Did Anybody Bring Their "A" Game?

Gov. Rick Perry's agenda was DOA this session, caught in the swivet over HPV vaccines.

Lt. Gov. David Dewhurst killed one of his own pet bills with mismanaged floor action and a spectacularly stupid press release, temporarily uniting the Senate — against him.

And House Speaker Tom Craddick faces the very real possibility of a House vote on whether he should keep his job.

In a session without a particular dominant issue like school finance or tort reform or budget shortfalls, the abilities of the three guys who run the place have come into focus. Governors actually enjoy their peak powers in the weeks that follow a legislative session — that's veto season. So Perry's got to be looking forward to the departure of this bunch. For Dewhurst and Craddick, the 80th legislative session can't end soon enough.

Perry's travails started in January when his executive order mandating HPV shots for girls going into the sixth grade backfired. The Lege killed that idea and pushed Perry back on his highway program. But he's recovering a bit — vetoes, don't ya know — and should get the highway bill he wants. But he'll have a mixed record on the things he said he wanted at the outset.

Dewhurst, who's all but announced his desire to run for governor in 2010, got a child predator bill he wanted. But he (with help from GOP senators) fumbled the voter ID bill demanded by Republican activists and nearly frittered away his control over the Senate in the process.

But the drama in the Senate has nothing on the House.

Craddick started the session with his Appropriations Committee chairman and several other tenured Republicans challenging him. On the procedural vote that best measures his strength, he won reelection by just seven votes. Now that the session is coming to a close, there's open talk of challenging him again with a legislative trick that hasn't been pulled in Texas since 1871. And his Ways & Means chairman has already declared he'll challenge Craddick for his spot.

Random Lore: The House's tax-writing committee has been the source of challengers for a few years now. Ways & Means Chairman James Hury, D-Galveston, was an early entrant into the race to replace Speaker Gib Lewis, D-Fort Worth. Tom Craddick, R-Midland, named to head that committee by Speaker Pete Laney, D-Hale Center, overthrew his one-time benefactor in 2003. And Jim Keffer, picked to run Ways & Means by Craddick, is now the only open challenger to the guy who boosted him.

War Gaming the Race for Speaker

It's easy in the middle of a leadership race to get so caught up in the ripples that you miss the waves and the tides. So we'll start with the ripples and swim out from there...

Rep. Jim Keffer, R-Eastland, jumped into the race, issuing a press release and announcing to the GOP Caucus a short time later that he's a candidate for speaker and that he thinks no speaker should serve more than three terms. (It's Tom Craddick's third term, see, though his predecessors served four, five, and five terms, respectively.)

Keffer told the Republicans (this is second-hand, based on conversations with members who attended that members-only meeting) that another state rep had called Granbury Mayor David Southern on Craddick's behalf, urging Southern to challenge Keffer in the next elections and offering to fully fund his candidacy. Southern's not playing, but the bid raised Keffer's hackles. That, along with talk of an imminent challenge to Craddick, prompted him to jump into a contest he's apparently been mulling for some time.

Craddick told the members he had nothing to do with the call to Southern and said he doesn't encourage challengers to incumbent Republicans.

Craddick was asked during the caucus meeting whether he'll run for a fourth term in January 2009. He said he wasn't sure, and repeated that line in comments to reporters after the meeting. That ballooned over the next few hours until he issued this statement: "I have talked to Nadine and I fully intend to run for Speaker. The paperwork was already filed last February."

One more thing Keffer said: He doesn't think the House should try to knock Craddick off the dais while there's business to do in the regular session. There's some ambiguity here. He said in his press release that he's running for Speaker of the 81st Legislature — that's the one that convenes in early 2009. But he also said this: "During the past few days, a majority of the members of the Texas House have agreed that we need a new Speaker and most have stated that they would prefer the selection of a new Speaker upon adjournment of the Regular Session rather than by placing a call on the Speaker during the session."

We read that to mean he's not against a challenge nearer to the end of the regular session on May 28; others read it to mean he's not expecting an election until 2009.

Our reading makes more sense to us (that's why it's our reading...): Why tell Craddick 20 months in advance that you're planning to run against him? He's already allegedly trying to get Keffer a primary election opponent, and that alone could keep Keffer too busy to run a credible race for speaker between now and then. And why allow Craddick to gather strength after the session? If Keffer (or others) think he's weak enough to overthrow, you'd think they would move before he gets better, no? Running now would amount to a bet that Craddick's at a low spot and that the winner now gets to run as the incumbent in a year-and-a-half.

There's still considerable risk going into the 2009 session for someone who displaces Craddick now. It's easier to consolidate power during a legislative session, when you're naming committees and controlling the flow of legislation and all that speaker stuff. To gain strength between sessions, a candidate has to amass enough resources to help other reps win their elections. That's expensive and it's hard to get organized and pull together the kinds of results that win friends and influence. It took Craddick several election cycles to build the majority that elected him; Keffer's new at that. (Craddick, whatever you think of him, is good at raising money for elections.)

And there's no absence of ambition in the House: A speaker who wins at the end of this session might not look so formidable to challengers when that next regular session starts. Look at what that interim speaker has to do: To depose Craddick will take the votes of most of the Democrats and some of the Republicans in the House, and it's inconceivable that this bunch would elect a Democrat. Craddick will hold a mess of Republicans even in weakened condition. Republican primary voters will view the challenger — a fellow Republican — with suspicion, so he or she will have to appease them. But the interim speaker will also have to cover the Democrats who helped beat Craddick.

A fresh Republican candidate who emerges after the 2008 general election won't have those obligations and might have an advantage over a Craddick killer who serves between now and then. It could follow the adage that the second mouse is the one who gets the cheese. (There's a small contingent out there that thinks the Democrats have a chance at taking the House in 2008; that changes the math considerably and would doom a Republican incumbent.)

Play the other hand — that Craddick gets out of the legislative session with no challenge. The balance in his campaign account at the beginning of the year was $4,181,655.96, and he's the sitting speaker. He can mount an offensive in the next election cycle — against Keffer and anyone else he finds threatening — and keep at least some of the lobby from jumping to new candidates and creating new allegiances. That's the best scenario for the incumbent. He's good in a fight — that showed in his years-long effort to overthrow Pete Laney, and it showed again in his battle for a third term earlier this year. He's weakened, but he's still got the corner office and he's still the favorite of the folks outside — the ones whose money finances elections.

Vacating the Chair: The Rules

You won't find anything on "motions to vacate the chair" in the official rulebook of the Texas House, and it's difficult to find times when — no matter how mad folks get — it's been used.

A move to knock off the speaker could take either the form of a House Resolution or a Motion to Vacate. The latter isn't in the rules, but according to Rep. Will Hartnett, R-Dallas, it can be found in other tomes on parliamentary procedure. A simple majority would control the outcome, and the speaker — Tom Craddick in this case — would hand the gavel over to someone else for the proceedings. (The someone else could be the Speaker Pro Tempore, Sylvester Turner, D-Houston, or the House's Chief Clerk, Robert Haney.)

Hartnett did some research on the topic for the benefit of Craddick and the House Republican Caucus and came up with one particularly interesting tidbit. He contends the Speaker would have to honor the motion, but wouldn't have to honor it right away. He could delay it by, say, 24 hours, "out of fairness to the members." Hartnett told us later that the alternative would be to put a call on the House to make sure everyone's there for the vote. A day's notice, or a few hours notice, would give members time to prepare. He didn't say this, but we will: It would also take away the element of surprise and give the incumbent time to gather his forces.

If the House voted to vacate the chair, the floor contest for a new speaker would commence immediately. They'd enter the room with one speaker and leave with another.

Vacating the chair would apparently vacate the speaker pro tempore's post, but wouldn't change the House's standing committees. Speakers used to have the power to fire their chairmen and reassign committee members, but that went out with rule reforms in 1993. Under the current rules, committee assignments last for two years, regardless of what happens to the speaker.

A Craddick replacement would have Craddick's committee layout unless the chairs and members resign their committees or the House passed a separate resolution clearing the decks to let the new speaker reassign committees. If the current committees remained in place, a new speaker would have a workaround; the rules allow speakers to name select committees on particular subjects and it would be possible to give the interim assignments and other duties to select committees instead of to the panels Craddick created early in the session.

Long story short: Voting down a speaker doesn't require members to fire current committee chairs, and it doesn't guarantee any spoils for the new speaker's supporters. Another way to look at it: The new speaker would have to go through the often painful process of saying which of the House's 150 members are the favorites. The initial lack of power could be a boon in that sense.

The motion to vacate has apparently been used only once in Texas, in 1871, when Reconstruction Speaker Ira Hobart Evans, a 25-year-old in his first term in the House, sided with House Democrats against a bill that would have delayed the next elections by a year. A Republican Party caucus denounced him (and the few Republicans who voted with him) and voted to remove him from the office of speaker. We got the scoop on Mr. Evans from the online Handbook of Texas.

Fumble!

Lt. Gov. David Dewhurst and the Republicans in the Senate launched a sneak attack that would have worked, probably, if they'd all been in the room. But Sen. Glenn Hegar, R-Katy, wasn't there when Dewhurst tried to bring up a voter ID bill. Now the bill's probably cooked, and Dewhurst nearly got baked, himself, for the way he handled things.

Republicans want the legislation. Democrats don't. The Republicans have the votes to bring it up for consideration — two-thirds of the Senate must agree — only if a Democrat is missing.

So they waited for a day when one of the donkeys was sick. Sen. Carlos Uresti, D-San Antonio, was out with the flu. But one of the elephants forgot to tell everybody on his side to be there. When Dewhurst called it up, Hegar was missing. For a moment, it didn't matter, because the vote count didn't include Sen. John Whitmire, D-Houston. That first 19-9 vote was enough to get the bill going, and Dewhurst gaveled it in.

But Whitmire pitched a fit, and other senators asked for a vote verification, and Dewhurst backed down. When the recount was underway, Uresti walked in, and Hegar walked in, and the vote changed to 20-11 — not enough to bring up the bill.

Nothing else happened all day. Senators disappeared into a series of caucuses — partisan and bipartisan, depending on the time — to figure out what to do. Dewhurst appeared to blow his stack, sending an intemperate email "letter" to reporters blasting the Democrats in general for "an outrage against all Americans" and Whitmire in particular for "trying to make himself a victim."

Democrats who'd been trying to convince Republicans to continue to honor the two-thirds rule had all the fuel they needed. Within a few hours, Dewhurst had disowned and replaced the letter (see the next item), senators had considered slapping him with a vote of no confidence, and the voter ID bill had become, probably, another victim of a very weird legislative session.

Sen. Dan Patrick, R-Houston, blamed the Senate's two-thirds rule for the voter ID gridlock and he resorted to comic book language to make his point in an email to supporters: "I am not aware of any other deliberative body that requires a super-duper majority to debate legislation." He directed those supporters to the Senate's video on the subject. The fun starts at the 4:08 mark.

Editing, Politically

If you mark up David Dewhurst's Voter ID statement the way they mark up bills, striking out what he deleted from the first version sent to the press and underlining what he added in his second version, also sent to reporters, you get what follows. The second letter was accompanied by a note from Dewhurst saying he hadn't reviewed the first one before it went out and that the paragraph on Whitmire was "over the top." Here's how he changed it:

---

A Letter From Lt. Governor David Dewhurst on Voter I.D. Bill

Yesterday Republican Senator Troy Fraser brought up in the Senate for consideration House Bill 218 by Representative Betty Brown, which simply requires voters to present a driver's license or some other common form of identification at the election polls to prove they are who they say they are [: U.S. citizens].

Inexplicably, this legislation has drawn sharp criticism from Democrat Party operatives [and affiliated groups. Yesterday all 11 Democrat members of the Texas Senate voted against the bill and blocked it from going forward. I think this is an outrage against all Americans. W], and the Democrats in the Senate blocked the bill from going forward yesterday. Now, all 11 Democrat Senators are friends of mine and good Americans, but I want people to consider that with eight to 12 million illegal aliens currently living in the U.S., the basic American principle of one person, one vote, is in danger. While critics say the legislation isn't necessary because voter fraud isn't a problem in Texas, the facts tell a different story.

On June 22, 2006, Harris County Tax Assessor-Collector and Voter Registrar Paul Bettencourt testified before the U.S. House Administration Committee that foreign nationals are both applying for and receiving voter registration cards. Data given to my office indicates that in Harris County alone since 1992, 3,742 voters have been removed from the voter rolls because they were not U.S. citizens. From 2003 to 2005 in Bexar County, 303 voters were removed and at least 41 had actually voted before being deleted. Since 1999 in Dallas County, 1,889 voters have been removed and 356 voted before being deleted. During the same period in Tarrant County, 584 were removed. Just last year, El Paso County saw the highest number of non-citizens voting in a state election over a [10 month] one year period [, as 213 ineligible voters were removed from the rolls]. How many more voted but were never caught? One-thousand? Two-thousand? Ten-thousand? [Twenty-five thousand?] How many legitimate American votes were canceled out [by illegal voters]?

To most Americans, requiring voters to show some form of ID at the polls seems like a simple and reasonable solution. It's common sense and the standard in other countries and many U.S. states. Considering that a photo ID is required to buy Sudafed, rent a movie, board an airplane, or rent an apartment, I can't understand why anyone would argue the same standard, if not a higher standard, should apply to voting. [Why would any Texan oppose legislation that ensures only U.S. citizens vote in elections?]

The truth is, most Texans agree. Independent polls, like one recently conducted by Austin-based Baselice & Associates, show Texans overwhelmingly support House Bill 218. The poll found 95% of Republicans, 91% of Independents, and 87% of Democrats believe voters should be required to show a driver's license or other common photo identification before being allowed to vote. This independent poll surveyed 1,001 voters statewide and has a margin of error of plus or minus three percent.

Good friends can disagree on a subject, but [Friends,] you and I know that freedom is not free. [I believe p]Protecting the sanctity of American elections is critical to the future of our nation. [In the Middle East, American men and women are putting their lives at risk every day to protect American freedom, including the right to vote. Americans have fought for centuries and lost their lives for the right to vote in free and fair elections.]

To address critics' concerns about voters who may not have a current ID, House Bill 218 was amended to allow voters to present other forms of identification such as a military ID, valid employee ID, citizenship certificate, passport, student ID card issued by a public college or university, handgun permit, utility bill, bank statement, pay stub, mail from a government entity, marriage license, birth certificate, adoption certificate, pilot's license, hunting license, or even a library card. Bluntly, w[W]hat's so hard about this?

[Seriously, how can any American argue that this requirement is too onerous? I can only conclude that the Senators who voted to block consideration of House Bill 218 did so not because it's good public policy, but because they don't believe in the basic American principle of one person, one vote.]

[On the floor of the Senate yesterday, the longest-serving Democrat Senator ironically gamed the voting process by walking out of the Senate Chamber in an attempt to stall consideration of the Voter ID bill. When he returned to the Senate floor after his name had been called three times and the vote closed, he cursed and tried to make himself a victim. I wonder how the Senator's constituents feel about this deliberate attempt to block legislation that affects every citizen's right to vote.]

As Lieutenant Governor, I have a responsibility to protect and defend our Constitution and the laws of our state and nation. And I'm proud to stand with the vast majority of Texans [and the 20 Republican members of the Texas Senate] who strongly support preserving the right of Americans who reside in Texas to vote in Texas elections.

---

Playing Chicken

If all goes as planned, Gov. Rick Perry will sign some highway legislation, veto some highway legislation and avert both a special session and a legislative effort to slow the state's road building.

We're upon the deadline for the deal that was in the works last week: Perry will sign SB 792 and veto HB 1892 after threatening to call lawmakers back for a special session this summer if they didn't produce a bill he likes.

Official House deadlines aren't until next week, but representatives wanted to pass something acceptable to Perry before he had to veto an earlier highway bill that prompted him to threaten them with a special session this summer. Perry's at the point where he must veto HB 1892 (which he's promised to do) or let it become law. Senate Transportation Chair John Carona, R-Dallas, said legislators will recall that bill once the compromise passes both chambers, but nary a moment before. That'll save Perry from acting on it.

But it has to be a clean bill. "If the House can't restrain itself, the deal may be busted. And we'll have to go to conference committee" said House Transportation Chair Mike Krusee, R-Round Rock, the lone representative to vote against final passage of HB 1892. After he said that, the House added nearly two dozen amendments. Krusee and Rep. Wayne Smith, R-Baytown, went along with all of them, and Perry's office, at our deadline, was studying the results.

Each bill would prohibit, for two years, "Comprehensive Development Agreements" — where state or local agencies contract with the private sector to build and maintain road projects, sometimes in exchange for the right to collect tolls for 50 years or more. Almost all current toll projects in major metropolitan areas and in highly populated counties on the Texas-Mexico border would be exempt from the moratorium.

The compromise bill achieves the same goals as the old bill, Carona said, which are: 1) imposing the moratorium; 2) reforming future CDAs; and 3) allowing local authorities to continue building in their regions. The new bill spells out how and for how much TxDOT can turn over its right-of-ways (land where road can be built) to local authorities. It provides strict terms under which public agencies can build competing roads near CDA roads, and it spells out buyback provisions in case an agency wishes to renege on a long-term road lease. Once the moratorium's over, the bill also authorizes local agencies to entertain CDA proposals with terms in 10-year increments, up to a max of 50 years.

Carona said that, in the absence of a raised or indexed state gasoline tax, "We don't have enough transportation funds in the state to avoid more complex agreements like CDAs."

Privately operated toll roads should be a last resort, he said, with raising or indexing the gasoline tax being the first. But he's a senator; tax bills must originate in the House.

—by Patrick Brendel

The Gross Receipts Tax, Resurrected

A gross receipts tax got unanimous approval from the Senate Finance Committee and is on its way to the full Senate, but at least one legislator who voted for it says he was just trying to keep the bill moving. And the House sponsor of the tax corrections bill in question says the House probably won't buy it.

Sen. Steve Ogden, R-Bryan, wants the tax for two reasons. It would replace the state's new business tax in the event the courts don't like that levy. And he says it's simpler to figure out and might be more attractive to some small businesses.

Ogden, the chairman of the Senate Finance Committee, wants to give businesses in the state a choice between the two taxes. He gave up an earlier version that would have made the gross receipts tax the alternative if the courts killed the margins tax. Detractors labeled that a poison pill.

The margins tax would work like it was designed during a special session a year ago. Companies would take their gross receipts, subtract either cost of goods sold or payroll, and pay a tax on what's left. The amount they'd pay would be capped at 0.7 percent of their gross receipts, but by most estimates, the average would be below 0.5 percent.

His proposed new tax would be a flat 0.675 percent of gross receipts, with no deductions. Previous proposals for that sort of tax have been batted down by legislators (especially after the calls they get from retailers and grocers and other high-volume, low-margin companies). But Ogden wants the insurance against challenges to the margin tax (in some cases, it can be construed as a personal income tax, depending on what lawyer you're talking to). And he thinks some companies will pay it because it's easy to figure out.

The comptroller's office said officially that the Senate version wouldn't change their estimate receipts from business taxes during the next biennium. The gross receipts tax, taken alone, would bring in more, but since it's optional, they're leaving their numbers alone.

A similar tax failed in the Senate two years ago, and Rep. Jim Keffer, R-Eastland, says it would be a tough sell in the House, where his version of the cleanup bill got more than 140 votes. Sen. Tommy Williams, R-The Woodlands, says he only voted for the Ogden version to keep the bill moving. Ogden's bill makes one other change from the House version. Instead of only taxing companies with $600,000 or more in sales, the Senate has tax brackets that give businesses discounts based on their annual sales.

Water on the Brain

It looks like the House will get its last chance to pass comprehensive water legislation next week. House Natural Resources Chair Robert Puente, D-San Antonio, hopes SB 3, by Sen. Kip Averitt, R-Waco, will be on Monday's calendar.

But if lawmakers can't move that omnibus water bill — which contains provisions that protect environmental flows of water into the bays, stress water conservation and designate future water reservoir sites across the state — the Senate has the whole day Wednesday to consider a handful of water bills that collectively would do the same thing, sans reservoir sites.

Aides to Speaker Tom Craddick say the omnibus bill has sat because the House already passed the majority of the legislation, mostly in HB 3 and HB 4, and that SB 3's reservoir designations were too controversial. A single-shot reservoir bill fell 5-4 in Puente's committee two weeks ago.

As it stands now, SB 3 contains 15 designated reservoirs. That's four fewer than in the Senate version, and doesn't include two controversial northeast Texas sites important to the Dallas-Fort Worth Metroplex: Marvin Nichols and Fastrill reservoirs.

Puente anticipates "a lot" of amendments and a long debate. Two Metroplex Republicans, Reps. Charlie Geren of Fort Worth and Will Hartnett of Dallas, and are gearing up with the intention of getting Marvin Nichols and Fastrill back in the bill.

"Those reservoirs are incredibly important to the Metroplex. Without them, I don't know how supportive I can be of the bill," Geren says.

Additionally, Hartnett says he'd like to get rid of every single one of the dozen-or-so amendments added in House committee.

Puente, Geren and Hartnett all say that Marvin Nichols won't be re-added without compromise language by Sen. Kevin Eltife, R-Tyler, creating a commission to study the site. That study is the condition that ended Eltife's opposition to the bill, but it and the reservoir were stripped off the legislation in House committee.

Puente is keeping a watchful eye on people carrying paper clips, because the size and scope of SB 3 could make it an easy target for desperate members trying to tack on their own tangential groundwater amendments.

If the House doesn't hear SB 3 by Tuesday, it's dead and so are the reservoirs, unless the Senate can patch things before the session is over. Senators have an extra day (until Wednesday) if they want to pass water conservation and environmental flows legislation.

Puente hopes it won't come to that, and that he'll get SB 3 through the House and to a conference committee. Once there, the future of the bill will hinge largely on the geographic makeup of the committee. Generally speaking, urban members have been much more supportive of the proposed reservoir sites than members from rural areas.

Getting the legislation out of the House is the biggest remaining obstacle, Puente says: "With a bill like this, you make time. If it makes it to conference, we'll make time to pass it."

—by Patrick Brendel

Political People and Their Moves

Republican Francisco "Quico" Canseco started a run of radio ads in anticipation of the November 2008 elections. He wants to challenge U.S. Rep. Ciro Rodriguez, D-San Antonio, in CD-23. Canseco can't even file for that election until the end of the year, but the website is up and running at www.quicoforcongress.com. And he's got a campaign manager: Kyle Whatley, recently the director of the Landowner's Association of Texas.

U.S. Rep. Sheila Jackson Lee, D-Houston, endorsed Hillary Clinton in race for the Democratic presidential nomination.

Appointments: Gov. Rick Perry named Margaret Bentley of DeSoto the presiding officer of the Texas Physician Assistant Board; she's been on the panel since 2000. She's an exec with the Crosetto Foundation for the Reduction of Cancer Deaths.

Deaths: Former Rep. Nancy McDonald, D-El Paso, of ovarian cancer. She was 72. The former nurse was an early advocate for care of AIDS and HIV patients.

Quotes of the Week

Lt. Gov. David Dewhurst, during the fight over whether there was enough support to bring up a voter ID bill, to a loud and angry Sen. John Whitmire, D-Houston, who was protesting that his vote had been ignored: "Dean, you're going to compose yourself or you're going to leave the floor."

Sen. Royce West, D-Dallas, in response to a press release (later retracted) from Dewhurst that called the vote by Senate Democrats to block that bill was "an outrage against all Americans": "I'm as American as he is."

Rep. Jim Keffer, R-Eastland, on challenging House Speaker Tom Craddick, R-Midland: "I think it's time for a leadership change."

Rep. Harvey Hilderbran, R-Kerrville, quoted on the Houston Chronicle's Texas Politics podcast, on Craddick: "He's a micro-manager. He's even dictatorial. And he's parochial... but other than that, I mean, he's a nice guy. He's very nice, and he can be very kind. And he can be helpful, if it's not, if it's something he doesn't care about, he can be quite helpful to you. If it's something he's got an agenda on, or a conflict with yours or something he wants that you don't like, that's a problem."

Rep. Fred Hill, R-Richardson, quoted in the Fort Worth Star-Telegram on Craddick's vow to give members more leeway this session: "I had one member tell me they liked him better when he was a despot."

Ector County school trustee L.V. "Butch" Foreman III, quoted in the Odessa American after the ACLU filed a lawsuit to stop that school district's Bible study classes: "If they don't have children in the class, they can kiss my butt. They're just looking to impose their beliefs and their views on everybody, and we don't put up with that crap out here."

---

Texas Weekly: Volume 23, Issue 46, 21 May 2007. Ross Ramsey, Editor. Copyright 2007 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.