A Traffic Jam, Right on Schedule

This is the rush hour for redistricting, and the legal and political snags are just as nasty as everyone expected them to be. Both the Republicans and the Democrats are playing smash-mouth politics, as their legions would hope and expect, and the whining has reached a fever pitch.

Start with the United States Department of Justice. It's certainly not the last step, but the Senate redistricting plan approved by the Legislative Redistricting Board last July is okay with the DOJ and probably has only one more significant hurdle to clear. That'll come in a few weeks, when the plan goes before a panel of three federal judges.

The plan for the lower chamber, on the other hand, got stuck at Justice. The feds asked for a 60-day extension so they can continue to look at the plans for the Texas House. That doesn't mean they'll take two more months—just that they wanted more time. The extensions come in 60-day chunks, but the lawyers can kick out a plan whenever they finish sniffing it. There were strong rumors that the DOJ planned to rule on the House plan at the same time it ruled on the Senate plan, but decided to wait until after they heard last-minute pleas from Attorney General John Cornyn. Cornyn, who zipped both plans through the LRB and has the job of defending them, visited the feds a week before they ruled on the Senate plan and asked for the extension on the House map.

Redistricting wizards we talk with say the House plan is legally the weaker of the two. A number of them speculate that Cornyn's appeal delayed the feds from declaring it ill. We've mentioned it before, but Harris County is the part that worries many of the experts. The county has 25 seats and the numbers narrowly justify only 24. Whether that's a fatal flaw is what we'll find out from the feds in the agency and on the court in the next few weeks.

Meanwhile, the courts can go ahead with their trials on the plans without pre-clearance from the Justice Department. But they can't rule until after DOJ has pre-cleared the plans. That means the Senate plan, now free of DOJ, is ripe for the courts, which will start a trial on that subject in a week or two. A court ruling on the House plan will have to wait, but the trial can proceed.

The Justice Department hasn't had a look at congressional plans for the perfectly good reason that there are no such plans yet. The state could have submitted plans approved by a state district judge, but the legality of the plans was being questioned before the Texas Supreme Court as we went to press, and the state decided not to submit anything until the Supremes have sung.

The state, or at least part of it, went to court to try to undo some of what state District Judge Paul Davis did a week earlier to the congressional maps. Briefly, he switched from a map that favored Republicans to a map that would give the Republicans and the Democrats about the same number of seats in the Texas delegation. Although the Democrats have a four-seat advantage now, they consider the Davis map a victory; the Republicans, though they would gain a few seats, see it as a devastating loss. The judge turned the mapmaking into a drama by first putting out a map that was favorable to the Republicans and then changing it at the last minute to lessen the Democrats' losses.

That pushed the deal into the Texas Supreme Court, which is being asked to throw out the Davis map and either substitute another map—perhaps the one drawn by AG Cornyn, perhaps the map that was used in the last elections—or to throw it out and let the next court start from scratch. If the Texas court decides a particular map is legal, it'll be sent to Justice. Otherwise, everyone waits for the federal court's decision after a trial that begins on September 22.

One State, Divisible

While Attorney General John Cornyn fights to knock down the Davis map and put his own in its place, lawyers for House Speaker Pete Laney want the courts to move ahead with the Davis map. Failing that, they want the courts to start their mapmaking with the political districts as they exist today. In long (for the Supreme Court) arguments, Cornyn said that he alone has the job of preparing a map when the Legislature fails to do so, because he's the state's lawyer and represents the state's interest. The folks on the other side maintain that current law is the best version of legislative will if the court's maps aren't used and if the most recent Legislature couldn't agree on a plan.

Guess what? The Cornyn argument would result in a Republican map; the other side's version of the world order, or the Texas piece of it, would result in a Democratic map. Cornyn's congressional map has 20 solidly Republican seats and six solidly in the Democratic column. That's the number of seats that have shown at least 55 percent Party strength, one way or the other, in the last couple of elections. One more seat leans to the Republicans, but at less than 55 percent strength, and the other five fall into marginally Democratic territory. The map doesn't pair anyone, but it would make political life unpleasant for several incumbents. And the current mix is 17 Democrats, 13 Republicans.

The same lawyers trying to knock down the Davis map are trying to keep the prevailing members of the LRB from having to explain how their maps got put together. The maps materialized in public just before the panel voted to approve them on a 3-2 vote. Laney wants to depose the winners to find whether their work circumvented the state's open meeting laws. The deposition of Lt. Gov. Bill Ratliff (who, with Laney, voted against the LRB map) has already been taken. Lawyers for the governor say that deposition should not be admitted into evidence and say the other three members of the LRB—Cornyn, Comptroller Carole Keeton Rylander, and Land Commissioner David Dewhurst—should not be deposed at all. The argument? Although the three are members of the executive branch of government, they were acting as legislators. And since they were acting as legislators, they should enjoy the same immunities from explaining their actions that legislators enjoy.

Cornyn decided to argue the case himself in spite of the fact that the politics don't necessarily fall his way. If he wins, he was just doing his job. A win would probably kill Davis' map—the Republicans would love that—but would introduce the risk of a new and higher-ranking set of judges drawing a new map of their own that might be as bad or worse. A loss would be, well, a loss. Who wants to campaign on the platform of losing a case of high importance to the core of his own political party? His advisors winced, but he went ahead and argued the case.

A Combination of Ambition and Redistricting Wounds

U.S. Rep. Ken Bentsen, D-Houston, is officially exploring the race for U.S. Senate. He had been looking at the race, but he's taken the next step and formed an exploratory committee so he can decide whether to jump or not jump. On the up side, it's an open seat and the other two candidates don't have federal experience to match Bentsen's. His uncle, Lloyd Bentsen, held the seat until becoming U.S. Secretary of the Treasury. That's good for name recognition, the argument goes. On the downside, members of Congress don't have a terrific track record when trying to convert to statewide races. And the Bentsen name hasn't been on a statewide ballot in Texas since 1988, when Sen. Bentsen ran simultaneously for reelection and for vice president under the Michael Dukakis banner.

There's also a timing problem: Many of the state's leading Democrats have already endorsed Dallas Mayor Ron Kirk, who is also exploring the contest to replace U.S. Sen. Phil Gramm. Former University of Texas footballer Ed Cunningham is also running on the Democratic ticket, and former Attorney General Dan Morales is still exploring, too. Side note: Early in his career, Kirk was an aide to Bentsen's uncle. Bentsen was looking before the maps came out of court, but he's got to be looking at the congressional redistricting maps approved by a Travis County judge. Both the early and late maps drawn by Judge Paul Davis would pair Bentsen with U.S. Rep. Sheila Jackson-Lee in a district that favors Lee. If a map like that is enacted, Bentsen has no reason to try to stay put.

Everything's on Track—There's No Money

Tucked into the cover letter on a scintillating "budget certification statement" from the comptroller's office is this gem: "These circumstances unfortunately preclude the certification of any contingent additional appropriations for the foreseeable future."

That buried line didn't get much attention from reporters or others, but the lawmakers who were hoping for that contingent spending sure noticed. Contingent appropriations are the items added to the state budget in case the comptroller can find the money to make them happen. During the last decade, the economic boom has allowed comptrollers to pony up the money and look good to lawmakers and constituents alike. But for now, Comptroller Carole Keeton Rylander won't be handing out any swag. Among the $443 million in items that can't be funded, at least not now: Texas Grants and junior college formula funding, a judicial pay raise (which increases the size of legislative retirements), and a 3 percent pay raise for public employees in the second year of the biennium (there's still time, if the economy turns).

Rylander noted that the economic estimates were made before September 11, and that she and her gurus don't yet know what effect that will have on the economy. She said those events could affect the economy so that "it may become necessary to provide a revised forecast once the direction and pace of the economy become clearer." And even if her estimates don't change, the state's budget picture is cloudy. Outside guesstimaters say the state will enter the next legislative session with a hole of up to $5 billion to fill. That's the gap between expected spending growth—driven by things like caseloads and prescription drugs and school enrollments—and expected revenue growth—which, because of the state's heavy reliance on sales taxes, is driven largely by a healthy retail economy.

High Speed Chickens

The ban on political contributions from vendors to the Texas Lottery was going to end in a year, but some fast footwork from lottery officials killed that idea before it generated a second round of stories in the papers and on television. Credit the Dallas Morning News for digging this up: In the new nine-year contract signed by the Texas Lottery Commission and Gtech Corp., those contributions would be legal. The contract won't take effect until September 2002 (just in time for next year's general election), but it was all signed and sealed. On the day the News' story ran, the state agency and the company amended the contract. The amended deal is just like the old one; the contributions are banned.

Those political contributions have been out-of-bounds since the lottery began; lawmakers at the beginning of the show back in 1991 were scared to death of the taint of state-sponsored gambling, and they were familiar with problems in other states at the time. For instance: A California state senator and a prominent lobbyist there were popped in a sting operation just as the Texas Lottery was starting up, and the advantages of such contributions at that point were outweighed by the odor.

The Texas officeholders wanted the money the lottery would put in the state treasury, but wanted to close off even the possibility of a rumor of impropriety. A lot of people on the potential giver and the potential receiver end thought the provision was legally unenforceable—it's just that none of them wanted to go to court to test it. It quietly was knocked out of the contract when it was renegotiated this year, and the plan was to take similar clauses out of the contracts of other lottery vendors. No more: It's been added back to the Gtech contract, and will stay in others as they come up for renewal.

99 Bottles of Beer on the Wall

Texas has 1.04 million college students, according to the Texas Higher Education Coordinating Board. That record—the first time the state has topped the million-student mark—includes state colleges, private colleges and community colleges. In order of size: community colleges have 469,872 students; state universities have 431,684 students, and private universities in Texas have total enrollment of 110,748. All three types of schools grew; community colleges grew faster than the others, increasing enrollment 7.1 percent over the previous year.

Not Friendly Enough

One of the state's biggest business organizations contends the Texas Legislature isn't nearly as pro-business as it ought to be. The Texas Association of Business and Chambers of Commerce assembled a report card on Texas lawmakers that gave grades of D and F to 80 members of the 150-member House and to 15 members of the 31-member Senate. In the House, 43 members got A's on the report and in the Senate, 6 got the highest grade.

What's different about the ratings is the group's purpose. They want to make sure lawmakers know what the group wants, that they'll be watching how people vote, and that the grades will probably have something to do (they're careful about the phrasing of this) with how the group doles out money to candidates. You're not supposed to tie contributions to particular votes, so they put it this way: The ratings are there to give the group an idea of who's with them and who's against them. They'll base support on that.

The ratings are based on 16 votes in the Senate and 22 votes in the House. The trade group says it picked votes where TABCC's official position was known and where there was a record vote taken. The full report, with explanations, vote tallies by each legislator and descriptions of the bills involved, is available on the group's website, at tabcc.org.

Endorsements, Money and Other Political Folderol

• Attorney General John Cornyn sent out a letter asking recipients to come to a fundraiser at the home of Donna and Steve Hicks of Austin and suggesting amounts that could be contributed to his campaign for the U.S. Senate. Five levels of support were listed, and only one—the "Guest" level, at $500 per person—is legal. The others ranged from $2,000 (Sponsor) to $25,000 (Underwriter). That works in state races, if you're lucky enough to raise money in chunks that large. But in federal races, the limit is $1,000 per person per election. A couple can contribute $2,000 for the primary and $2,000 for the general election, and that's it. Political Action Committees can give up to $5,000. The next page of the invitation mentions the limits and the federal laws that apply.

When they caught the goof, Cornyn's aides sent out "reminder" notices about the event, with the same levels of contribution listed. But they were different: Underwriters, for instance, are now defined as people who give the maximum $1,000 and help raise another $24,000.

• The latest fundraising effort from Gov. Rick Perry is on his wife's stationery. Anita Perry writes about his military service ("flying military troops and equipment in the Middle East, South America and Europe"). She writes about the strength of the American people in the wake of the September 11 attacks and then about how hard the governor's race will be. She writes about her husband's record in office. And that's followed by a page of coupons asking donors to give $50 a month for three months. Each coupon has a due date on it, for mid-October, mid-November, and mid-December. And there's a small spot to check, allowing the Perry campaign to hit the donor's credit card each month for the amount allowed by the donor. The donor also fills in the number of months they'll contribute.

• The Texas Oil & Gas Association endorsed Greg Abbott in the Attorney General's race, but didn't follow, at least not yet, with money. Abbott hired Olsen, Delisi & Shuvalov to handle direct mail for the campaign, replacing Dallas-based Allyn & Co. The Dallas firm had that contract when Abbott was running for lieutenant governor. Switching to the AG's race meant redoing contracts, and Allyn & Co.'s gig will end this month.

• Republican General Land Office candidate Jerry Patterson is holding a fundraiser in Houston that's attracted big names. The co-chairs are Ned Holmes and Ken Lay, and the host committee includes 15 House members and six state senators. Patterson, a former senator, faces Rep. Kenn George of Dallas in the GOP primary for that job.

Short, Pricey and Uncertain

It's a special election for everyone from all parties, but Craig Estes is treating the race for Senate in Wichita Falls like a GOP primary. Estes put out a memo to "interested parties" saying he's raised $176,830 and spent $184,012—far more than his closest Republican opponents, Kirk Wilson and Harry Reynolds. Wilson, a former Denton County Judge, raised $77,284 and spent $68,588, according to the memo. Reynolds, the former mayor of Sherman, brought in $11,873, loaned his campaign $170,000, and spent $39,150. That's serious money for a quick race, especially since it's only for a stub term in a Senate district that is being redrawn in the courts even while the race is on. The winner won't have any idea for weeks what sort of district he'll (they're all men) be running to represent at this time next year, except that it will probably include Wichita Falls.

Estes is the only one running television ads, which might explain the heavy spending. And he's pulled in some new endorsements, including Texans for Lawsuit Reform, Texas Association of Business and Chambers of Commerce, Texas Association of Realtors and NFIB. We told you about the endorsement from Pat Haywood, widow of the late Sen. Tom Haywood; she's doing a television spot for Estes. Only one Democrat, Greg Underwood, got in the race. Conventional wisdom is that Estes and the other three Republicans will split the GOP vote and that the leader among them will meet Underwood in a runoff. The Estes gang is hoping to avoid a runoff altogether—tough to do in a six-person race—or to get a Republican in the runoff instead of Underwood, who ran against Haywood in 1998 and has some residual name ID.

A Victory for Anonymous Polemicists

State election law can't always require people to put a name and address on political fliers blasting or praising candidates, according to the state's 5th Court of Appeals in Dallas. Somebody—identified in the case as John Doe—produced a flier calling a city council candidate a liar. Doe didn't put his name on the flier and got indicted for that failure. The appellate judges agreed with a lower court which said the bust violated constitutional speech protections. The ruling says campaign finance laws already cover expenditures made in concert with a campaign. That means, presumably, that the genesis of a campaign-directed flier would have to be disclosed by the campaign. The ruling says the state already has laws on libel and slander that protect candidates, under tort laws, against false statements and such. And it's illegal under another section of the state's election law to mislead readers of a political ad into thinking it came from something other than its real source. The court concluded that the state's disclosure requirement is too broadly written and unconstitutionally limits free speech. Bottom line: As long as the campaign isn't involved, people sending out information about candidates don't have to identify themselves. That could make for some interesting mail in the next election cycle.

Political People and Their Moves

Gov. Rick Perry named Kathleen Hartnett-White to the Texas Natural Resource Conservation Commission, replacing John Baker, whose term was up. White lives in Valentine, where her husband's family has been ranching for more than a century. She's written extensively about private property rights and other issues, and used to work for the Texas Cattlemen's Association. Until this appointment, she was serving on the Texas Water Development Board... Chief Justice Marilyn Aboussie of the state's 3rd Court of Criminal Appeals in Austin says she'll retire instead of running for reelection next year. She'll have been a judge for 20 years. Likewise, Don Wittig is leaving the 14th Court of Appeals in Houston. He's been on that court since 1998 and was a state district judge (and attorney general candidate in 1994) before then... Austin-based Public Strategies Inc. is adding advisory directors: former U.S. Secretary of Labor Ann McLaughlin Korologos, former Mexican Finance Minister José Angel Gurría, and Lyndon Olson, the former U.S. Ambassador to Sweden. Korologos served in the Reagan Administration, Olson in the Clinton Administration.

Political People and Their Moves

Former Rep. Ashley Smith, R-Houston, is the latest addition to the Org Chart in the governor's office. Gov. Rick Perry, who worked with Smith in the House, named the former legislator a senior advisor to his administration. In English, that means he'll help with appointments, corporate and legislative "outreach, economic development and jobs." Smith, who's been active in the tort reform movement, will resign as chairman of the Southeast Texas Biotechnology Park, but will stay on as CEO of TIRR Systems. That's the parent company for three not-for-profit health care concerns. Perry aides say Smith's government post is a part-time deal, and say he won't be involved in any health care issues... Put Mickey Moore, who has been at the Texas Retailers Association for 35 years, into the 'retired' column. Chuck Courtney, his number two, is taking over as president, and Karen Kenney Reagan will move up to chief lobbyist for the group... Stuart DeVeaux has worked at the Christian Coalition, the Republican National Committee and the California Republican Party; now he's in Texas to run the reelection campaign of Railroad Commissioner Michael Williams.

Appointments: President George W. Bush named Dale Klein as assistant secretary of defense for nuclear, chemical, and biological defense programs. Klein is an engineer and vice chancellor at the University of Texas at Austin... Bush appointed William Schubert, a Pinehurst businessman, as Administrator of the Maritime Administration at the Department of Transportation. Shubert worked in that agency for ten years before moving to his current job... John Brown III, a special agent in the Drug Enforcement Administration's Dallas office, is Bush's pick for deputy administrator of the DEA. He's been with that agency, and its predecessor agencies, since 1972... Bush finally announced the appointment of Judge Phillip Martinez of El Paso to the federal bench. Sens. Kay Bailey Hutchison and Phil Gramm recommended Martinez several months ago for a court opening in El Paso... House Speaker Pete Laney named three people to the newly created Office of Rural Community Affairs. Joining the people already named by the Guv and the Lite Guv: Bill Jeter III of Bryan, a CPA who served on the Sunset Advisory Commission; Jim Roberts of Lubbock, an electric coop exec who was last year's president of the Texas Electric Cooperatives Association; and Kent Sharp, an economic development official from Big Spring.

Quotes of the Week

Former House Speaker Newt Gingrich, R-Georgia, in a Washington Post story on changing political winds: "The president has become both more powerful and less partisan, which is probably good for his reelection and probably not for the Republican Party. His natural instinct will be to do everything possible to be leading the entire country, which is very different from Reagan, who was very clearly the leader of the conservative wing of America."

Chief Justice Tom Phillips of the Texas Supreme Court, letting Texas Lawyer know what he thinks about a report from Texans for Public Justice that concludes there is a correlation between contributions to the court and success before the court: "To call it junk science would be an insult to real junk science. It just doesn't show anything."

Attorney Cris Feldman, who compiled the TPJ report: "To me, it seems that every litigant before the Texas Supreme Court is the next contestant for 'The Price Is Right.'"

Ron Sasse, director of "residence life" at Texas A&M, telling the Dallas Morning News why the university (temporarily, as it turned out) barred students from hanging U.S. flags outside their dorm windows. "We don't want people crawling out the windows to hang out a flag and then fall. You don't limit free speech, but you have to have control over where and when those expressions could occur."

Salvador Johnson, a "peyotero" quoted in the San Antonio Express-News on the pending federal case against James Mooney, a native American on trial in Utah for distributing peyote without a license as part of his religious practice: "I've seen Mooney help a lot of people—people with drug addictions, alcohol problems. But it gets controversial when you start giving peyote to white people."

Texas Weekly: Volume 18, Issue 17, 22 October 2001. Ross Ramsey, Editor. George Phenix, Publisher. Copyright 2001 by Printing Production Systems, Inc. All Rights Reserved. Reproduction in whole or in part without written permission from the publisher is prohibited. One-year online subscription: $250. For information about your subscription, call (800) 611-4980 or email biz@texasweekly.com. For news, email ramsey@texasweekly.com, or call (512) 288-6598.