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.

Getting out the vote and giving up the fight

Next week the U.S. Supreme Court takes up a case which has ramifications for Texas.   Since the passage of the 1965 Voting Rights Act (VRA), the federal government has expanded authority to act as a watchdog over elections throughout the country.  The VRA prohibits state and local governments from restricting voting rights and access to minority voters by mandating preclearance procedures which require some state and local governments (including Texas and eight states) to submit all changes affecting voting and elections for approval to the U.S. Department of Justice’s Civil Rights Division or to the U.S. District Court in Washington, D.C.  That’s what happens every 10 years after the states conduct redistricting (the drawing of the geographic boundary lines to determine the representative structure for elections).

The question in Shelby County v. Holder (2013) is whether the preclearance process has outlived its purpose.  In 2008, then President Bush’s Justice Department filed a lawsuit against the city when it re-drew voting lines eliminating the only majority black city council seat.   Alabama argues that blacks were integrated into the population, and that continued supervision by the federal courts causes confusion and delay for elections–the South is a different place from 1965.

Texas agrees.

Or at least Republican leaders do.

Attorney General Greg Abbott has filed an appeal in a federal court case which struck down Texas’ 2011 redistricting plan.  Two different federal courts have found that Texas impermissibly interfered with minority voting rights with the plan, and Abbott’s appeal is likely to be on hold while the Supreme Court resolves the Shelby county case.

What do the rest of Texans think? Not everyone agrees with Abbott.  It might surprise you to learn that a recent public opinion poll found a slim majority of Texans (about 51%) including 1/3^rd Republicans think there is some place for federal supervision over voting rights.

And speaking of opinions, wonder what Governor Rick Perry is thinking as he watches other Republican governors giving up the fight with President Obama over Medicaid funding under the Affordable Care Act (Obamacare).  Under the law, Medicaid funding (the joint federal-state program providing health insurance to low-income persons) has been hard for governors to resist because it means more money for state budgets.  Eleven Republican are standing firm that they will not accept federal monies because they do not want to be under a national regulatory scheme (structure which allows the federal government to demand conditions from the states), while 12 Republican governors have not weighed in yet.

Trouble for Governor Perry is that this week Republican Governor Rick Scott, who had been resisting federal money, gave in and agreed that Florida will take Medicaid monies.   That draws attention to the fact that if the Governor changed his mind and let Texas participate by putting up the $15 billion (our share of the program costs), the state would receive $100 billion in federal funds in the next 10 years. Those funds could be used to expand  health care coverage for 2 million people–approximately 25% of Texans  have no insurance.

It promises to be a tough battle for the Governor.

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.

Health Care: Overhaul or Roadkill?

This summer the U.S. Supreme Court decided a case comparable to Brown v. Board of Education (1954) or Marbury v. Madison (1803) because of the political skill of the Chief Justice.  In National Federation of Independent Business v. Sebelius (2012) involving the Patient Protection and Affordable Care Act (PPACA) (2010) dubbed “Obamacare” by critics, the Supreme Court upheld expanding federal power over health care reform.

Chief Justice John Roberts was a swing voter (one whose vote is pivotal to a decision) and he surprised everyone in his 5-4 opinion which supported both conservative and liberal views.  The PPACA requires an “individual mandate”—persons must buy health insurance or pay a penalty.  Congress justified the law under its Commerce Clause authority (the ability to regulate commerce among the states) arguing that the failure to buy health insurance causes substantial economic disruption.  Roberts, along with four conservatives including Justice Antonin Scalia held that “failing to buy” insurance was economic inactivity that Congress could not regulate. Roberts parted with conservatives, however, and agreed with four liberal justices that the penalty for not purchasing health insurance was a valid tax under federal taxing and spending authority.  Roberts also disagreed with the liberals that the federal government may penalize states only by withholding new funds, rather than withholding all monies–giving conservatives an effective nullification tool that 26 Republican-dominated states can use to avoid federal compliance.

The reaction in Texas was swift, and critics and candidates alike have vowed to make it an election issue.  The law substantially increases Medicaid to cover previously uninsured persons and requires employers with 50 or more employees to provide health care, and it also gives subsidies and tax benefits to those in insurance exchanges.  These agreements allow small businesses to pool their labor force with other small businesses to do what large firms do—get better choices and lower prices for employee coverage.  Conservatives argue this is an unprecedented and unconstitutional expansion of federal power, violates principles of federalism (health care has been traditionally regulated by the states), interferes with states’ rights, and harms the economy because individuals and small businesses cannot afford it.  Liberals argued it was necessary because of problems in the insurance markets and because of the disruption to the economy because of skyrocketing health care costs.

If Texas participates–as the second most populous state with the largest percentage of uninsured residents (approximately 24% or 5.6 million people)–it could help bring down premiums. Critics argue that 1.7 million Texans need coverage by 2014 meaning increased workloads and raises concerns about how to implement the programs.  PPACA supporters argue Texas (ranked 50^th in the country for health care) needs the $70 billion in federal aid.  Consistent with Governor Rick Perry’s states’ rights ideology (the federal government should leave the states alone), the former presidential candidate has already informed the Secretary of Health and Human Services Kathleen Sibelius that Texas will reject federal monies. Republican Tea Party candidates like Ted Cruz are vowing to repeal the law if elected.

Why would a conservative like Roberts vote to support a liberal law? Perhaps Roberts’ exercised judicial deference toward the elected branches of government by deferring to the elected officials who passed the law.  If he had not, it might have been “judicial activism” (actively inserting ones’ own policy preferences into a legal dispute), and for conservative Roberts, inconsistent with his ideology.   Perhaps he was concerned about the court’s legacy and legitimacy if he voted conservatively. Or maybe the clue to the Chief’s motivation is in his opinion—that he hopes to engender a national debate about health care for the 2012 elections.

“The Framers created a Federal Government of limited powers, and assigned to this Court the duty of enforcing those limits. The Court does so today. But the Court does not express an opinion on the wisdom of the Affordable Care Act. Under the Constitution, that judgment is reserved to the people.”

We shall see on November 6, 2012.