The Contrarian

Report: Nearly Half of Enterprise Fund Companies Gave to Perry (UPDATED)

Forty-three companies that got taxpayer grants donated millions to Perry.

Updated below.

Gov. Rick Perry touts his Texas Enterprise Fund—which doles out public money to spur job growth—as an economic boon to the state. But nearly half the companies that received the taxpayer grants are also politically connected to Perry, according to a new report by an Austin watchdog group.  

The report—released Thursday by the nonprofit Texans for Public Justice—found that of the 90 companies that have received Enterprise Fund grants, 43 have given money either to Perry’s campaigns or to a political organization closely tied to him. Those 43 companies received $333 million in public money through the Enterprise Fund. They donated nearly $7 million to Perry’s campaign account or to the Republican Governors Association. Perry served as chair of the Washington, D.C.-based governors association in both 2008 and 2011 and has helped raise substantial money for the group.

The Enterprise Fund has handed out nearly $440 million in taxpayer money to those 90 companies since its creation in 2003. Perry’s office claims the economic development grants have created more than 59,000 jobs. Critics have often called the program a political slush fund for the governor.

In March 2010, the Observer first reported that nearly 40 percent of Enterprise Fund companies had contributed to Perry’s campaign or to the Republican Governors Association. Our 2010 analysis showed that 20 companies had donated $2.2 million. In the past 18 months, the number of Enterprise Fund grants has increased—as has the political giving.

Andrew Wheat, Texans for Public Justice research director, said the campaign contributions present a conflict of interest for the governor’s office. “Having the government give out public money to private companies is inherently controversial,” he said. “If indeed a government is going to have this kind of program it would seem to be prudent to have it heavily insulated from the political process, which this one definitely is not.” (Full disclosure: Wheat has written columns for the Observer.)

Perry’s office largely decides which companies receive funds, though the lieutenant governor and Texas House speaker also must approve grants. Companies that receive money from the Enterprise Fund file reports with Perry’s office to document that they’re creating the required number of jobs. Companies that fail to create jobs must return money to the state, but only if the governor’s office requires them to.

Wheat said it’s a conflict of interest for Perry—who’s receiving large campaign contributions from these companies—to oversee their compliance. “It seems insane that the politician that is handing out this money and is receiving campaign money from these same sources is also in charge…. There should be independent bean counters enforcing the public’s interest in these contracts.”

Perry’s office didn’t respond to a request for comment late Wednesday afternoon. In Tuesday night’s GOP presidential debate in New Hampshire, Perry was asked about public subsidies for companies that are also his campaign contributors. He defended the grants and noted that the Texas Legislature has oversight of his economic incentive programs. The Legislature meets once every two years.

The top donors in the report include major companies such as Hewlett-Packard and General Electric, which each gave more than $600,000 to the Republican Governors Association since 2008.

Another top donor—the Texas A&M Institute for Genome Medicine—may have exaggerated its job creation numbers, according to a Wall Street Journal report this week. The newspaper found that the Texas A&M Institute for Genome Medicine claimed to have produced 12,000 jobs, when in fact the newspaper could confirm only 220 jobs. “What accounts for the discrepancy? The newspaper asked. “To reach their estimate of 12,000-plus jobs created by the project, officials included every position added in Texas since 2005 in fields related sometimes only tangentially to biotechnology, according to state officials and documents provided by Texas A&M. They include jobs in things like dental equipment, fertilizer manufacturing and medical imaging.”

The Institute for Genome Medicine—at Perry’s alma-matter—received $50 million in taxpayer money from the Enterprise Fund in 2005. The institute has contributed $506,000 to Perry’s campaigns and another $85,000 to the governors association, according to the Texans for Public Justice report, the fifth most generous contributor among Enterprise Fund recipients.

Update (Oct. 14): The Texas governor’s office referred questions about the report to Perry’s campaign. Katherine Cesinger, a campaign spokesperson, responded that TPJ drew “false and unsupportable” conclusions in its report. “In fact, many of the ‘crossover’ companies TPJ cited also contributed nearly equal amounts to the Democratic Governors Association as they did to the RGA during the same time period,” Cesinger wrote in an email. “Each TEF project must receive unanimous approval from the governor, lieutenant governor and speaker of the House to receive funding. Funds are awarded based on the merits of the projects, including job creation, and the TEF is key to Texas’ ability to successfully compete with other states economically. The program also has strong contract provisions and is reviewed every two years by the Texas Legislature.”

Is Rick Perry Finished?

Plagued by mistakes and behind in the polls, Perry tries to revive his presidential campaign.

“A month ago, all we heard about was Rick Perry and now, he’s off the map. He had a worse September than the Red Sox.” —David Letterman

It’s funny because it’s true. On Aug. 13, the Boston Red Sox had the best record in the American League and were favorites to reach the World Series. On that same day, Rick Perry announced his presidential candidacy. He rocketed to the top of nearly every poll and soon became the favorite to win the Republican nomination.

Then came September. The Red Sox completed one of the most stunning late-season collapses in baseball history by surrendering a ninth-inning lead to last-place Baltimore on the season’s final night and missed the playoffs.

Bad as that was, Perry might have had a worse month. (That’s really saying something: Boston lost 20 of its last 27 games.)

You know the litany of Perry errors. There were his unsteady debate performances—the last of which included an attack on Mitt Romney and an answer on Pakistan policy that were so nonsensical it seemed Perry was coming off a four-day bender. Conservatives are hammering Perry for granting in-state college tuition to children of undocumented immigrants. Then there were his face-palm, off-the-cuff remarks, including saying that Warren Buffett(!) was out of touch with the private sector and that Perry would be open to sending troops into Mexico. And, of course, there was the ranch controversy.

Eat your heart out, Terry Francona.

The popular theory among some political pundits is that Perry is down, but not out—that he can still right his campaign, overtake Romney and win the nomination. And the Perry-comeback narrative has some merit. My colleague Forrest Wilder recently laid out several compelling reasons why Perry can still win this thing. He does have the money, time, talent and opportunity to do it. The clown show that is the GOP field remains wide open. So I won’t count anyone out, Perry included. (A smooth performance at Tuesday’s Republican debate could start the Perry comeback.)

But I have a hard time seeing it.

Perry’s problems appear to run much deeper than a few controversial statements and what his family’s hunting ranch was called. Put simply, the Texas governor looks like a flawed candidate right now.

It’s baffling for those of us who watched Perry win every election he entered in Texas and who considered him a talented campaigner.

For most of August and September, I told national reporters who called to ask about the governor that Perry was an excellent politician. He may not seem impressive at first, I had said, he may not be a policy whiz or be a slick debater, but he’s a natural on the campaign trail, someone who connects with people, and a man with uncanny political instincts and an aggressive style that rattles his opponents.

That person seems to have disappeared. I don’t recognize the Rick Perry who’s running for president.

He’s making cringe-worthy gaffes during debates and embarrassing comments on television and in speeches. Instead of attacking his opponents, he’s constantly clarifying, explaining, apologizing and back-peddling. Each time he tries to reorient his campaign and get back on the attack, another controversy knocks him on the defensive. I don’t claim to be a political expert, but I do know that candidates who are clarifying and explaining their positions are losing the race.

What’s so puzzling is that the topics giving Perry problems aren’t new. Texas Democrats and Republicans have attacked Perry for years without success on cronyism, HPV and immigration.

Yet now Perry seems flustered. I won’t pretend to know why. Perhaps it’s the same unknowable reason that the potent Red Sox lineup stopped scoring runs late in the season. Perhaps he’s in poor health. Perhaps his campaign team has become too comfortable and overconfident after a string of easy gubernatorial elections. Perhaps Perry just wasn’t that good to begin with.

But whatever the reason, it’s evident that Perry wasn’t prepared for a national campaign. As a result, he’s falling seriously behind.

I’m usually suspicious of early polls, but some of Perry’s numbers are alarming. The latest survey of New Hampshire voters has Perry in a tie for fifth—with just 4 percent of the vote. (The poll has a margin of error of 4.4 percent—so Perry could be as high as 8 percent….but he could also be at zero!) Either way, he trails Romney by about 30 points. The voting in the first primary state begins in 90 days. His numbers in Florida are nearly as bad.

There’s still time to revive his campaign, but the signs aren’t encouraging.

Media reports this past weekend told of a more “disciplined” Perry on the campaign trail in Iowa. Disciplined doesn’t mean better. A New York Times story today portrayed a candidate trying to find the right formula:

Mr. Perry is re-examining his campaign — and himself — in an effort to correct his shortcomings of style and substance….

“He seems uncomfortable on the stage,” said Sam Clovis, a conservative radio host in Sioux City who had a more favorable impression of Mr. Perry after shaking his hand during a weekend campaign stop here. “He’s going to have to get much, much better.”…

He raced through campaign events, delivering speeches that clocked in around eight minutes. He quickly moved to question-and-answer sessions, but after calling on five people, he shouted, “Last question!” (Most candidates assign that task to an aide to avoid the impression that it is the candidate who is eager to go.)….

Several Republican voters who turned out for his campaign events said they knew little about him, aside from the recent debates, and walked away disappointed that they had not learned more.

Steven Berntson, 57, a corn and soybean farmer from Paullina, asked Mr. Perry to discuss the books that have shaped his life. Mr. Perry replied by citing the free-market economist Friedrich Hayek, but did not name the title of his well-known book, “The Road to Serfdom,” as he criticized Keynesian economics and turned back to a general conversation about the economy.

After Mr. Perry finished speaking, as he shook hands and signed autographs nearby, Mr. Berntson said that he was disappointed by the answer and by the fact that he had mentioned only one book.

“I wanted to see how deep he was,” Mr. Berntson said. “I asked an open-ended question that I thought would give the candidate lots and lots of room to help us know who he is. And he talked about it for less than one minute.”

Yikes. Does anyone believe that “The Road to Serfdom” is really the book that shaped Perry’s life? Or did he just say that because he wanted to stay on message? When politicians try to remake themselves on the fly, start heeding consultants’ advice for fixing their flaws, shortening their answers and speeches, and sticking strictly to talking points, it usually doesn’t end well.

Retail politics and speaking to small crowds on the stump is supposed to be Rick Perry’s strength, his specialty, his big advantage over Romney. He’s never been a great debater. He’s not a policy wonk. If he’s struggling on the campaign trail too, then what does he have?

Not that candidates can’t improve their skills. We’ve seen politicians improve aspects of their game over the course of a campaign. (During more than 20 debates in 2007-2008, Barack Obama became a much sharper debater.) But you have to be naturally good at something. It’s very difficult for a candidate to re-invent himself in the middle of a national campaign.

But that’s seemingly what Perry is doing. He reminds me of a baseball player mired in a hitting slump who’s constantly fiddling with his stance, tweaking his swing, grasping for the right adjustment that will yield results. He seems a far less confident candidate than the governor who stormed into the GOP field in August and gallivanted through Iowa.

Worst of all for Perry, his struggles have put him in the uncomfortable position of needing a good performance in the Republican debate on Tuesday night in New Hampshire to turn around his candidacy. That’s a difficult spot for someone who doesn’t excel in debates.

Perry has never been in this position before: needing a sparkling debate performance. He’s typically been ahead in the polls—able to coast through debates by avoiding mistakes. Coasting won’t suffice this time. Pat, empty-sounding answers won’t do it. Perry is behind. People want to see something from him. He needs to show some depth, an understanding of economic problems. He needs to be very good. Can he pull it off? Anything’s possible. But it’s asking an awful lot of Perry.

Like mystified Boston baseball fans, I’m stunned by all that’s gone wrong for Perry. He may still win the nomination, of course. But, right now, he seems more likely to suffer the Red Sox’s fate.

Why the Willingham Case Matters (Updated)

Will others suffer Willingham's fate?

Updated below

The now-infamous Cameron Todd Willingham case will be back in the news this week and not just because Texas Gov. Rick Perry is leading the Republican presidential field.

The Texas Forensic Science Commission, which has been investigating the Willingham-arson case for three years, plans to discuss the case at its meeting in Austin that begins this afternoon and runs through Friday.

Willingham was executed seven years ago for starting the 1991 house fire that killed his three daughters. Perry oversaw the execution and rejected a last-minute request for stay of execution—and ignored an expert report that questioned the forensic evidence in the case. Eight other nationally recognized fire scientists have since examined the case and found no evidence of arson. (For more background, read this Chicago Tribune story and this one from the New Yorker.)

The Willingham case has become an international sensation and a political problem for Perry. But much of the reporting on the case focuses on Willingham’s guilt or innocence—a debate that will likely never be settled—and misses the larger point. There is a systemic problem with flawed arson cases in Texas and across the country. The Willingham case is just the most famous example.

The commission last met to discuss Willingham in mid April, when it released a “final” report on the case. I put final in quotes because the commissioners were still waiting for the Texas attorney general to decide if the commission has jurisdiction to investigate the case and it wasn’t in April clear if the commission would take further action.

In that first report, commissioners highlighted the many flaws in the Willingham case and made 17 recommendations.

The most important was its recommendation that the State Fire Marshal’s Office review its old arson cases for possible flawed evidence. The Fire Marshal’s office files are filled with hundreds of defendants who may have been convicted by the same type of faulty arson evidence that sent Willingham to death row. None of these cases have been examined.

How many innocent people are sitting in Texas prisons on bad arson cases? We simply don’t know, because no one has looked.

I know of three likely innocent men still in prison because of faulty arson evidence. In 2009, I wrote a series on arson cases and profiled the flawed convictions for Curtis Severns, Ed Graf and Alfredo Guardiola.

All three are sitting in prison at this very moment. The Observer’s review of old arson cases turned up three apparent wrongful convictions.

Yet no agency or group has stepped forward to conduct a comprehensive investigation of past convictions. The commission’s recommendation that the Fire Marshal at least begin that process was a promising first step.

But the recommendations were non-binding. The Fire Marshal officials told me in mid-August—four months after the Willingham report came out—that they had no plans to re-investigate older arson cases.

I then called Nizam Peerwani for a comment on the Fire Marhsal’s inaction. Peerwani is the new chair of the Forensic Science Commission. (He replaced the controversial John Bradley who was forced off the commission last spring when the state Senate wouldn’t confirm his appointment. Peerwani, the medical examiner in Fort Worth, will be a much different chair than Bradley was. In previous meetings, Peerwani has not only supported other scientists on the panel, but asked some of the most intelligent and probing questions about the Willingham case.)

Peerwani told me he planned to meet with officials from the Fire Marshal’s office just before the start of today’s meeting to discuss a re-investigation of older cases. He still endorses the retrospective review, but said he understands their financial and time limitations. “I understand where they’re coming from,” he said. “We don’t have enforcement power. It’s only a recommendation on our part. “

Peerwani said crime labs and other entities that handle forensic evidence should have a policy to review their work. He said that he initiated a review of arson cases in Tarrant County from the past 20 years. It took eight months. They found no faulty convictions, he said.

Asked for further comment, State Fire Marshal Paul Maldonado released this statement through a spokesman: “I will be meeting with the Commission in the coming days to discuss all of the recommendations and explore ways that process improvements might be applied.”

Peerwani said the commissioners will decide this week if they will further investigate the Willingham case and issue another report. Or if they will drop the matter.

Even if they choose to continue, there isn’t much left for the commissioners to do. The attorney general ruled in July that the commission didn’t have jurisdiction to investigate evidence in cases before 2005. That would seem to tie the commission’s hands since Willingham was executed in 2004.

So it seems unlikely that the commissioners will make any resounding statements about the competency of the investigators in the Willingham case. They almost certainly won’t clear Willingham’s name.

But they still can press the Fire Marshal’s office—and other agencies—to dig into older arson cases.

There are 750 people in Texas prisons on arson convictions. Dozens, even hundreds, of them—like Severns, Graf and Guardiola—could be innocent.

Will their cases ever be uncovered? We’ll know more after the commissioners discuss the Willingham case either later this afternoon or tomorrow.

We will likely never know for certain if Willingham was innocent. We do know, however, that he was convicted on flawed evidence.

A review of older cases could go a long way toward uncovering anyone else who has suffered that fate.

 

Update (5:50 p.m.): The Forensic Science Commission will take up the Willingham case first thing Friday morning.

This afternoon, the commission considered new cases that involved flawed forensic evidence. It quickly became apparent how constricted the commission is following the recent opinion from the Texas attorney general’s office.

The commission rejected a half-dozen complaints, including three allegedly flawed arson cases, because they weren’t within its jurisdiction—at least as recently interpreted by the AG. The AG this summer ruled that the commission doesn’t have authority to investigate cases before 2005.

The three arson cases all occurred before then. So even though the cases apparently contained serious problems—and would otherwise have been investigated—the commission was forced to dismiss them because of “jurisdictional issues,” as Chair Nizam Peerwani put it.

The dismissed complaints included the Sonia Cacy case. Cacy was wrongly convicted of arson and served several years of a 99-year sentence before she was released from prison with the help of Austin fire scientist Gerald Hurst (the same expert who first questioned the evidence against Willingham and whose report Gov. Perry ignored just before the 2004 execution.) While Cacy’s case has obvious flaws, the commissioners were powerless to do anything because she was convicted before 2005.

Several commissioners expressed frustration with this new legal straight jacket.

Commissioner Sarah Kerrigan made clear the commission would have investigated these arson cases if not for the new legal boundaries. She suggested sardonically that the commission establish a committee to handle dismissed cases because given constraints of the AG opinion, “We’re going to be dealing with this in a large number of cases.”

And that might have been the point. There’s little doubt the commission was created to investigate flawed forensics prior to 2005. But imprecise wording in the 2005 statute that birthed the commission raised legal questions about jurisdiction.

Former Chair John Bradley took advantage of that ambiguity and asked for the opinion from the AG’s office. Bradley’s move was widely seen by critics as an attempt to stall the Willingham probe. We’ll find out tomorrow morning if the AG opinion will scuttle the commission’s investigation into the Willingham case.

But regardless of what happens with the Willingham case tomorrow, it’s clear that the AG opinion as severely limited the Forensic Science Commission’s power to investigate new allegations of forensic misconduct. That can’t be good.

Perry: The Cruise-Control Debater

In his first national debate, Perry will likely stay above the fray.

Rick Perry has never been keen on debates.

In his three campaigns for Texas governor, Perry treated candidates debates as necessary evils—events he had to endure and survive. (That is, of course, with the notable exception of the 2010 general election, when Perry refused to debate his Democratic opponent.)

Though Perry is the longest serving governor in Texas history, I can think of only four debates he’s appeared in: one debate each in the 2002 and 2006 campaigns, and two during the 2010 GOP primary.

 The governor didn’t perform particularly well in any of them. He didn’t have to. Each time, he was ahead in the polls and coasting toward victory. His mission was simply not to screw up. He played it safe, defended his record, and avoided any gaffes that might have altered the race.

Tonight Perry will take part in his first nationally televised debate as a presidential candidate. (8 p.m. EDT on MSNBC). We’ve been bombarded in recent days with analysis of Perry’s debating skills. Paul Burka at the Monthly thinks Perry will be “seen as the winner.”  The New Republic opines that he will “thrive in presidential debates.”

In reality, we really don’t know if he’s up to the task; Perry never needed a knockout debate performance. He’s never trailed in the polls and needed a lively debate performance to jump-start his campaign.

The conventional wisdom in Texas has always been that if and when Perry ran for national office, he’d have to break away from his cruise-control debating style and actually engage his opponents.

I doubt that will happen tonight.

Perry once again finds himself leading in the polls. His mission tonight—as in his past gubernatorial debates—is to avoid saying anything incredibly stupid.

Perry may face tough questions from the medial panel, and attacks from Michele Bachmann and Mitt Romney about his controversial past remarks and actions.

But as long as Perry can effectively defend his record and not commit any race-altering gaffes, then he will likely continue as the GOP front-runner. It’s a position Perry is familiar with and one he’s succeeded in.

All eyes will be on Perry tonight, but I suspect he will stay above the fray. And I doubt we’ll learn much about his debating skills.

At some point—either later in the primary season or perhaps in a general election against Obama—Perry will face a one-on-one debate that he can’t simply coast through. He will face a debate in which he’ll have to appear presidential, offer concrete proposals and rise to the occasion before a live national audience.

But that won’t happen tonight.

Can Rick Perry Govern?

Texas governor is a terrific campaigner but has accomplished little in office.

“With the support of my family and unwavering belief in the goodness of America, I declare to you today as a candidate for president of the United States.”

With those words, Gov. Rick Perry on Saturday ended years of speculation and made official what had become apparent months ago: He will seek the presidency in 2012.

Amid all the horse-race analysis of Perry’s candidacy—can he win? how does he stack up against Mitt Romney?—a more basic question has been lost. Can he govern?

Therein lies the rub for Rick Perry. His record in Texas doesn’t exactly blow you away. The man can win an election, no doubt. But once the campaigns are over and he actually gets into office, well, the results aren’t inspiring.

In fact, I would argue that Perry has achieved no major legislative accomplishments as governor.

Everyone will point to the Texas economy, of course. And Perry will undoubtedly center his presidential campaign on the so-called Texas Miracle. Perry does deserve some credit for Texas’ better-than-other-states economic performance the past few years. But it certainly isn’t all—or even mostly—his doing.

Meanwhile, the major policy proposals that were Perry’s doing have all been colossal failures.

First there was the Trans-Texas Corridor. Perry initially proposed this toll-road plan during the 2002 governor’s race. It would have used government’s eminent domain authority to seize rural farmland for a massive toll road project, complete with rail and utility lines. The backlash from rural Republicans was intense, and the plan died slowly over the next four legislative sessions.

In 2007, Perry proposed that all young girls receive the HPV vaccine. That idea suffered defeat even faster. Conservatives in the Legislature would have none of it.

Then there’s the one major proposal that Perry passed into law—the business margins tax. This tax increase on business was crafted in 2006 as part of a school-finance reform. The idea was to cut property taxes and replace the lost revenue with a new business tax.

This 2006 tax “swap” was the one instance during Perry’s decade as governor when he proposed a wide-ranging plan and successfully pushed it through the Legislature mostly unchanged. It’s perhaps his signature legislative accomplishment.

Problem is, it’s been a disaster. Small businesses don’t like it. Some conservatives hate it—in fact, a few believe Perry’s business tax is unconstitutional. Worst of all, the tax doesn’t generate enough revenue. The tax swap has cost the state $5 billion a year for five years running. The Texas budget now faces an ongoing structural deficit because of the underperforming business tax.

None of this is to say Perry has been ineffectual. He’s used his veto power (or the threat of it) to bend the Legislature to his wishes. And he’s utilized his power of appointment to build a web of political patronage that stretches across every entity in state government. He’s greatly expanded the influence of the once-weak Texas governorship.

But he’s not a policy guy. At times, it’s difficult to even glean a coherent ideology from him. Yes, he’s generally conservative; a times, he’s extremely conservative. But the details are tough to pin down. In fact, his three major proposals—pitching toll roads built with eminent domain, requiring a vaccine for an STD and passing a new tax that created a permanent budget deficit—aren’t exactly “conservative.”

If you watch Perry long enough, you realize he doesn’t sweat the details. The specifics of his positions are often fungible depending on what’s politically advantageous at the moment. For instance, in 2011, as Perry prepared to run for president, we saw him take more hard-line conservative positions on immigration and government spending.

In his folksy, delegate-the-details approach to governing, Perry will undoubtedly remind some voters of George W. Bush. But Perry may be even less interested in policy than Bush. By most accounts, Bush genuinely cared about education reform. Perry? In 2005, he proposed an education reform plan so unworkable that the GOP-dominated Texas House voted it down 126-0.

As governor of Texas, Perry’s lack of policy depth hasn’t hindered him much. He lets the Legislature do the heavy lifting. When the Legislature isn’t in session, Perry floats from one public appearance to another, cheerleading the Texas economy. It’s a nice gig.

But if he wins the presidency, Perry will have to deal with complex policy every day. It’s hard to envision him flourishing in that role.

Perry is a masterful politician, a charismatic and talented campaigner. But the whole governing thing? Not his forte.

Wendy Davis’ Last Hurrah?

Fort Worth senator filibusters key bill; special session likely

If this was her last stand in the Texas Senate, Wendy Davis made it one to remember.

Davis, the Fort Worth Democrat, put on a memorable filibuster late Sunday night. She not only talked to death a key school finance and revenue bill, but in the process blew up the final night of the 82nd legislative session. Thanks to Davis, the Legislature likely will reconvene for a special session in the very near future to debate and pass a school finance plan.

The bill in question, Senate Bill 1811, provides needed financing to balance the budget. Lawmakers also pegged on to the bill a controversial school-finance reform. The changes to how the state distributes money to schools was needed to accommodate the $4 billion cut to public education contained in the budget. As Davis noted several times in her 77-minute filibuster, this is the first time in anyone’s memory that the Legislature has slashed funding for public education to such a degree.

Many Democrats despised those education cuts. There was little Democrats could do about it when the budget bill passed both the House and Senate on Saturday. But the one bill they could kill was SB 1811. The negotiations between House and Senate leaders on the school finance plan had dragged into Saturday. That meant neither chamber could hear the bill until late Sunday night, leaving it vulnerable to a filibuster that would stretch beyond the midnight deadline to pass legislation.

It was a night few Capitol watchers will forget, a night when the best-laid plans of the governor and the legislative leadership were obliterated by a first-term Democrat who may not return next session.

The conventional political wisdom is that Davis can’t win reelection. When Republicans redrew the Senate district lines this session, they did Davis no favors. The new map will likely be the subject of a court battle. But if the proposed lines are upheld, Davis will find herself in a Republican district.

So on Sunday night, she had little to lose. Rumors of a filibuster were already swirling when the House passed SB 1811 just after 9 p.m. (House Democrats tried to kill the bill too. They hurled a half-dozen points of order at it, but all were overruled.)

Davis was the last chance. When she rose to speak, everyone knew why. “I think I know why, but Sen. Davis, for what purpose do you rise?” asked Lt. Gov. David Dewhurst.

“To speak against the bill,” she said. And with that, the filibuster was on, and the course of the session drastically changed.

There is a slim chance the Senate could pass SB 1811 on Monday and avoid a special session. Lawmakers aren’t supposed to debate substantive bills on the session’s final day. But a 25-vote super-majority could suspend the rules and pass the bill. That would presumably require support from 19 Republicans and six Democrats. It wasn’t clear late Sunday if Senate leaders could muster the 25 votes needed. “I have no idea,” Dewhurst said when asked.

He was more concerned with criticizing Davis—calling the filibuster the act of a single senator that  “puts the budget in crisis,” he said.

Well, maybe. There was talk late Sunday that the comptroller could still certify that the budget balances, even without the billions in financing contained in SB 1811. If so, the Legislature could avoid opening the budget back up in a special session, and simply deal with school finance and other fiscal matters in the now-dead (or mostly dead) SB 1811.

For her part, Davis defended her actions when she met with reporters after the Senate adjourned. “The budget bills—HB 1 and all the smoke-and-mirror pieces of legislation that are needed to prop it up—fails to address the priorities that Texas families have,” she said. “I did my part, the small part I could play, in stopping a failed public policy.”

A special session may produce the very same school finance bill, and Democrats will have gained nothing but extra days or weeks in Austin. But they’re hoping that more time for debate and public scrutiny will lead to more money for public schools. As many Democrats have noted, the Legislature is proposing $4 billion cut to schools while the state maintains $6 billion left untapped in the Rainy Day Fund.

But there are risks. A special session on school finance offers Gov. Rick Perry the opportunity to bring back other controversial issues—primarily the anti-immigration bill that bans so-called sanctuary cities. Senate Democrats managed to kill the bill in the regular session. But without the protection of the Senate’s two-thirds rule in a special session, Democrats would have little chance to block a sanctuary cities bill again.

Asked about that possibility, Davis said “The governor could bring us back on any of those issues any time he chose. And I don’t think our voices on the failure to adequately fund public education and our objection to it should be silenced because we fear that other issues might be called.” 

But she admitted that some of these risks had crossed her mind before the filibuster. “Some of the questions you all have asked, I asked myself,” Davis said. “This is the tool that we had to make a stand. And it’s the tool that I used, and I’m proud to have used it on behalf of the people I represent.”

Under Cover of Darkness, Lawmakers Side with Insurance Companies – Again

Insurance Dept. reform bill includes few consumer protections.

Late on Friday night—with few people watching—the Texas Senate handed the insurance industry another major victory. 

Insurance companies have had their way in Texas for at least a decade now. The result is that Texas homeowners pay the highest insurance rates in the country. And the industry has repeatedly blocked attempts to save consumers money. 

But Friday’s victory—in which insurers got nearly everything they wanted from a major insurance reform bill—may have been the fastest and least-heralded of the industry’s many recent triumphs. 

Perhaps you didn’t know that insurance reform was even an issue this legislative session. The Texas Department of Insurance is undergoing sunset review—a once-every-12-year process in which agencies are examined for flaws and potential reforms. Yet the Insurance Department sunset bill—House Bill 1951—has received almost no media coverage. 

The House passed the legislation on May 11 with no fanfare. House members rejected nearly every proposal that would impose more regulation on the industry to reduce rates. 

And on Friday night—in less than 30 minutes of debate—the Senate passed an even more industry-friendly version. When the bill came to the Senate floor past 9 p.m., the gallery was empty and only three reporters (myself included) remained at the press table. Most people’s attention was focused on the major spending debate across the Capitol in the House chamber. And on a day when legislative leaders had struck a budget deal, insurance reform simply didn’t rate. 

But once upon a time—back in 2003—those highest-in-the-nation insurance rates were considered scandalous. It’s easy to forget that insurance reform was the major issue of the 2002 governor’s race. 

Then as now, Texans paid on average the highest homeowners insurance premiums in the country, despite home values far below states like California and Florida. Insurers have long argued that rates in Texas are high because the state experiences such extreme weather—from hurricanes on the coast to tornadoes in the Panhandle to floods in Central Texas. 

Consumer advocates have noted that states like Florida and California also experience calamitous weather yet have lower average premiums. 

Whatever the cause, eight years ago, consumers were demanding more regulation of industry. In the 2003 session, lawmakers chose the lightest regulation possible. They decided not to give the insurance commissioner the power to approve rates before they go into effect—a system known as prior approval. Industry understandably hated the idea. 

Instead, lawmakers instituted a system known as “file and use” in which insurance companies can raise rates whenever they want. The Insurance Department can review the rates after they’ve gone into effect. If the rates are too high, regulators can try to convince the company to lower the prices, including taking companies to court. But that’s proved difficult. Insurance companies, it turns out, have many talented lawyers, and regulators have rarely successfully forced companies to reduce rates. 

The weak regulatory structure is one reason why—eight years later—Texas still has the highest insurance premiums in the country. And though rates haven’t fallen, consumer outrage seems distinctly muted. 

Democrats have tried and failed repeatedly to institute a prior-approval system and other pro-consumer reforms in previous sessions. That includes 2009, when the Insurance Department originally went through sunset review. (The bill died on the last weekend of the session, so lawmakers were forced to re-do it this year.) Republicans once again shot down prior approval this session in both the House and the Senate. 

But during the House floor debate on May 11, Democrats attached one significant pro-consumer amendment. Rep. Craig Eiland, a Galveston Democrat, proposed a requirement that insurance companies offer consumers a single simplified form that explains their different plans. 

Alex Winslow, executive director of the nonprofit group Texas Watch, said a standard form would allow consumers to compare products and prices from different companies in the deregulated market. Purchasing insurance isn’t quite like buying cereal or even comparing cell phone plans. The details of insurance are much too complex for many consumers. A standard, simplified form put out by every company would allow consumers to comparison shop. “We believe [standard forms] will lead to real price competition,” Winslow said.

Consumer advocates pitched the Eiland amendment to House GOP members as a pro-market proposal. It would spur more competition and perhaps help lower prices. House members mostly agreed and voted the Eiland amendment into the bill. 

But when the bill reached the Senate, Sen. Glenn Hegar stripped out all the House amendments, including Eiland’s. 

When the bill came to the Senate floor on Friday, Hegar defeated three Democratic amendments that would have imposed more regulation on industry. No one even offered a version of the Eiland amendment. So the Senate version lacks even that consumer protection. 

The bill will likely now go to a conference committee, which will meld the House and Senate versions. There’s still a chance the Eiland amendment on standard forms will make into the final bill. 

But whatever the outcome of a conference committee, lawmakers have already made sure this session’s major insurance reform will once again heavily favor industry. 

Landmark Session for Aiding the Wrongly Convicted

Lawmakers pass DNA testing bill two days after approving eyewitness ID reform.

It’s been a rough session: A massive budget deficit, talk of closing schools and nursing homes, and divisive debates over sanctuary cities and voter ID. 

But there’s at least one policy area in which lawmakers are coming together to make meaningful reforms—criminal justice. 

The latest feel-good bill passed earlier today when Senate Bill 122 flew through the House uncontested. The legislation, authored by Sen. Rodney Ellis, will make it much easier for prisoners to access DNA testing. It could help wrongly convicted men prove their innocence and speed their release.  

The bill has already passed the Senate and now heads to the governor. 

“SB 122 will ensure that if there is DNA evidence available to prove someone’s innocence, it can and will be tested,” Ellis said in a statement.  “No longer will the door to justice be shut just because of a procedural error.”

A number of recent exonerees testified in support of the bill at committee hearings, arguing it could help free many wrongly convicted people still in prison. Under current law, prisoners who claim they’re innocent can request post-conviction DNA testing, but the testing is sometimes not granted. Under current law, DNA testing can be granted only if the evidence wasn’t available at trial. 

In several recent cases, including the famous Hank Skinner case, possibly innocent men had trouble accessing DNA evidence that was available at trial, but, for a variety of reasons, wasn’t tested. (In some instances, incompetent defense attorneys simply ignored DNA evidence at trial.) 

SB 122 would require post-conviction DNA testing if the evidence was either never examined or if newer testing techniques have emerged since the original trial. 

The passage of the DNA bill comes two days after lawmakers approved legislation to reform police lineups and reduce witness misidentifications that are the leading cause of wrongful convictions. 

Meanwhile, another Ellis bill—SB 1686 that would allow exonerees to receive health insurance from the state after their release—is close to final passage. 

In all, this is shaping up as a landmark session for preventing and rectifying (at least to the extent possible) the injustice of wrongful convictions.

Update (May 18, 1:05 p.m.): Sen. Rodney Ellis just passed the eyewitness reform bill through the Senate without objection. It took all of three minutes. Bill headed to the governor.

Posted earlier: It’s not often you can say a piece of legislation might save lives, but House Bill 215 might do just that.

Known as eyewitness ID reform, the bill would help prevent wrongful convictions in Texas. It would institute best practices for police lineups and greatly reduce the chances that witnesses will mistakenly send an innocent person to prison. Witness misidentification is the leading cause of wrongful convictions—it’s a factor in 75 percent of cases later overturned by DNA testing, according to the New York-based Innocence Project. Criminal justice reform advocates have tried for years to reform police lineups. And, finally, it seems the Texas Legislature will pass the bill.

The Senate is expected, perhaps as early as today, to debate HB 215. The bill—authored by Sen. Rodney Ellis (D-Houston) and Rep. Pete Gallego (D-Alpine)—has already passed the House. If senators pass it on Wednesday—and they unanimously approved an earlier version—the bill will go to Gov. Rick Perry, who’s indicated he plans to sign it into law.

Under the legislation, the Bill Blackwood Law Enforcement Management Institute of Texas would develop a set of best practices to prevent flawed lineup procedures. Policy experts have done extensive study of this area. It’s no secret how lineups can be rigged or how to set up a good one. Texas law enforcement agencies would be strongly encouraged—though not required—to follow these procedures. And if they don’t follow the best practices, they may have to reveal that failure at trial.

There was fresh evidence last week of the need for these reforms. Johnny Pinchback was freed from prison after DNA tests showed he wasn’t the man who sexually assaulted two teenage girls in Dallas in 1984. Both victims misidentified Pinchback as their attacker from a photo spread. Pinchback would spend nearly 27 years in prison for a crime he didn’t commit, while the actual rapist went free.

And, of course, there’s the most famous case—Tim Cole’s. Texas has exonerated dozens of men in recent years, and several of them have offered moving testimony this session in support of the bill. But it was Cole’s tragic story—his wrongful conviction in Lubbock and subsequent death in prison before he could be exonerated—that perhaps more than any other has helped spur recent reforms to the criminal justice system. HB 215 might prevent others from suffering Cole’s and Pinchback’s fates.