No Exit

Tom DeLay can't get off the ballot.

He quit Congress last month and declared himself a resident of Virginia to disqualify himself as a candidate. But Texas Democrats sued, saying the GOP can't replace him on the ballot with someone they appoint. U.S. District Judge Sam Sparks, after thinking it over for a week, ruled with the Democrats.

"Tom DeLay is not ineligible to be the Republican Party nominee for the United States House of Representatives from Texas District 22...," he ruled. DeLay can still withdraw his name from the ballot, but not in a way that allows the GOP to replace him.

The Constitution says members of the House have to be inhabitants of the states they represent, but it says they have to be an inhabitant on the day they're elected. Since Election Day isn't here yet, Democrats argued, DeLay isn't yet disqualified. Sparks agreed: "There is no evidence that DeLay will still be living in Virginia tomorrow, let alone on November 7, 2006, the only day that matters under the Qualifications Clause of the United States Constitution."

There's a state law that requires candidates for the Legislature to be residents of their districts for a year before their elections, but it doesn't apply to federal office-seekers, Sparks wrote. The GOP, in this case, doesn't have the power to declare DeLay ineligible.

"Were the Court to adopt Defendant's position, either political party could and would be able to change candidates after the primary election and before the general election simply by an administrative declaration of ineligibility by the party chair based on a candidate's 'move' to another state," he wrote. "This would be a serious abuse of the election system and a fraud on the voters, which the Court will not condone."

Texas Democrats had argued that DeLay got out of the way because he feared losing the seat and becoming a lightning rod for this year's elections. That's good politics, maybe, but they said the law doesn't allow parties to manipulate their tickets that way. DeLay can pull out, but the law doesn't allow his party to replace him with someone else.

The Texas GOP will appeal to the 5th Circuit, Chairwoman Tina Benkiser said in a written statement. Benkiser, an attorney, said the decision "effectively throws the federal election process into total chaos, and we will appeal this decision in order to protect the voters of Texas and their right to vote for a nominee of their choice."

DeLay won the GOP primary in March, and his replacement, if there is one, won't be chosen by voters. Instead, Republicans from the four counties that have a piece of the district — Brazoria, Fort Bend, Galveston, and Harris — would appoint someone to put on the ballot. One precinct judge from each of the four counties (chosen, in turn, by the other precinct chairs in their county) would vote on a replacement candidate if DeLay came off the ballot. And a number of candidates were actively lobbying for that appointment.

Sugar Land Mayor David Wallace — one of a herd of Republicans vying for DeLay's spot on the ballot — said he's proceeding on the assumption that the courts will take DeLay off the ballot and that Wallace will have an advantage over other contestants financially. Others seeking the seat include attorney Tom Campbell (who lost to DeLay in the primary), state Reps. Charlie Howard, R-Sugar Land, and Robert Talton, R-Pasadena, Houston City Council member Shelley Sekula-Gibbs, and state Sen. Mike Jackson, R-La Porte.

Sparks' ruling, unless it's overturned, ends those campaigns for now.

Barring a successful appeal of Sparks' ruling, Democrat Nick Lampson, a former congressman from Beaumont, will face DeLay in November for a full term in the U.S. House. (And while this is being argued, he's the only candidate with the time to make his case to the voters and to financial supporters.) In any case, Gov. Rick Perry will call a special election to fill what's left of DeLay's current term; that'll likely be held in November, with the winner serving until January.

Benkiser and other Republicans contend that if DeLay's on the ballot, DeLay will win the election in what they insist is a prohibitively conservative district.

That raises (at least one) purely speculative question. If DeLay were to remain on the ballot and win in November, would he return to Congress or refuse to take office? The latter would set up another special election open to anybody who wants to run (with and without party support). DeLay could easily avoid that fight by simply failing to file for office.

And another (this one posited by James Bopp Jr., the Terre Haute, Indiana lawyer for the Texas GOP): If DeLay is eligible today for the ballot, but isn't eligible to serve (since he's arguably a resident of Virginia), could he win the election and then be barred from taking his place in Congress? In Bopp's view, that's a hole card for the Democrats if Sparks' ruling holds and if Lampson loses to DeLay in November. And it's part of what's wrong with the ruling, he says, because it "denies voter choice to require an ineligible candidate to remain on the ballot." That scenario, too, could produce a special election.

The state GOP hasn't yet presented a certified copy of its ballot and candidates to the Texas Secretary of State; there's a good chance they'll know DeLay's status — and who's gonna be on the ballot — by the time that's due. And in answer to a reader question: Sparks was appointed in 1991 by President George H. W. Bush. You can get a copy of Sparks' ruling from the Files section of our website.

Up Early

Democrat Nick Lampson has started running commercials, taking advantage of a court battle over who he'll face on the November ballot in CD-22.

While the courts and the Republicans are deciding who'll be on the other side of the ballot, Lampson's running two ads. One is biographical, about his family ties to the district (he represented Beaumont when he was in Congress). The other's a spot about cutting the budget and features "voters" hollering instructions to Congress about fiscal responsibility — into a bullhorn. Both spots are viewable on his website.

The campaign says the ads are running on cable television in the district and say they plan to remain on the air "indefinitely." Campaign manager Mike Malaise says the unusual timing — it's downright weird to run political ads in mid-summer in Texas — is an attempt to give voters a look at Lampson before the airwaves are crowded with political commercials. 

Luna Resigns

Rep. Vilma Luna, D-Corpus Christi, is resigning from the Texas House, where she's among the most powerful Democrats in a Republican administration.

Luna, elected in 1992, is vice chairman of the budget-writing Appropriations Committee and is a member of the Calendars panel that sets the House's legislative agenda and the Ways & Means Committee that writes tax bills.

She's one of a handful of Democrats who were early and strong supporters of House Speaker Tom Craddick, who rode a Republican wave in 2002 to become the first Republican speaker since Reconstruction. And she's one of a few Democrats who've got real clout in his administration. If you're inclined to keep score on the next speaker's race, her resignation at least temporarily takes a vote out of Craddick's column; where it lands will be up to her replacement.

Luna's an attorney with the Watts Law Firm in Corpus Christi. She held a local press conference to announce she'll resign at the end of this month. She said she's got no immediate plans but wants to "have more flexibility" in her personal life and said she's looking at opportunities in the private sector. Her resignation immediately triggered rumors that she'll join an Austin lobbying firm; she neither confirmed nor denied that.

The first name out there in the replacement sweepstakes is Solomon Ortiz Jr., son of the local congressman and the current head of the Nueces County Democratic Party. He said in an email to supporters that he'll "be aggressively seeking the Democratic nomination." Next came an announcement from Danny Noyola Sr., a former school principal. He's in. Two Republicans have expressed interest: former Nueces County Commissioner Joe McComb, who previously lost a race to Luna, and Corpus Christi City Councilman Rex Kinnison. Luna doesn't plan to endorse anyone, and predicted a strong field of candidates.

She said her resignation gives both parties time to nominate ballot replacements. She was alone on the November ballot, but the opening apparently puts the GOP back in the game, allowing them to name a candidate for November even though no one ran for the HD-33 post in their primary.

Name Dropper

Kinky Friedman's lawyer wants the Texas Secretary of State to take another look at what the election code says about the names of candidates. The way they read it, their man ought to be able to get on the ballot without having Richard or the initial R. as a prefix to the moniker by which he's known.

Richard's the name his parents gave him, but he's been known as Kinky, his lawyer says, when he was a freshman at the University of Texas in 1962. Attorney Blake Rocap's argument is that the statute allows the candidate to use a bona fide nickname, and he says his client's got one:

"... It is not a name that people occasionally call him; it is not a name that only a few know him by; it is not a name that is only mentioned in concert with his first name to differentiate him from other Richard Friedmans. He signs his name Kinky Friedman, he introduces himself not as 'Richard Friedman, but people call me Kinky,' but as simply 'Kinky.' He has recorded and released ten albums, published twenty-six books, and countless articles have been written about Kinky Friedman or published under the byline Kinky Friedman..."

He closes by saying they want the name straight — Kinky Friedman — without any other attachments.

Secretary of State Roger Williams will decide any day now how to put Friedman's name on the ballot. And also, whether any of the gubernatorial candidates will be I.D.-ed as "Grandma." Carole Keeton Strayhorn'sattorney sent a letter in last week.

And there's a bit of election statute being peddled to the press that seems to say Williams missed his chance to rule on the names. It says the SOS has just five days to review applications from candidates before telling them they've got something that needs review. The names on the ballots weren't flagged that early. Williams' aides say the same law exempts all the materials that come in with petitions. Both independents handed in petitions to get on the ballot. Strayhorn partisans say the five-day rule applies even when petitions are included. Williams says no.

In-House or Out?

Sometimes the cleanest way to settle a disagreement is to go ahead and fight. It looks like the bickering over whether the state should hire Washington, D.C., lobbyists with taxpayer money will go to the Legislature.

The Sunset Advisory Commission's staff wants to make the state's Office of State Federal Relations a division of the governor's office and to make it clear that the state can contract with Washington lobbyists.

That recommendation will go to the full commission and then to the Legislature for consideration during next year's regular session. That'll put the argument squarely before the House and the Senate and could prove an interesting counterpoint to state efforts to stop local governments and school districts from using their tax dollars to lobby Austin.

In their report (found here on their website), the Sunset staff made a point of saying they "chose not to make a judgment about the appropriateness of the state's use of federal consultants," but wanted to put contracting rules in place if the state keeps hiring them.

They also said OSFR should report to the governor instead of reporting to both the Guv and the Legislature.

They pointed out that the state's four largest cities, its two biggest counties and a mess of other local government agencies hire Washington lobbyists, and also found that Texas is the only state that has a separate state agency to deal with the feds. Most states have made that a function of their governors' offices.

The report produced jabs from Comptroller Carole Keeton Strayhorn, who's running against Gov. Rick Perry, and from Rep. Jim Dunnam of Waco, who heads the House's Democratic Caucus. Strayhorn said that, if elected, she wouldn't hired outside lawyers: "We have 32 seats in the U.S. House of Representatives, two members in the U.S. Senate, and one President of the United States looking out for Texas in Washington, D.C." As comptroller, she's been withholding payments to two firms hired to lobby for the state. Dunnam has tried before to get the state to fire its hired guns in D.C., and called on Sunset commissioners to overrule the staff report.

Perry's aides have defended the lobby spending, saying the contracts have paid for themselves in higher revenue from the federal government.

Political Briefs

• David Wallace, the Sugar Land mayor and would-be replacement for Republican Tom DeLay on the CD-22 ballot, says he won a straw poll of precinct chairs in Fort Bend County. He takes that as an indication that the Republicans in his home county would back him if DeLay's name comes off the ballot. Wallace got 46 percent of the ballots; his nearest competitor, he says, got 30 percent. The tally isn't binding.

• The order for state agencies to cut ten percent from their current budgets when they put together their proposals for next year has made its way into Lt. Gov. David Dewhurst's campaign materials. In an email to supporters, Dewhurst says a similar program before the 2003 legislative session led to "approximately $1 billion in savings to the taxpayers of Texas." The email, sent over Dewhurst's signature, says Texas has fewer state employees than when he took office and fewer state agencies. Both are references to the 2003 consolidation of the state's health and human services agencies. And he says all that happened without increasing taxes (the special session, he writes, resulted in "the largest tax cut in our state's history"). Dewhurst also says the growth in the state's general revenue has been lower than the rate of inflation over the last six years.

• Clark, Thomas & Winters opened a Rio Grande Valley office to be headed by Eddie Lucio III, D-Brownsville, son of the state senator and a probable member of the next class in the Texas House. Lucio III won a Democratic primary for Harlingen Rep. Jim Solis' seat in the House and faces a Libertarian in November. The Austin-based law firm also has offices in San Antonio.

Political People and Their Moves

Rosa Rosales of San Antonio is the new president of the League of United Latin American Citizens, succeeding Hector Flores of Dallas. She was the group's Texas director during the early 1990s, and the national vice president for the last four years.

Hector Gutierrez picked up stakes and moved back to El Paso, where he's now executive vice president of external affairs with El Paso Electric. Gutierrez had been with Hillco Partners, a lobbying outfit, and before that worked for Rick Perry. Gutierrez will oversee the company's lobby and media operations in Texas, New Mexico, and Arizona.

Victoria Ford — Gov. Rick Perry's deputy director for legislative affairs — is quitting government after 14 years to join the lobby shop at Hughes & Luce. Ford was previously a health policy wonk for Perry, and before that, worked in both the House and the Senate for Democrats Leticia Van de Putte and Frank Madla, both of San Antonio. She'll join the law firm in September.

Press Corps Moves: Lee McGuire is leaving KVUE-TV in Austin, where he regularly covered legislative and state news, for its sister station in Houston, KHOU-TV. He'll still do some politics, but he'll trade the Lege for hurricanes.

This isn't a move so much as a new gear: Texas Monthly writer-editor-pundit Paul Burka has started a blog, which you'll find at www.burkablog.com. That'll give him a spot for the stuff he can't get into the magazine, like his obsession with baseball.

Gov. Rick Perry appointed five folks to the Parental Advisory Council that's appended to the Department of Family Protective Services to counsel on policies involving parents, abuse and neglect and other issues. They are John Castle Jr. of Dallas, an attorney and retired exec with EDS; Lois Gamble, a child care consultant; Tim Lambert, who heads the Texas Home School Coalition (and used to be a national GOP committeeman from Texas); Herschel Smith Sr. of Houston, a pastor and the founder and director of the Fellowship Home for the Homeless; and Francisco Zarate of Rio Grande City, director of the Community Action Council of South Texas.

Department of Corrections: Tom Stephens was director of governmental affairs at Atmos Energy, as we said, but he wasn't lobbying. He did, however, manage that firm's hired lobbyists. Sorry, sorry, sorry.

Deaths: Former Enron chief and political financier Ken Lay, who was awaiting prison time on convictions stemming from his contributions to the collapse of that company, apparently of heart failure. He was 64... Beatrice "Bea" Kastenbaum Mann, who owned and ran Gem Jewelers down the street from the Capitol, a source for award, friendship, consolation, and fence-mending gifts for hundreds of political people over the last 55 years. The store closed in April. She was 80.

Quotes of the Week

Federal Judge Sam Sparks of Austin, in his ruling keeping Republican Tom DeLay on the ballot in CD-22: "Political acumen, strategy, and manufactured evidence, even combined with a sound policy in mind, cannot override the Constitution."

Gubernatorial candidate Chris Bell, in the Fort Worth Star-Telegram: "A lot of people don't want their neighbors to know they're Democrats because they think it might hurt their business or hurt them socially. But you've got to give people a reason to get involved. People are upset, and they want to see change."

Gubernatorial candidate Kinky Friedman, at the Texas Classroom Teachers Association convention, about old promises that the lottery would pay for education: "That's why I have my little riddle: What has six balls and screws Texas? The Texas Lottery." 

Gubernatorial candidate Carole Keeton Strayhorn, who as comptroller proposed a pilot program for school vouchers, to those same teachers: "Vouchers are off the table and not only for now, but during all Strayhorn Administrations."

Bell, in the San Antonio Express-News, on appearing at forums with Friedman and Strayhorn: "Each time, I kind of felt like I'd run away and joined the circus."

U.S. Rep. Tom Davis, R-Virginia, quoted in The Dallas Morning News on proposals to limit the kind of mid-decade redistricting that was done in Texas: "Voters want to have a relationship with their members of Congress. That cannot happen if districts are just amalgamations of political groups, and it cannot happen if the districts change every few years."

Sen. Jeff Wentworth, R-San Antonio, in a San Antonio Express-News story on using slot machines to help pay for state services: "It's just human nature. We all want everything. We don't want to pay for it. VLTs are a voluntary deal. Nobody's making you go to the track."

Rep. Kevin Bailey, D-Houston, quoted in the San Antonio Express-News on banning candidates taking money from people with business before them: "It's a hard one because practically every contribution any of us gets comes from people who have business with us."

Texas Weekly: Volume 23, Issue 5, 10 July 2006. Ross Ramsey, Editor. Copyright 2006 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 (512) 302-5703 or email biz@texasweekly.com. For news, email ramsey@texasweekly.com, or call (512) 288-6598.