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The Upside Down Session

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Friday was one of the big legislative milestones, the sixtieth day. This marks the end of the unrestricted period for introducing bills. Henceforth, lawmakers wishing to introduce legislation must get the permission of their colleagues to do so. Constitutional limitations on floor debate during the first sixty days expire. Starting Monday, the House will have daily floor calendars. So it’s a good time to take stock: Where have we been, and where are we going? Here are some questions that folks are asking:

Every session is different, but this one is really different. What is unique about the 80th Legislature?

This is one of the strangest sessions I have ever seen. Call it the Upside Down session: The sixtieth day is the point at which most sessions start to build in intensity, but the 80th Legislature has been high-pressure from Day One. Lawmakers have already dealt with many matters of great import. The speaker’s race. Busting the spending cap. TXU, HPV, TYC, TTC. (Maybe it’s the acronym session.) The intensity level has been off the charts since the opening gavel.

What is the most important thing that has happened so far?

The vote to bust the constitutional spending cap, which was necessary before the promised local school property tax cuts could take effect. Predictions of a train wreck–caused by a coalition of fiscal conservative Republicans and Democrats irked that the top priority of the state is property tax cuts–proved to be wrong. Democrats in both houses had hoped to use the spending cap vote to gain some leverage over the budget, but both Dewhurst and Craddick were able to thwart them and keep the wheels on the track by bending the rules at the crucial moment, Dewhurst by switching to a sixteen-vote strategy and Craddick by blunting a Democratic point of order with a ruling that was as inscrutable as a Rothko painting.

What is the most unexpected development?

The near-universal animosity toward the governor. Lawmakers don’t like his proposals, his appointees, or his claim to be able to create state policy by executive orders. They don’t like his handling of the TYC scandal.The flash point was his order to Health and Human Services executive commissioner Albert Hawkins to establish a mandatory vaccination program for young girls to combat the HPV virus that causes cervical cancer. Perry’s commitment to fight cancer is unquestionably sincere, but his bypassing of the legislative process on a sensitive issue involving parental rights was an encroachment on legislative turf that lawmakers could not ignore. HB 1098, overturning Perry’s order, is on the House Major State calendar for Tuesday. Its key provision reads, “Immunization against human papilloma virus is not required for a person’s admission to any elementary or secondary school. This subsection preempts any contrary executive order issued by the governor.” (I should note, as supporters of the program undoubtedly will do during House debate, that because the vaccine is opt-in rather than opt-out, the participation rate is expected to fall from 75% to 25%.) There are many hidden sinkholes on the “How a Bill Becomes Law” chart, but the likelihood is that this bill will reach the governor’s desk with plenty of time left for the Legislature to override a veto.

The HPV controversy is not the only point of contention between the governor and the Legislature. The policies he has advanced–privatizing highways with the Trans-Texas Corridor, building more coal plants (which Perry attempted to facilitate with another executive order, only to have it struck down by a judicial ruling), and the HPV mandate–all have galvanized large and vocal constituencies in opposition, and all have been marred by cronyism. Many lawmakers see these policies as issues that could imperil their reelection. Now his administration is ensnared in a terrible scandal of widespread sexual abuse at the Texas Youth Commission, the extent of which Perry denies knowing about until it appeared in the newspapers. I talked to several members of the select committee that is investigating the scandal on Thursday, and none of them believed his denial to be credible. Meanwhile, proposals are circulating to rein in his power, from a moratorium on the Trans-Texas Corridor to constitutional amendments empowering the Legislature with new authority to override his vetoes and to reject gubernatorial appointees. All of these are Republican initiatives. None is likely to become law, but they are indicative of the breadth and depth of hostility toward the governor. It is unlikely to get better any time soon. Anyone who thinks that Perry is going to back off in his effort to pursue his chosen course doesn’t know him very well. No one in Texas politics is more disciplined and resolute in pursuit of his objectives. The last time he felt snubbed by the Legislature, after the 2001 session, he vetoed more than 80 bills. He believes he has the authority to direct the executive branch of government, and he intends to keep on using it.

Will the Legislature be able to block Perry’s controversial policies?

I think that the Legislature will take some action to prevent the new version of TXU from manipulating electric rates–for example, by using debt as an excuse to raise rates. Higher electric rates can get members beat. But the moratorium on the Corridor is a riskier vote than it might seem. A lot of drivers are going to be stuck in traffic in the next two years, and anybody who votes for the moratorium could be the target of negative campaign ads–“Stuck in Traffic? Blame Rep. X. He voted to delay highway construction for two years”–for shutting down highway construction.

Perry cannot afford to antagonize the Legislature further. Those constitutional amendments allowing the Legislature to meet in special session to override his vetoes and eliminating the practice of letting appointees whose terms have expired to remain in their positions without going through the nominations process are serious threats to his power. He had better tread lightly until the Legislature adjourns.

Will the Democrats be a factor in the remainder of the session?

The Senate has a long history of working across party lines on most issues, but there will be some battles that are strictly partisan–for example, that phony bill to prevent voter fraud, which is really an effort to depress minority turnout. Bipartisanship in the House has been limited mostly to Craddick’s Democratic supporters, and the remainder of the Ds have followed the Dunnam-Gallego-Coleman strategy of confrontation, aimed at producing results in the electoral process rather than in the legislative process. This has been successful–seven seats wrested from Republicans and at least four Craddick Ds defeated–but at a cost of having no input into legislation. The current crop of Craddick Ds, led by Sylvester Turner, has decided to fight back, calling themselves “Democrats for Reform” and listing their legislative priorities. This was a bold move, as it makes themselves accountable if they fail (their opponents, handpicked by Dunnam et al, will accuse them of selling out and getting nothing for it). It also puts Craddick on the spot, because if he doesn’t help them, they may not be around to vote for him for speaker next time, and, if they are, they may not support him.

The DFR’s centerpiece legislation is Turner’s CHIP bill, providing for 12 months eligibility and a more generous assets test. It was voted out of Human Services, 8-1 (Tan Parker voting nay) and will likely pass the House before running into opposition in the Senate, where Lieutenant Governor Dewhurst opposes twelve-month eligibility. Craddick is a master of playing both sides of the street; remember those Republican primaries in which he endorsed anti-vouchers Rs but said, disingenously, that he couldn’t stop Leininger from opposing them. Will he continue to support Turner’s bill or will he let Dewhurst gut it and tell Turner there was nothing he could do? This could get very interesting.

What is the biggest disappointment so far?

In his eagerness to be governor in 2010, David Dewhurst has pandered to the law-and-order constituency by calling for new prison construction, against the recommendation of the committee chairs responsible for criminal justice in both houses, John Whitmire and Jerry Madden, who want to create more bed space by paroling nonviolent offenders. He has also injected Jessica’s Law, a well intentioned but deeply flawed proposal to crack down on sexual predation against children, into the legislative process. He can still recover by allowing Whitmire’s committee to correct the flaws, which were quite evident during the lengthy House debate.

Is there a roadside bomb that could blow up the session?

Oh yes. It’s called Frew v. Hawkins. The American-Statesman wrote a story about the case, in which the state has failed to meet the requirements of a consent order it signed in which it agreed to provide better services to children on Medicaid. The state has twice lost in the U.S. Supreme Court, and all that is left is to determine what the state will be forced to do and how much that will cost. The judge who has control of the case, which will be argued during the week of April 9, is the redoubtable William Wayne Justice, so “how much” could prove to be quite a lot–estimates range from $500 million to $5 billion per year. A $10 billion hit (for the biennium) would touch off a high-stakes debate over how to fund it. Some Republicans are already saying that the cuts should come from the rest of the human services budget, which would mean the elderly (nursing homes). Democrats will argue for reducing the size of the tax cuts. In the end, the entire budget would suffer.

Anything else?

Frew v. Hawkins is Armageddon. What else can there be after that?

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