I don’t think he can win a Democratic primary against someone of equal or greater stature, and if he does win the Democratic primary, he has no chance in a general election. He won’t get a single Republican crossover vote. Republicans don’t believe that Earle was a fair prosecutor as head of the Travis County Public Integrity Unit, which has responsibility for overseeing ethics issues at the Capitol. I did think that he was fair: Earle prosecuted high-profile Democrats, most famously then-speaker Gib Lewis, who chose to resign, and attorney general Jim Mattox, who served two terms and went on to run for governor against Ann Richards in 1994, losing in the Democratic primary. But Republicans will never forgive him for what they regarded as an overzealous prosecution of then-treasurer Kay Bailey Hutchison, bringing felony charges for offenses that were more in the nature of misdemeanors. Nor are they likely to forgive his prosecution of Tom DeLay. Both prosecutions were ultimately unsuccessful, although DeLay did have to step down as U.S. House Majority Leader. The point is, Earle has zero crossover appeal, and the Democrats must field a candidate who can win over Republicans who are not enamored of Rick Perry. This is a doomed candidacy.

Sylvester Turner went to the Public Utility Commission yesterday to argue for a petition he had filed asking the PUC to declare a moratorium on electricity disconnections for certain customers for the remainder of the summer. The customers that would be covered included low-income seniors (up to 125% of the poverty rate). The moratorium would expire on September 30. There were no freebies: low-income customers would pay one-third of their bills.

Turner went to the PUC prepared to argue that June was the hottest month in Texas history, and that Texans are paying 43% to 66% more than the rates in surrounding states. But Turner did not get to present his arguments at the hearing. Instead, he was preempted by the commissioners. They denied his petition before he ever got to make his pitch for it. Each of the three commissioners read their reasons for denial. Only then was Turner asked if he wanted to say anything. “To make a ruling prior to hearing anyone — that really did get my goat,” Turner said.

The arguments for denying the petition, as told to me by Turner, were:
* The cost of electricity today is lower than it was in 2006 (but, Turner says, consumption is higher due to the extreme heat)
* Customers can switch providers if they choose (but, Turner says, switchers may face a cancellation fee to leave one provider and must pay a deposit, usually two months usage or 1/5 of annual usage to their new provider)
* The system benefit fund offers financial relief for eligible customers (but, Turner says, the system benefit fund only covers 55% of those who are eligible)
* It would be ill advised to impose a moratorium in a competititve market
* People will game the system
* A moratorium would be detrimental to utility companies

“The arguments mirrored what the companies had written to the PUC,” Turner told me. “The industry could not have presented their case better than the PUC did.” He was particularly exasperated that PUC chairman Barry Smitherman argued, “It’s really not that much hotter than any other Texas summer.” “He’s totally detached from the real world,” Turner said.

Smitherman did tell Turner, “We can review this [decision] if conditions change.” “What does that mean?” Turner said to me. “It’s too late if people start dying. Seniors are more afraid of their electric bill than the heat.”

The danger of a special session for a governor is that he won’t get what he wants, and in failing to get it, will open himself to charges of failed leadership. That is why Perry planned to limit the session to the Sunset Safety Net bill that will continue the existence of TxDOT, the Department of Insurance, the Racing Commission, and other agencies, and to authorizing $2 billion in highway construction bonds that had previously been approved by the voters.

But Perry also wants the Legislature to renew the authority for Comprehensive Development Agreements, the controversial financing tool that privatizes toll roads, and to establish an infrastructure bank, managed by TxDOT, that would lend money for road projects. This is political dynamite. Toll roads are Perry’s biggest political liability. They have little support other than business groups. They are particularly unpopular with captive suburban commuters who are the key voters in a governor’s race.

This is the controversial language in HB 1, pertaining to the bonds, the proceeds of which may be used “to provide money for deposit in the Texas Transportation Revolving Fund or similar revolving fund authorized by law, to be used for the purpose of making loans for highway improvement projects as provided by law.” Guess who administers the intrastructure bank? TxDOT, of course. This has many members worried, lest TxDOT lend money that would aid the cause of privatizing roads. One of the concerns, for example, is that the bank would loan money to local toll agencies, which could then sell the project to Cintra or another private entity. It is my understanding that Chisum will have an amendment to provide safeguards against hanky-panky. HB 3, which would reauthorize CDAs, has the safeguards, but, as has been reported elsewhere, the bill lacks the support to become law — no one but TxDOT likes CDAs — and has not been scheduled for debate.

These are not good times for toll projects. “The credit market collapse and political opposition have all but killed the U.S. highway-privatization trend,” Barron’s reported in May. That same article quoted Toll Road News, an Internet publication: “Toll-road traffic decline has been more severe than in any other post-war recession.” Toll road traffic is down by 6%, and truck traffic, which accounts for half the usage on toll roads, is down 50%.

The governor’s fight for more toll roads and more Comprehensive Development Agreements makes no sense politically. It puts the spotlight directly on his most controversial policy. It’s a heaven-sent opportunity for Kay Bailey Hutchison to differentiate herself from Perry, but when I spoke to a Hutchison adviser today, I heard the same line, that she does not want to engage with the Perry at this time. If not now, on the best issue for her, when?

The 5-4 decision, with Justice Kennedy joining conservatives Alito, Roberts, Scalia, and Thomas, reverses the ruling of an appellate panel that included Court nominee Sonia Sotomayor. The city of New Haven, Connecticut, gave examinations to firefighters that would be used as the basis for promotions, then threw out the test when twenty white firefighters, but no black firefighters, qualified for promition. The city tossed out the test, it said, because it was threatened by lawsuits by the black firefighters. “Fear of litigation alone cannot justify an employer’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions,” Justice Anthony Kennedy wrote. Justice Ruth Bader Ginsburg, dissenting, said the white firefighters “understandably attract this court’s sympathy. But they had no vested right to promotion. Nor have other persons received promotions in preference to them.”

It’s easy for Kennedy to say that fear of litigation cannot justify an employer’s reliance on race. After all, he’s the judge; litigation holds no terrors for him. In the real world, the city was in an impossible position. If they promoted the white firefighters, the black firefighters would sue. If they didn’t promote the white firefighters, the white firefighters would sue. The city’s fear of litigation was justified. The courts should have given them a way out. Ginsburg’s argument gave them a way out, that nobody had a vested right to be promoted.

Jeff Wentworth is still unhappy about the failure of his constitutional amendment to authorize a short veto override session following the twenty-day period during which the governor decides whether to sign or veto legislation. (A third option allows the governor to let a bill become law without his signature.) Jason Embry’s story today raises by implication some serious issues about who should run the Senate — the lieutenant governor or the senators — and about whether the lieutenant governor should continue to be a powerful legislative officer. Here are the opening paragraphs:

Sen. Jeff Wentworth, R-San Antonio, thinks that Lt. Gov. David Dewhurst abused his authority in the recently completed legislative session, and he wants senators to change their rules in 2011 to prevent it from happening again.

To back up for a second, I wrote a story for the Statesman last week about the fact that most of the bills that Gov. Rick Perry vetoed this year received few dissenting votes as they moved through the Legislature. As part of that story, I talked to Wentworth, who unsuccessfully pushed a proposed constitutional amendment that would allow the Legislature to come back into a brief special session and override some of Perry’s vetoes.

Wentworth said that the measure had support from 26 of the 31 senators but Dewhurst would not recognize him to bring it up for a vote. And this part was not in that story — Wentworth said senators should change their rules in the next session to prevent that from happening again.

“If I have anything to say about it, we’re going to change the rules come January 2011,” Wentworth said. “We’re going to say, if you put a file in writing with the secretary of the Senate, 21 signatures that senators want to debate a bill, then the president of the Senate should recognize that senator the next day of the session.”

* * * *

I am very skeptical about efforts to change the time-honored procedures for doing business in the Senate. The Republicans did it this year with the special order for Voter ID, and it blew up the session. If Wentworth’s plan goes through, it will change the nature of the lieutenant governor’s office. The proposal grants 21 senators the ability to force the lieutenant governor to recognize one of their number to bring legislation to the floor. By denying the light gov the discretion of when and whether to recognize members, Wentworth would weaken the office and rob the legislative branch of a counterweight to the executive.

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So says Ken Rudin, who writes NPR’s daily political blog, Political Junkie. Dismissing House and Senate Republicans, he focuses on governors as the future of the GOP. This narrowing of the list omits Mitt Romney, Mike Huckabee, and Newt Gingrich, among others. Here is his list:

1. Tim Pawlenty (MN)
2. Jon Huntsman (UT)
3. Haley Barbour (MS)
4. Bobby Jindal (LA)
5. Charlie Crist (FL)
6. Mitch Daniels (IN)
7. Sarah Palin (AK)
8. Rick Perry (TX)
9. Mark Sanford (SC)
10. Jodi Rell (CT)
11. Bob Riley (AL)
12. Sonny Perdue (GA)
13. Mike Rounds (SD)
14. John Hoeven (ND)
15. Butch Otter (ID)
16. Dave Heineman (NE)
17. Jim Douglas (VT)
18. Don Carcieri (RI)
19. Linda Lingle (HI)
20. Jan Brewer (AZ)
21. Arnold Schwarzenegger (CA)
22. Jim Gibbons (NV)

This is not exactly a list of giants.

1. Pawlenty is a solid governor who should have been McCain’s pick for vice president. His recent announcement that he would not seek reelection in 2010 is attributed to (choose one) the possibility that he could be defeated by a Democrat in a liberal state; or that he has made up his mind to run for president in 2012.

2. Huntsman, who speaks fluent Mandarin, is Obama’s nominee to be ambassador to China. He is a Mormon, a religious affiliation that was a disadvantage for Mitt Romney in 2008. Huntsman addressed the issue on Fox, in a 2006 interview with Neil Cavuto: “And people hear about Mormons, and they think, gosh, they are a different breed or culture. But, you know, we have five U.S. senators. We have 18 in the House of Representatives. We have some of the great CEOs in America. We are just normal people, like everybody else. And, for some reason or another, people mischaracterize us.”

3. Barbour is a shrewd politician and political operative — he’s a former tobacco lobbyist who looks the part — who knows his way around Washington. He has just inherited the chairmanship of the Republican Governors Association from the lovelorn Mark Sanford. Asked this morning by Face the Nation’s Bob Schieffer about whether he might run in 2012, Barbour said, “I don’t have any plan to. I don’t have any intention to. Right now, I think every Republican who wants to rebuild our party needs to be focused on elections of 2009 and ‘10. I mentioned the New Jersey and the Virginia governors’ races, both very competitive and very important. We have 37 governors’ races next year, plus the entire House of Representatives, a third of the Senate. I’m not going to give any thought to running for anything until after the 2010 election. I’d be very surprised if I ended up running for president, but I can’t just say flatly no. But I would be very surprised. My wife would be even more surprised.”

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Kirk Watson’s trial balloon is in the air, as he weighs whether to run for governor in 2010. Here are the questions he should be considering.

Q. Can any Democrat win the governorship in 2010, or will the D’s repeat the mistake they made in 2002, when they put fielded what appeared to be a strong slate (Sanchez, Kirk, Sharp, Watson) only to get wiped out?

A. A lot has changed since 2002. The Texas Lyceum poll earlier this week described the electorate at 48% independent, 28% Democratic, 25% Republican. These numbers will not enjoy universal acceptance, but even if you were to flop the D’s and R’s, the Democrats have a good shot — the best since 1990. They have to put a team on the field.

Q. Can the Democrats resolve their internal debate over whether to concentrate their efforts and resources downballot, where they have enjoyed considerable success in less expensive courthouse and state House of Representatives races, or employ them in an expensive race for governor?

A. This shouldn’t even be an issue. If the party has any hope of regaining its credibility, it has to elect a governor. No other office, including a U.S. Senate seat, can have as much impact on how the public views the Democratic party. And Rick Perry is a vulnerable incumbent. To repeat: The Democrats have to put a team on the field.

Q. Is the party infrastructure capable of sustaining a major statewide campaign?

A. The potential exists, but there are too many fiefdoms: the Lone Star Project, the state House and Senate Democratic caucuses, Austin trial lawyers, Houston trial lawyers, labor, and the party itself. “You can’t send out a press release without six people wanting to rewrite it,” a senior Democratic strategist told me. The party should provide the message. It’s ridiculous that the Democrats went through an entire legislative session without having a daily attack on what the Republican leadership was doing — as the Republicans did to Ann Richards when George W. Bush was running for governor. This is easy do do and doesn’t cost a lot of money. Why haven’t they done it?

Q. Can a Democrat keep pace with Republican fundraising?

A. Democrats were able to match or exceed Republicans in targeted legislative races in 2008. The biggest problem is that national D’s keep coming down here and sucking money out of the state that could be used for a gubernatorial campaign. In 2002, Tony Sanchez had to self-fund his race. There is a lot more Democratic money now.

Q. What are Watson’s strengths? What are his vulnerabilities?

A. He’s very smart, very focused, impossible not to like. He can rally a crowd. He knows what it takes to run a statewide campaign, having run unsuccessfully for attorney general in 02. He knows the issues — except, that is, when Chris Matthews asked him to talk about Obama’s legislative accomplishments on Hardball after the February 2008 Texas presidential debate. Another potential problem is that he has the wrong political base: Travis County instead of Harris County or the Metroplex. His Republican opponent will chastise him as an Austin liberal.

Q. Will he have Democratic primary opposition?

A. Tom Schieffer is the only active candidate. But the Democrats have a lot of talent sitting on the sidelines. Henry Cisneros would be a formidable candidate, if he ever finds the will to run. Paul Hobby, who lost a close race for comptroller in 1998, is a possibility. Bill White or John Sharp could enter the governor’s race if Hutchison doesn’t resign her Senate seat.

Q. What is the political situation likely to be in 2010?

A. This is the great unknown. Timing is everything in politics. The situation in Texas is that the Democrats are resurgent, but they have not been able to win over the independents who left the Republican party. The Texas Lyceum poll showed the I’s leaning 4 to 3 (29% to 22%) Republican. Assuming that Perry and Hutchison stay on course to face off in the March 2010 primary (no sure thing), the winner will emerge bloodied. Advantage to the Democrats. But 2010 is also Obama’s first midterm congressional election, in which the president’s party typically loses seats. The political climate depends upon whether the economy has recovered and whether Obama remains popular. It’s too early to hazard a guess.

Q. What is the blueprint for a Democratic victory?

A. The battleground is the suburbs. Why do people live in the suburbs? They want good schools. Perry is vulnerable on education, from inadequate funding to supporting the nutty State Board of Education. They want good roads. Perry is vulnerable for building toll roads that amount to a suburb tax. They want lower home insurance rates. Perry is vulnerable because Texas’s rates are among the highest in the country. They want their kids to go to affordable state schools. Perry is vulnerable because the cost of college has gone way up during his governorship due to tuition increases. And, of course, he is vulnerable because he will have been around for just under ten years by November of 2010.

Q. What are Watson’s prospects if he stays in the Senate?

A. None. Or, if you prefer, he faces the prospect of getting run over every day. The Democrats are nowhere close to having a majority. The Republicans have changed the way the game is played to get around the 2/3 rule whenever they want to. He might as well go for “up or out.”