They’ve got their work cut out for them

A governor vetoing legislation, university regents locked in power struggle with elected officials, threats of impeachment, all against the backdrop of a special session—sound familiar? You would be hard pressed to know whether it was the year 2013 or 1917.

Then

Our only Texas governor to be removed from office James “Pa” Ferguson (1915-1917) got into trouble because the board of regents at UT-Austin refused to remove particular faculty members whom he did not like. When the regents would not comply, the governor used his veto power (ability to reject legislation which requires two-thirds vote by both the Texas House and Senate) to remove most of the university’s appropriations.  In a special session called to address the appropriations issue, the House focused on and eventually impeached and then the Senate convicted “Pa” Ferguson who was removed from office.

Now

This time around, it is University of Texas Regent Wallace Hall that some legislators want to impeach during the special session for interference with the management of UT-Austin.   House Appropriations Chairman Jim Pitts (R-Waxahachie) has put forward a resolution to impeach Hall who has been locked in a power struggle to get information from UT-Austin administrators. Pitts has accused Hall of going on a “witch hunt” by continually requesting documents.

This is the latest in the battle between legislators, regents, and the governor.  Sen. Kel Seliger (R-Amarillo) was successful in getting a bill passed in regular session which placed restrictions and added training requirements for new regents. Gov. Rick Perry, who appoints the regents, vetoed the law.

So the last week of the special session is going to be the agenda clearing equivalent of a hot mess.   Trying to get through all of the agenda items and pass proposed legislation is never easy, but this is mission impossible.

Top priority was the final passage of the redistricting maps (the changed political boundaries) which resulted in extended lawsuits and a delayed primary process.   The House finally approved a map with minor revisions that basically “tweaked” the court ordered map put forward in 2012 by three federal judges. Now it just has to get past the three readings required under the state Constitution.

But wait, there’s more including the Governor’s proposal to divert half of all oil and gas revenue coming from severance taxes (fees charged to producers for extracting natural resources) to go to the state Highway Fund rather than to the Rainy Day Fund.  The proposal still requires a constitutional amendment—two-thirds vote by legislators which puts the measure forward for voter approval by majority vote.

And if they still have time the legislature will need to resolve whether teens should get mandatory life sentences with parole in capital cases and consider whether all abortions after 20 weeks can be prohibited.

Five days and counting.

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.

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.

Escaping, Xeriscaping, and Scapegoating

Last week Governor Perry gave a record breaking seventh State of the State message (a public address to the legislature about his policy priorities for the upcoming session).     The message was notable for what the Governor focused on, but it was also important for the things Governor Perry escaped discussing.  While previously he emphasized abortion limits and tough immigration reform, the speech contained nothing about either. It’s no secret that Governor Perry is considering a second bid for the White House in 2016, but some wondered whether his silence on controversial topics signals that he is agenda setting (establishing key priorities) on issues that will win support on the campaign trail.  He supported $3.7 billion funding for water and transportation projects to be paid from the state’s Rainy Day Fund and emphasized the need for a constitutional amendment to allow the state to return tax surpluses to taxpayers.  To amend the Constitution, the legislature must pass the amendment by two-thirds vote, and the voters must vote for the provision by a majority vote.

Governor Perry’s willingness to address the state’s water shortage was met favorably by supporters of xeriscaping (a method developed especially for arid and semiarid climates that utilizes water-conserving techniques such as planting drought-tolerant plants).  Regulatory mechanisms (rules that allow organizations to control certain types of behavior) allow Homeowners Associations (HOAs) to regulate what homeowners can do with their property.  HOAs (organizations in a subdivision, planned community or
condominium that make and enforce rules for properties in its
jurisdiction) frequently mandate homeowners cover their front yards with grass despite the high costs.  Watering lawns and landscaping accounts for about 50-80 percent of all home usage, but systematic attempts at reform have been limited.

Until now.

Two different proposals from Austin Democrats limit the ability of HOAs to prohibit xeriscaping. With water restrictions in place, however, such lawns wind up turning brown.  The bills prevent HOAs from banning xeriscaping with the hopes that homeowners will promote more water efficient landscapes.  Hopefully there’s some relief in sight.

And speaking of relief, there’s no way for the state legislature to avoid scapegoating (laying the blame on some other individual, group, or organization) for the problems faced by the Texas public education system given the ruling by state district judge John Dietz on Monday.  Last October over 600 school districts filed a class action lawsuit (a case supported by small groups acting on behalf of a larger group) against the state for underfunding public schools.  The lawsuit affects three-fourths of the state’s five million public school students, and the plaintiffs (the parties filing the lawsuit) argue that the state is not meeting its constitutional obligation to adequately fund public education. They sued following a $5.4 billion cut to education in the last legislative cycle. The state judge found that Texas violated the state Constitution by underfunding public schools and trying to shift the responsibility to the local level. Such an approach, he said, created an unconstitutional statewide property tax. An appeal by the state will most definitely follow.

Guess that means there’s no free lunch after all.

 

Business as usual, or maybe not so much

Now that the legislature is back in session, attention has focused on our citizen legislature (legislators have other jobs in addition to their role as representative).  In contrast, a professional legislature (where elected officials serve full-time, typically year round) is thought to be more like a job, so presumably officials put their own personal, economic well-being second.

Texas legislators are being criticized because they have to rely on other sources of income to support themselves (the annual salary is only $7200 per year), and some say that this leads legislators to engage unethical or even illegal spending of campaign monies, and additionally, it puts legislators in a position to find all sorts of financial incentives to make sure that their “real job” is turning a  profit.

The Texas Ethics Commission is getting ready to do a periodic legislative review which allows the office to examine key policies and revise, amend, or abolish provisions so government can work more effectively. The Commission may look more closely this time around to see if representatives are fulfilling their duties.  Political scientists typically view the role of a legislator as either that of a delegate (an official who ignores their own expert judgment about policies in favor of pursuing policies that are currently popular) or a trustee (someone who supports policies that may be unpopular, but which the official believes promotes the general welfare).  In the case of Texas, the concern is that legislator are doing neither, but taking actions based on personal interest doing ”bidness as usual”.

And speaking of where it has not been business as usual, take a look at Governor Rick Perry’s top level policy assignments. Perry has been slammed for his position on abortion and women’s health care, leading some to raise concern about support for women in the Governor’s Office, but that may be incorrect.

Even though Texas is a weak governor system (meaning that the Governor does not have extensive powers and authority), the governor’s office does hire a number of staff level positions—especially in areas where Governor is seeking top level advisors to work on policy initiatives. Through the appointment process (the mechanism by which the Governor can appoint the persons he wants to key positions), it seems Governor Perry can be considered rather progressive.  Both his chief of staff and deputy chief of staff (the two top advisers to the governor on policy issues) are women, over 60% of his office employees are female, and most importantly, about two-thirds of his senior policymaking personnel are women.  Contrast that with a recent report lambasting President Obama because his inner circle of advisers are disproportionately white and male.

Take that Washington—your gender gap is showing.

Judicious choices

Texas has a weak executive system—one where the governor’s formal powers are relatively limited because the office does not have expansive authority typical of other states. This plural executive arrangement means that the governor’s influence is fragmented across of different departments and that the governor shares his authority with other elected officials at the statewide level.  One important consequence is that key officials like Lieutenant Governor, Attorney General, and the Comptroller of the Public Accounts who typically would be chosen by the governor, run in statewide elections all on their own rather than relying on a gubernatorial appointment.

That being said, it’s still hard to think of Governor Rick Perry as a “weak” governor.  Maybe that’s because halfway into his unprecedented third term of office, he has just made his 224^th appointment to the state judiciary.   Governor Perry has appointed a new Texas Supreme Court Justice, Jeffrey  Boyd—Perry’s former chief of staff—to the highest civil court position in the state.  Judges in Texas must stand for election, but when there are vacancies because of retirement or death, the governor makes interim appointments—temporary replacements who can then develop a record in the office before running in an election.  Boyd replaces Dale Wainwright who resigned from the position amid speculation he will run for another statewide office in 2014. While Boyd has no judicial experience, he is considered a faithful Perry supporter and has 21 years of legal counsel experience, including service as deputy counsel for the Governor.

And speaking of choosing wisely, a new report out by the Texas Public Policy Foundation—a conservative think tank, an organization that studies public policy problems and proposes solutions—has criticized state criminal court judges for the choices they make.  The report questions whether judges are unnecessarily incarcerating persons into the Texas state jail system instead of giving convicted criminals rehabilitation terms which facilitate ending recidivism (a cycle of criminal behavior which results in repeat incarcerations) and lowering costs to the criminal justice system.  In Texas, persons convicted of relatively low level, non-violent crimes (typically financial or drug-related crimes) are being incarcerated at high rates. Frequently this incarceration means that inmates have little chance at being given a chance at reforming their lives including community supervision and service, treatment programs, and tough probationary terms.  The report points to the statistic that 30% of state jail inmates re-offend within the first three years of release.

Critics of the report point argue reform sounds all well and good, but the reality is that court-ordered supervision is something the system may not be ready for because personnel and programs are not in place to handle increased caseloads.  Moreover, such programs are expensive, and given the current budget constraints, reform of the criminal system cannot be a top priority.

Choices matter—whether judiciously made or not.

Railroaded?

This week the three Railroad Commissioners (heads of the agency) appointed Milton Rister as Executive Director to oversee the daily operations of the Texas Railroad Commission (RRC).  Rister’s appointment, a former Republican political adviser who serves on Gov. Rick Perry’s senior staff (until he takes office Oct. 1), is a big deal because of the status that the RRC has in Texas politics.

The RRC is one of the oldest (created 1891) and one of the most powerful agencies in the state because it oversees the regulatory framework for oil, gas, and mining companies, along with regulating natural energy resources. Don’t let the name fool you though. While at one time the commission regulated railroads, it does not do so any longer. Under the sunset legislation (laws passed to transfer authority or to eliminate departments or agency functions), the Texas legislature got rid of the last bit of railroad power the RRC had in 2005.

Today its emphasis on regulation and safety of energy resources is vital to the Texas economy. Our oil and gas industry supports 14.3 percent of the jobs in Texas and the industry is responsible for roughly 25% of our state’s economy. In recent years it has also had to deal with the health and safety issues surrounding “fracking” (hydraulic fracturing where water and sand are used to break up the earth to release natural gas).

What makes the RRC an even more politicized agency is that in Texas, with its plural executive system where power is fragmented at the top the top levels of government, the top three Railroad Commissioners are elected in statewide elections.  Most folks don’t know it, but Texas has a weak executive system (and you certainly wouldn’t think it based on the larger-than-life personalities we’ve had as governors!). That system means that executive authority (which in most states is concentrated in the hands of the governor) is divided among a plural executive system of officers (meaning that multiple people carry out the functions that typically are reserved to a governor in a state). Under the 1876 Constitution, our state founding fathers’ distrust of government led them to divide power into different elected offices.  So while governors in other states typically appoint heads of office, that’s not the case in Texas where we make them run for political offices with support and backing of the political parties.

In the case of the RRC, the three commissioners then have the power to appoint an Executive Director, and that’s how Rister got his job. He has been praised for his insight into working with the legislature. Prior to coming to the RRC, Rister had held another position on the Legislative Council which is a bipartisan group which works with the Texas legislature to draft laws, so Rister is keenly aware of how the system works.  Not everyone likes the guy, however, and he was called an “ideological hitman” in a Houston Chronicle editorial back in 2006 because of his shrewd political tactics.   It is also notable that he was a campaign adviser to Republican Clayton Williams who had a disastrous loss to Ann Richards in the 1990 gubernatorial election.

The RRC has a lot on its plate going forward especially given the safety concerns about fracking, so lots of folks are watching to see where the track leads us with Rister at the helm.