money supply through the use of monetary policy). One component of that is making sure that banks have enough assets on hand to cover financial needs.

The purpose of the measure is really more of a symbolic policy—policies which have no tangible effect on the population, but which have political leverage with public opinion.  Why bring the gold home?   The psychological reassurance that the gold would be here—presumably the state is more financially secure in the event of a national or international crisis like a run on the bank.

Someone else who is hoping to strike it rich—George P. Bush–announced this week he will run in 2014 for Texas Land Commissioner-the person who heads up the Texas General Land Office.  The office provides oversight (management and supervision) for all state-owned lands including leasing for gas and oil production, operating the veterans’ loan program for land purchases, mining, grazing, and ensuring the environmental quality of public lands and waters. If there is exploration to be authorized on Texas lands, the Land Commissioner is the person to see.

Make no mistake, George P. Bush is not exploring public office, he has his eyes on the prize. The nephew of George W. Bush and son of Jeb Bush (former Florida Governor) has already raised $1.3 million for his campaign.  The Spanish speaking Ft. Worth consultant and  U.S. Naval Reserve officer (who was deployed in Afghanistan for 9 months) is considered to be a rising star in the Republican party—he was just appointed deputy finance chairman of the Texas Republican Party. He made his speaking debut as an official candidate this week, and while there were a few awkward moments, he seems well on his way. By all accounts he was comfortable with the audience and addressing key issues.

Here’s to going for the gold.

Taking aim at the revolving door

Legislators move on from doing the public’s business, to lobbyists who represent clients with close ties to business interests. The question is whether there’s an unfair advantage that the legislator-lobbyist has.  At least two different versions of ethics bills have been proposed in the 83^rd legislative session to limit the revolving door (the practice of having legislators go into lucrative lobbying practices representing clients they regulated while in office).  Laws requiring “cooling off” periods-requirements that former representatives wait a statutorily set time limit before representing private interests before the legislature—are set up in 34 states, although there is substantial variation across the 50 states.  The current proposals would require representatives wait 2-4 years before becoming lobbyists.

The Texas Ethics Commission requires all lobbyists register with the agency and some disclosure information, but Texas is ranked 38^th out of the 50 states in terms of lobbyist regulation. The 11 former legislators from the 82^nd legislature (10 House members and 1 Senator) include a diverse array of both public and private interests ranging from energy and education to the banking industry. Take for example Rob Eissler (R-Woodlands), former chair of the House Public Education Committee who now represents school districts and Pearson, Inc. or Mike “Tuffy” Hamilton who worked on the Licensing and Administrative Procedures Committee (regulating alcohol permits) who now works for both the Texas Restaurant Association and the Beer Alliance of Texas.

And speaking of ethics, Rep. Giovanni Capriglione (R-Southlake) was blasted by his defeated, primary opponent Vicki Truitt for his proposed legislation which targets legislators and their family members who receive government contracts.  Texas law, like most states prohibits legislators receiving compensation for trying to obtain contracts for a business in which they have a “substantial interest” (more than 50%), but family members including spouses, are not prohibited.  Additionally, there is a loophole (method of circumventing or avoiding the law)—legislators  can still have substantial interests in business contracts if the contract is done via sealed bidding (submitting a secret bid and the lowest bid wins the contract).  Capriglione’s law would have disclosure requirements (provisions mandating public access to financial records). Truitt’s re-election was shot down by Capriglione in part because he criticized her husband’s business contract with the taxpayer-funded Tarrant County Hospital District.  Capriglione has been accused of waging a ‘vendetta’ against Truitt who has since gone on to become a lobbyist for the Texas Hospital Association.

Let the political spinning begin.

Baby you can drive my car

Texas roads aren’t just known for their excessive speeds, they also seem to be a favorable testing ground for experimental automobiles because of our regulatory framework (the rules and regulations which govern the enforcement of our laws).   Last week Google tested a prototype car which needs no driver—although the manufacturer required that there be a person sitting in the driver side while someone else sat in the passenger seat.  This first ever vehicle—which navigates itself—operates in much the same way that airplanes behave when the instruments are set for automatic pilot.

The company brought the car out here from California and did a test drive from New Mexico to Texas and around Austin as part of Texas’ Department of Transportation Forum held to highlight transportation solutions for the future.  There’s still some question about whether the vehicle was “street legal” because neither Austin, nor the state have laws that regulate “self-driving” technology. Three states, California, Nevada and Florida all have laws in place to address such technological innovations, giving new meaning to “who’s in the driver’s seat.”

And if you need oil and gas to run those vehicles, Texas promises to be the place that can help with that too.  A recent survey of the oil and gas boom in Texas highlighted that the Lone Star state is responsible for over half of the rigs in the U.S. and more than 1 in 5 rigs in the world is operating out of Texas.

Who would have expected that in the early 1990s as the industry stalled and the Texas economy stagnated? Indeed back then, many political scientists and economists spoke of Joseph Schumpeter’s theory of “creative destruction”—the process of change that occurs within economic structures where old and outdated economic forces are destroyed and new ones are created.  While Schumpeter was a conservative largely critical of government intervention during the Great Depression and World War II, his economic principles—when old industries die they are replaced by newly emerging ones—became  vogue during the dotcom boom and bust in the early 2000s.

In Texas, the rise of information technology (IT) as the oil and gas industry struggled was critical for maintaining Texas’ fiscal health.  Now that the oil and gas industry seems to be undergoing a resurgence, it is now IT which may be in need of entrepreneurial re-vamping.   ”Fracking” (hydraulic fracturing) is the controversial technique which creates fractures in rock formations by injecting fluid into cracks to force them to open into larger fissures allowing oil and gas to flow out of the formation so it can be extracted. It has increasingly been used around Texas to take advantage of additional gas reserves that have not been fully tapped. Its economic impact is being touted as a way forward in economically difficult times and that it reduces our dependence on foreign oil.

Wonder how long before the self-driving car learns how to fill up at the gas station?