This Session, Lawmakers Put Down Their Swords

_{*Clarification appended.} 

If Texas’ less-than-theatrical 83rd legislative session is remembered at all, it will be known for accords, not discord. 

Lawmakers put down their partisan swords to expand financing for water infrastructure, women’s health, public education and the mentally ill, steering almost entirely clear of bitter ideological battles over immigration enforcement and abortion.

The state’s Republican majority pulled its weight in a few key areas, passing legislation requiring drug screening for unemployment benefits and preventing measures to expand Medicaid, the joint state-federal health care program for children, the disabled and the very poor, under federal health reform.

But Republicans themselves warded off some of the session’s most anticipated battles, like Sen. Dan Patrick’s “school choice” effort to finance scholarships so public school students could attend private schools.  

And House Speaker Joe Straus’ reluctance to tackle redistricting — though Gov. Rick Perry, Lt. Gov. David Dewhurst and Attorney General Greg Abbott wanted to — was an effort to keep Democrats in the fold, which is unlikely to last if the governor calls them into a special session on the issue.

Indeed, many of lawmakers’ hardest-fought initiatives this session — preventing wrongful convictions and prosecutorial misconduct, reforming high school diploma requirements and high-stakes testing, and curbing the authority of regents of the state’s public university systems — did not fall along party lines.

Behind the curtain, there were many forces at play: a more robust state budget; the biggest freshman class in years; a Republican base just small enough to require allegiances with Democrats or the Tea Party, depending on the issue; and the soon-to-be-revealed political aspirations of Perry, along with the chessboard of elected officials waiting for him to make his move.

In many ways, the most gripping stories of the 2013 legislative session happened outside of the House and Senate chambers.

BUDGET BROKERAGE

In 2011, lawmakers struggled with how to address a multibillion-dollar revenue shortfall. Two years later, the Legislature has had a much different problem. Tax collections are surging and state coffers are flush, in large part because of an oil drilling boom.

Before the session began, it was clear that three issues would drive the budget debate: restoring the 2011 education cuts, finding money for water infrastructure projects and addressing a financing crisis at the Texas Department of Transportation.

With a Rainy Day Fund of about $12 billion at their disposal, some legislators were hopeful that all three issues could be resolved. That became less likely as a debate emerged among Republicans over the fund’s purpose.

Is it there to address revenue needs during recessions and in the event of natural disasters? Or is it meant to preserve the state’s high bond ratings so that lawmakers can continue borrowing money cheaply? Perry and a contingent of Tea Party-friendly Republicans insisted that the latter purpose was crucial and pushed for withdrawing as little from the fund as possible. Others argued that the state would be just fine with a savings account that is $6 billion lighter. A deal backed by budget leaders last week had lawmakers spending about $3.9 billion from the fund.

As the factions fighting for school and water financing gained traction, those focused on transportation were not as successful. TxDOT leaders warned that the agency needed $4 billion a year in extra revenue or else congestion across the state would get worse. But lawmakers did not get worked up about the issue, as large road projects are still underway in the state’s urban centers.

In the final week, Democrats resigned themselves to coming up short of their goal to fully restore $5.4 billion in cuts to education. But far-right lawmakers and conservative activists had also lost their efforts to maintain the cuts in their entirety.

BAD BEHAVIOR

For political junkies who reach for the popcorn whenever they spot drama unfolding on the House or Senate floor, the 2013 session was a bit of a flop. Lawmakers largely sidestepped the most contentious issues, at least in public.

It would have been hard to surpass the riveting theater of the 2011 session, in which a House member used a transvaginal probe as a debate prop and a band of protesters cried “Criminal! “ and “Treason!” from the Senate gallery over the death of a bill that would have criminalized invasive body searches by Transportation Security Administration employees.

Much of the previous session’s rancor centered on volatile issues related to abortion and illegal immigration that Perry had officially deemed “emergency items.” Perry did not designate any emergency items this session.

Even given the high passions of two years ago, this session has been unusually restrained. Even fights over the budget have been more congenial, an unsurprising outcome given that the Legislature has had the luxury of debating where to invest rather than where to cut.

The angriest debates have emerged in the fight over a measure to create a state innocence commission. During a Senate committee hearing, the brother of an exoneree who died while wrongly imprisoned shouted at state Sen. Joan Huffman, R-Southside Place, over her pivotal opposition to the bill. Days later, the bill’s author, state Rep. Ruth Jones McClendon, D-San Antonio, began using a parliamentary procedure to kill several of Huffman’s bills in retaliation for Huffman's opposition.

Lawmakers got a taste of the stall tactics Democrats used to derail Republican-backed legislation in the 2009 legislative session. On Tuesday night, Democrats engaged in a marathon debate and several delay tactics to run out the clock on a bill to create a drug-testing regimen for some welfare beneficiaries. They couldn’t forestall a similar bill for unemployment benefits.

SPECIAL SESSIONS

Special sessions are like Fight Club: Other than the governor and his trusty dachshund, Lucy, nobody knows for sure if and when there will be one, and nobody knows what it will be about. But this being a legislature, everyone feels free to speculate. Lawmakers have talked among themselves about the possibility for weeks.

Perry has said he wants lawmakers to address water and transportation issues, cut taxes and write a balanced budget that leaves enough money in the Rainy Day Fund to maintain the state’s Triple-A bond rating. If lawmakers do not finish the governor’s wish list, he can call them back and keep wishing — another way of saying those would be the first and most likely topics for a special session. As the session came to a close, the only open question was whether the tax cuts that were made were big enough to keep the governor happy, but a hitch in any of those issues could force lawmakers into overtime.

A couple of other issues remain. A state district judge in Austin found that the state’s financing scheme for public schools is unconstitutional. His final ruling has not been issued, and attorneys on both sides expect an appeal to the Texas Supreme Court. Depending on the content and timing of the high court’s ruling, lawmakers could be forced to return for a special session before their regular session in 2015 to patch the budget.

And then there is redistricting, the most contentious of political issues. Abbott wants lawmakers to ratify court-drawn maps that were used in 2012, freeing the state from defending maps that were drawn by lawmakers in 2011 and that are still tangled up in litigation. If the governor agrees to go along, that could mean a quick special session — perhaps as early as this week.

And Dewhurst has a list of special session topics, too: anti-abortion measures, drug screenings for welfare recipients and allowing the concealed carry of firearms in university buildings.

TOP LEADERS

Two years ago, Perry was at the height of his power, driving the Legislature to produce tough new restrictions on abortion, pass new curbs on lawsuits and enact deep budget cuts. In the 2013 session, he fell into a more traditional role — nudging a lot and threatening when necessary, but otherwise compromising with other top leaders and even Democrats.

Perry played a major role in knocking off a bill that would have used increased fees to pay for expanded transportation financing, persuading members to oppose it on the grounds that the Legislature should not be asking Texans to pay more to the state at a time of budgetary surplus. He also put a lot of political capital behind passage of a $2 billion water infrastructure upgrade and a large business franchise tax cut.

But he is facing the prospect of making concessions on the details. Though he insisted on $1.8 billion in tax cuts, the Legislature was, at last check, leaning toward giving him less than that. Education financing, at the insistence of Democrats, is also set to rise more than Perry had urged. He could still use his veto pen and special sessions to right perceived wrongs.

Perry’s Republican counterparts in the Legislature, Straus and Dewhurst, faced similar pressure to compromise. Straus had initially criticized Dewhurst’s proposal to let voters decide whether money should be taken out of the Rainy Day Fund to pay for water, transportation and education programs. In the budget compromise agreed to between the two chambers, voters will be asked to approve financing for water projects but not the other two categories — meaning both sides had to adapt.

“The legislative process, when it’s working normally, forces people to move off their ideal position,” said Jim Henson, a political scientist at the University of Texas at Austin and a Texas Tribune pollster. “It does look like everyone’s going to have to give a little something.”

FRESHMEN

Even geniuses have to learn the ropes. Somewhere in the Texas Legislature’s huge freshman class, there might be a genius. It is far too early to know that.

We do know this: 41 people in the 150-member House were serving in their first legislative session, along with three  former representatives who returned after losing their seats in 2010. The 31-member Senate got six new members this year, most of them veterans of the House.

In the Legislature’s lower chamber, the big numbers came with changes, from the trivial — a bipartisan show of purple ties every Thursday — to the substantial, like the group of conservatives who banded together several times during the session to influence debates on the budget, pensions and ethics legislation.

This freshman class will be more influential when the members know their way around the Capitol and develop their craft. The traditional advice for new legislators is blunt: “Sit down and shut up.” Many of them take that seriously. Some do not. And some got schooled for opening their mouths in debate, with senior members ribbing them good-naturedly as they presented their first bills, and much more roughly when they dared to challenge or amend other bills —especially for political reasons.

The freshman class and the large sophomore cohort elected in 2010 together include most state officeholders who might be classified as exponents of the Tea Party. When they are engaged, they can swing issues — like using the state’s Rainy Day Fund or spending money faster than the Constitution allows. That is partly because of their numbers and partly because other Republicans are wary of crossing Tea Party voters who have an outsized voice in primary elections.

That power can only grow when they gain some experience.

SPECIAL INTERESTS

Far-right special interest groups were a noisy bunch this session, but in many ways their bark was worse than their bite.

When conservative activist Michael Quinn Sullivan took aim at bills like an expensive water deal or a transportation-financing plan that would have raised vehicle registration fees — the Tea Party set in the House showed strength in numbers. 

But in the end, the influence this session of groups like Sullivan’s Empower Texans and the Texas Public Policy Foundation, a conservative think tank, was a mixed bag, particularly when compared with their successes in the 2011 session.  

Their efforts to keep the Rainy Day Fund intact have failed; the legislative budget deal would ask voters to spend $2 billion of it for water projects. Any tax relief approved this session will be smaller than what they hoped for. And while they avoided a Medicaid expansion under federal health reform, there has been little movement to formally ask the Obama administration for block grants.

Other interest groups saw bigger successes. Homebuilders, who played a key role in blocking immigration enforcement legislation last session, helped derail a measure to crack down on worker misclassification and payroll fraud in the construction industry.

And in legislation to prevent wrongful convictions, the Texas defense bar successfully removed language requiring defense lawyers to open their files to prosecutors. The measure now only forces prosecutors to turn over their records to the defense.

But Texans for Education Reform and Texans Deserve Great Schools, two new organizations that tried to pass school choice legislation, punched below their weight, despite spending a hefty sum and having a champion in Patrick, the chairman of the Senate Education Committee, who made a proposal for scholarships to send public school students to private schools a centerpiece of his legislative package. After drastically lowering their aspirations, they got the cap on charter schools raised, but struggled to find support for a number of other measures on their agenda.

WHAT'S NEXT

The Legislature has all but finished the business of the regular 2013 session, and all eyes will be on Perry as he weighs major decisions on the policy and political fronts.

First, he will have to decide whether to sign or veto the state budget, which might not have everything he wanted; a tax cut, which won’t reach the $1.8 billion total he insisted on; and scores of other measures — from new ethics rules to education reforms — hurtling toward his desk. He has until June 16 to sign or veto legislation; if he does neither, the legislation becomes law.

Even if the must-pass budget legislation survives, there are several avenues toward a special session this summer and beyond.

Abbott wants a session so the Legislature can adopt the redistricting maps put into place by the federal courts. And if voters do not approve financing for a massive water infrastructure plan, lawmakers could be back sooner rather than later to find the money. Later on, a fix for the school finance system, already deemed to be unconstitutional by a state court, might prompt another.

All the while, Perry will have to decide whether he is running for re-election, running for president or both. Or none of the above. He has said he will send a signal about his immediate future in June, just months before the filing deadline for the 2014 elections. There are numerous signs that Perry will step aside and let Abbott become the heir apparent. But Perry is keeping the decision under wraps, and anyone who knows him has learned to expect the unexpected.

_{*This story has been updated to clarify that private school scholarships were not a part of Texans Deserve Great Schools and Texans for Education Reform's legislative agenda.}