The Contrarian

“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.

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.”

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. 

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.