Opening the floodgates

Racial bias caught two high-profile GOP leaders off guard this week, opening the floodgates of criticism because of their political gaffes (some truth that a politician did not intend to admit).

Ken Emanuelson, a prominent Dallas Tea Party leader said “the Republican Party doesn’t want black people to vote if they’re going to vote 9-to-1 for Democrats,” raising questions about how welcoming the Republican party is toward persons of color.  Trying to throw water on the fire caused by Emanuelson’s comments, state GOP Chairman Steve Munisteri responded saying the statement did not reflect the party’s position and that Republicans were working hard to seek electoral support from both Hispanics and blacks.

Emanuelson defended himself pointing to the statistical reality of voter turnout (the percentage of persons who vote in elections).  African-Americans historically favor Democratic candidates in overwhelming numbers. Trying to deflect the controversy, he said he had not spoken on behalf of the Republican party, but that the views were his alone.

And someone who is no stranger to controversy, Fifth Circuit Court of Appeals (which includes Texas) Judge Edith Jones landed in hot water when she told an audience that minorities were more predisposed to committing crimes. Seemingly Jones was making the argument that persons of color are represented disproportionately in the criminal justice system because they are more inclined to commit crimes. The speech, which was actually made in February, so angered some attorneys who heard it, that this week, a formal complaint against the federal judge alleged ethics and judicial code violations.  Critics say that the judge’s statements violated the principles of judicial neutrality (judges should make fair and impartial decisions based solely on the facts and applicable laws, without being biased) and that the judge may need to recuse (excuse oneself from a case because of a possible conflict of interest or lack of impartiality) herself in future cases because of racial bias.

Meanwhile, Republicans have also been accused of a different type of racial bias when it comes to immigration reform by trying to block legislation that gives illegal immigrants a path to citizenship.  U.S. Senator John Cornyn (R-TX), a minority whip (an official in a political party whose purpose is to ensure party discipline as an enforcer in a legislature) is the ranking Republican (most senior member of the minority party) on the Judiciary Committee’s Immigration, Refugees and Border Security Subcommittee).  He is also a long-time critic of federal immigration policy, and he has proposed more border security measures (provisions to eliminate illegal immigration) saying that his measures must be included before he will support immigration reform. The legislation, being considered by the full Senate next week, is a major overhaul on immigration.  Cornyn’s amendments require more stringent border control including 100 percent situational awareness and operational control of the border (currently only 875 miles of the 2,000-mile southern border is monitored).   Critics have accused Cornyn of trying torpedo the current bipartisan reform bill, and they have said that Hispanics will send a torrent of voters to the polls to go after persons who do not support immigration reform. Cornyn’s office has responded that tougher measures are needed to stop the flood of illegal immigrants (there are about 11 million estimated in the U.S).

Let the flooding begin.

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.

 

Slap shot silence

You may remember that in October the Kountze School District had been slapped with a temporary injunction (an order which restrains a person from effecting a legal action or orders redress to an injured party) to prevent the display of banners with a Christian message. Public school high school cheerleaders had used their own money, made the banners off-campus, and unfurled the banners at football games.  The school district, concerned that the student-led Christian display was an Establishment Clause violation, had banned the cheerleaders from displaying the messages. The First Amendment prohibits the government from making any law “respecting an establishment of religion” and forbids the government from establishing an official religion and prohibits government favoring one religion over another.

Wednesday, a state district judge disagreed with the school district and held that the school could not prohibit such displays.  The school district will now have to appeal.

One legislator displayed his unhappiness with the Travis County District Attorney by criticizing one of its lead attorneys Rosemary Lehmberg who pled guilty to drunken driving in April and who is due for early release (serving less than your full sentence because of good behavior while incarcerated).   Rep. Phil King (R-Weatherford) called for District Attorney Lehmberg’s resignation and proposed HB 3153 to transfer the state’s public integrity unit (currently housed in the Travis County District Attorney’s office) to the Texas Attorney General’s office when the local District Attorney (like Lehmberg) is convicted of a crime.  King called it a “shot across the bow” to force Lehmberg to resign.

And speaking of cheap shots, the budget battle turned into a war of words when Rep. Sylvester Turner (D-Houston) went after Rep. Harvey Hilderbran (R-Kerrville) who authored HB 500—a bill giving $661 million in tax cuts to businesses including specific industries (e.g. insurance, hospitals, and oil and gas).

The two sparred over whether the tax cuts were at the expense of public education. Hildebran argued that strong business growth through tax incentives (reductions in taxes that businesses would have to otherwise pay) would fuel more taxes long-term into education. Turner challenged cutting the franchise tax because he favors restoring funding for over $5.4 billion in education cuts made last biennial session (two year legislative cycle).

At one point Turner accused Hildebran of not being truthful and questioned his competency by making a veiled reference to Hildebran’s public  statement that he is considering running for Comptroller of the Public Accounts (the chief of the state’s finances,  tax collections,  accounts, revenue estimations, and treasurer).

The quip caused the legislature to go to go unusually silent. Turner later apologized.

Governor Rick Perry is not apologizing for pushing hard to get HB 500 passed because it is a cornerstone of his legislative agenda this term.  He has threatened to call a special session (a short 30 day term called by the Governor to address specific issues) if legislators fail to pass “significant tax relief” this year.

Take that!

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.

Feeling lucky punk?

All 31 newly elected Texas Senators held a lottery last week to determine their electoral fate in the next two years.  What?  You thought they were just elected in the 2012 election cycle to a four year term?

They were—in theory.

Every state’s legislative evolution is unique.  Under the U.S. Constitution and following the decennial census, every state senate district is redrawn to ensure the state’s population is distributed approximately equally between districts. In the first election following the enumeration in the census (the counting of the population), all state senate seats come up for election.  What that means for 47 states is that Senators serve their designated term according to state law (which varies by state).  In a minority of states (Arkansas, Illinois, and Texas), the state senate terms are staggered and so Senate procedures randomly assign term lengths after each reapportionment—the redistribution of representation in a legislative body.   So after the first election cycle immediately following reapportionment, those elected in the three states use the device of random assignment to determine who serves for two years and who serves for four years after reapportionment.

How do they decide who serves what?   You take your chances, that’s how.

At the beginning of the legislative session, each senator draws an envelope with a number on a slip of paper sealed inside. Odd means you serve for four years, even means you serve for two.  So there were disappointed Texas Senators last week after they drew even numbers, including Wendy Davis (D-Ft. Worth) who had a hard 2012 election battle and Tea Party darling Donna Campbell (R-New Braunfels) who will face a tough challenge during a gubernatorial election year. Just unlucky I guess.

And speaking of lucky, looks like marijuana may catch a lucky break in Texas with bills that are being introduced which allow for the decriminalization of penalties for persons who are caught with marijuana.   Decriminalizing does not mean that the behavior is legal, it only means that the penalties associated with the criminal activity have been dramatically reduced.   One bill—originally proposed over ten years ago—limits the penalties for persons who are caught with marijuana, but who have a doctor’s recommendation that marijuana should be used for medical purposes.  In essence, that creates an “affirmative defense” (meaning that you are saying “yes I engaged in illegal behavior, BUT I have a reason for why I did it.”   Aother bill introduced lowers the penalties associated with recreational marijuana possession.  Neither bill legalizes medical (or recreational) usage, but both would help reduce some of the law enforcement costs associated with more minor drug usage (which costs Texas about $75 million per year).

And finally it looks likes guns may get lucky too. The Campus Carry bill that failed in the last two legislative cycles looks like its prospects are much better after Sandy Hook.  Lieutenant Governor David Dewhurst also proposed this week that K-12 teachers be given firearms training. Pro-gun rights groups hope this legislative session will expand gun access on college campuses and point to the shooting at Lone Star College in Houston where three people were injured as an example of why guns are necessary.

So you gotta ask yourself, “are you feeling lucky punk”?

Pandering and porn

Pandering and porn

Texas was the recent subject of a New York Times investigative report questioning whether the Lone Star state is giving too much in tax subsidies and incentives to businesses to encourage them to relocate or expand certain enterprise sectors. The concern is that Texas is losing potential income at a time when of a record budget deficit (the annual amount when expenditures exceed tax income). The deficit caused the 2011 legislature to cut $15 billion in state spending (about $5.4 billion in school funding and $4.7 billion in health programs alone), and the 2013 Texas legislature will have to cover the shortfall for Medicaid (about $7 billion) by March and to come up with $15 billion for Medicaid by 2015.

Critics argue that the tax breaks for businesses are corporate welfare (financial assistance for businesses that may not be justified), while supporters argue that the monies have contributed to Texas’ number one status in job creation (adding 1.4 million in jobs over the past 10 years-over 3 times more than any other state).  Texas lawmakers countered that the expose’ (investigative report which questions government behavior) doesn’t highlight that Texas’ has been below the national average for 70 consecutive months. They are concerned that it unfairly represents what Texas has done and points out that we may be victims of our own transparency.  Indeed most states don’t provide the kind of detailed reporting mechanisms that Texas provides, and so comparable data on other states is just not possible.  This isn’t pandering to businesses, supporters say, this is making sure that Texas is open for business.

There’s one group that government is trying to stop from being in business—child pornographers.  Last week President Obama signed legislation which increases sentences for persons who traffic in child porn.  The Child Protection Act of 2012  backed by two Texas lawmakers (U.S. Senator John Cornyn and U.S. House Representative Lamar Smith) authorizes courts to issue protective orders (court decrees to stop harassment of victims), increases funding for internet criminal investigations, and makes it easier to obtain subpoenas.  The tough law comes at a time when internet child pornography is becoming one of the fasting growing areas of criminal activity. One criticism about the new law’s “lock-the-door-and-throw-away-the-key-approach” is that it does not do enough for supervision, rehabilitation, and treatment.  A 2010 survey by federal judges highlighted that about 70 percent of the sentences were too high for child pornographers because what is needed is supervision and treatment.

No wonder the origins of the word “pander” refer to a “go-between whose motives don’t seem entirely pure.”

Pander away.

Shutting the door

The Fifth Circuit Court of Appeals slammed Planned Parenthood of Texas this week when it denied an appeal by the nation’s largest abortion provider.  In 2011, the Texas legislature prohibited organizations which provide abortion access from being funded by the state, and the Governor enforced that law by mandating that the Women’s Health Program (Texas’ largest public health program) reject funding for Planned Parenthood because it gives women abortion information.  A federal district court had given an injunction (a cease-and-desist order granted by courts which prevents a party from doing something) to Planned Parenthood to prevent Texas from pulling the money. A Fifth Circuit three-judge panel lifted the injunction in August, but the latest appeal was for an en banc rehearing (an appeal to have the full panel re-hear the case because one party argues that the three-judge panel made “exceptional mistakes”).  The denial of a rehearing means that the case is final pending a U.S. Supreme Court appeal.

The states administer Medicaid (the federal health care insurance program for low-income persons), and Texas is one of several conservative states pushing to end taxpayer support for Planned Parenthood. While federal dollars can’t cover abortions, pro-life supporters argue that if Planned Parenthood isn’t given federal monies for cancer screenings and birth control, then that frees up Planned Parenthood’s funds to provide abortion counseling.   Planned Parenthood has 77 independent local affiliates operating about 800 health centers in the U.S., and in Texas, Planned Parenthood is the Women’s Health Program’s largest provider—servicing 40%-50% of patients annually.  About 3% of all its health services are abortion-related. In Texas, neither the agency nor its affiliates perform the procedure.  What conservative groups are hoping is that cutting off funds will stop abortion counseling.

The state’s decision to close the door on federal funding will cost Texas $36.3 million in the first year and $45.2 million in the second.  Prior to this, the state of Texas paid about $5 million per year into the program.   As of November 1, the Women’s Health Program opens its doors. Under the new rules, doctors may give women information about family planning, but must give information in a non-directive way.  What does that mean?  Doctors may offer women with information about who provides abortions, but the physician cannot make a formal referral.

Guess we’ll have to wait and see what happens when women walk out the door.

And speaking of closed doors, Attorney General Greg Abbott told Secretary of State Hillary Clinton that the Office of Democratic Institutions and Human Rights (OSCE) could not be observers in the November elections here in Texas.  The organization, along with Project Vote—a watchdog group which monitors activities of government—had asked to be election monitors because of the state’s voter ID measure (which is not yet in effect because it is being appealed). Such election monitors (persons who come and observe voting activities to make sure the laws are being followed) are thought to be important, especially in states like Texas, which have a long history of voting rights violations.  Abbott argued, however, that the requests were at odds with the Texas’ Election Code because of concerns that the groups would not be “restrained in their activities.” Out of that concern, Abbott indicated that he will have officials block such groups if they come within 100 feet of a polling place.  Doesn’t sound like they are getting in that door even if they have been since 2002 when President George W. Bush invited the OSCE to watch elections in the U.S.