Snake Oil

The Texas House Redistricting Committee spent Tuesday considering one of its interim charges: whether 15 seats are enough for the State Board of Education.

Committee chair Burt Solomons is concerned that such a small board makes for districts that are far too large. Today, each member represents about 1.7 million people in their decisions about curriculum and textbook standards.

“You need to do something so there’s a sense that you’re representing the people in your district and the children in the school districts and the parents of school children,” Solomons told the San Antonio Express-News’ Gary Scharrer.

Scharrer does a great job explaining the debate, and it’s one that’ll be with us for a while since the next round of redistricting isn’t till 2021. State Rep. Mike Villarreal tells the Express-News that the small, two-thirds white board doesn’t allow enough minority participation, while firebrand blogger Donna Garner says that the push to expand the board is really about trying to water down the power of its Real Conservative members.

Board members are split on the move, he writes, but outgoing member Terri Leo speaks for a majority of board members:

Terri Leo, R-Spring, is retiring after 10 years. She is against board expansion because, she fears, more members will make it harder to reach decisions on complicated issues with limited time and “too many chiefs at the table.”

“The Legislature has months to deliberate on an issue,” Leo said. “With plans to have the SBOE meeting only four times a year, for only two or three days — and one of those days reserved for public testimony — I don’t see how in the world we could reach a consensus on a multitude of issues in that short time frame with more members.”

The State Board of Education once had 27 seats “and failed for that very reason,” Leo said.

The decision to shrink the SBOE came in 1984, part of one of the most sweeping public education reforms in Texas history, led by a Select Committee on Public Education created by Democratic Gov. Mark White and led by Ross Perot. Shaking up the SBOE was just one of their recommendations, and far from the most controversial.

The committee’s recommendations—including a new state testing regime for grades three, six and 12, a 22-student cap for early elementary grades, and the “No Pass, No Play” policy for extracurriculars—ended up in a sprawling reform bill that year. Though the package also included a pay hike for teachers, it was a costly fight for Mark White, who was bumped out of office after just one term.

As Leo suggested, the SBOE was a mess in the early ‘80s.

An ungenerous New York Times editorial on the Perot commission suggested that “even Texans are beginning to wonder if an education centered on football and fundamentalist obscurantism is the best way to prepare their children for life in the 21st century.”

The Times pointed out the board’s zeal in shielding tender young eyes from anything remotely titillating. “It hasn’t approved a dictionary since 1969 because Merriam-Webster refused to purge its publications of words the board deemed offensive,” the Times wrote. The SBOE also didn’t require biology texts to mention Charles Darwin, but did insist they discuss “alternative theories of evolution.”

One of Perot’s most enduring zingers came at the SBOE’s expense: “Go to Austin and sit in on a meeting,” he said. “It costs you $5 to see a movie that funny. They got people on that board who think the earth is flat.”

How far we’ve come.

At Perot’s suggestion, the Legislature abolished the 27-member SBOE—which had been elected along Congressional district lines—and replaced it by a 15-member board, which for a short time was appointed by the governor.

“Some of the dynamics that we had during that time—they’re very similar to now, in that the board had fallen into kind of the hands of the religious far-right,” says Linda Bridges, president of the American Federation of Teachers’ Texas chapter, who watched the 1984 reforms unfold. “The appointed [board] was nothing more than an attempt to try to move away from elements that had taken over the elected body.”

Former U.S. Energy Secretary Charles Duncan, who sat on the Perot commission, was one of the appointees to the new board. Speaking from his Houston office Tuesday, Duncan said there was no science behind the new number of districts. “We thought 15 would be a good number,” he says. “We had a difficult time on some issues, even with 15.”

Four years later, Texas voters decided to do away with gubernatorial appointments for the SBOE and return to a directly elected board, but the 15 big districts remained.

“I’m not sure that the number was that big a deal—they didn’t want too many. Most of the debate was, you don’t want it too unwieldy,” Bridges says. “The restructuring that went on was really more about trying to negate the impact of the folks that had taken over the board—which is much like the debate today.”

Except that today, the Legislature’s looking at reforming the board by making it bigger.

“I think it’s not so much the size of the board, as it is how the board operates and who’s on the board, and what authority they have,” Bridges says. “The main power the board has today is about curriculum, and that becomes the battleground. We should be talking about, what are the rules they have to follow on input, instead of negating the experts” and making calls on curriculum based on ideology.

“To me,” Bridges says, “that’s probably more important than the number on the board.”

Portrait of Ross Perot by Allan Warren/Wikimedia Commons

When the Legislature reconvenes next year, some of the questions before lawmakers will include the following:

• whether they’d prefer to report more or less of their personal finances to the state;
• whether those details should be easier or harder for the public to access;
• and whether they’d rather face lighter or tougher penalties for their financial misdeeds.

That’s all because next session the Texas Ethics Commission is up for sunset review, the once-every-12-years process that puts state agencies under the microscope and lets lawmakers restructure them as they see fit.

It’s a sweet deal for members of the Legislature: they get to name the terms by which they’re policed. They get to decide what does and doesn’t make them corrupt.

The first big step in the Sunset process wrapped up on Tuesday, when Sunset commissioners got a look at their staff’s evaluation of the Ethics Commission. Now, members of the Sunset commission—five members of the Senate and five from the House—get to review and edit the staff’s work before releasing the final Sunset report in early June. Next session, some version of those recommendations will turn up in a Sunset bill for the agency, which lawmakers can tweak before finalizing the changes.

The Ethics Commission, charged with policing office-holders and candidates’ finances, already operates with questionable backbone, as a report from the Center for Public Integrity detailed last month: There’s no separate division dedicated to investigations and enforcement, and tough decisions are ultimately left to political appointees.

Still, not much of that is addressed in the Sunset Commission staff report on the agency, which was presented to commissioners at the Capitol on Tuesday. That report, and the hearing around it, focused on the complaint that the Ethics Commission spends too much of its time penalizing lawmakers for clerical errors and not enough time pursuing major ethical breaches—the oft-repeated shorthand of that complaint is that they’ve been “going after the minnows instead of the sharks.”

Other suggestions from Sunset staff include updating the Ethics Commission’s strained and outdated tech infrastructure, and making its data more searchable and user-friendly.

The Sunset Commission members—five House members and five senators—generally supported changes suggested in the report, but they were particularly sympathetic to the worry that leaving one little line on a form blank can suddenly get a candidate branded as a scofflaw.

State Rep. Dennis Bonnen, R-Angleton, the Sunset chairman, worried that making ethics complaints totally public during the height of the campaign season could leave members open to baseless attacks.

“It’s a complex issue because there’s a right to free speech,” Bonnen said, but we must not forget a candidate’s right avoid getting smeared.

“Sometimes you can endanger some people by making some things so public,” agreed Sen. Robert Nichols, R-Jacksonville, the commission’s vice chair.

While the Sunset commissioners debated the merits of throwing their books wide open, a succession of citizens’ groups made the case for giving the Ethics Commission room to get much, much tougher on enforcing its rules.

Fred Lewis of the Texans Together Education Fund said there’s a basic structural problem with the Ethics Commission, something more serious than what software they use or how they display reports: mounting any investigation requires approval from six out of eight politically appointed board members.

“Frankly the problems we hear today are exactly the same problems that we heard in 2003,” Lewis said, referring to the Ethics Commission’s last bout with Sunset. “There is no civil enforcement agency that looks like or functions like the Ethics Commission, and the reason it doesn’t function is that it’s structurally incapable of functioning. It’s not that it lacks the power; it’s structurally incapable.”

Craig McDonald, executive director of Texans for Public Justice, made that case Tuesday at the Capitol as well. Now, he says he still can’t tell how interested the commission was in what he had to say.

“No one totally played their hands at the hearing,” he says. “If anyone was observing them on Tuesday, you’d think they were pretty much supportive of, at least, the staff recommendations.”

Legislators might happily suggest the Ethics Commission needs to pay less attention to minor infractions and focus on major investigations—to leave the minnows alone and go after the sharks. That works great for lawmakers if they all get to be minnows. “The question,” McDonald says, “is who’s a minnow and who’s a shark.”

Lawmakers won’t be as thrilled about giving the Ethics Commission more power to subpoena people for their investigations, or to conduct random audits. “They don’t want that,” he says. “There’s an undercurrent in the Legislature, they don’t want to give them any more power. They want to take power away.”

“Our solution is get the commissioners out of it. They shouldn’t be judging these people,” McDonald said. “I don’t know that anyone on the commission sat up and said that’s a good idea. I don’t think I heard that.”

“I think a lot of people in the Lege, they don’t like that this stuff is out there, even though it’s public information,” McDonald says.

King Street Patriots attorney Brock Akers joined the group's founder Catherine Engelbrecht Monday night.

Indiana lawyer James Bopp, the legal mastermind behind Citizens United, has made it his quest to inject corporate money into state-level politics too, after his success at the federal level.

Last week, his efforts in Texas suffered a setback when Travis County District Judge John Dietz upheld the Texas election law against corporate contributions to candidates, ruling that the Houston tea party group King Street Patriots behaved more like a PAC than a nonprofit group. In 2010, the group worked with Republicans to train poll watchers, and hosted forums for Republican candidates without inviting Democrats.

(Texas elections may not always look like grassroots affairs, but our longstanding law against direct corporate contributions to candidates and officeholders is still on the books.)

The Campaign Legal Center—a New York-based group tracking efforts to open elections to corporate influence—called Dietz’s ruling “the latest in a string of victories against an aggressive nationwide litigation blitz aimed at overturning a host of state campaign finance laws” after Citizens United. The Houston Chronicle ran it under the headline, “Judge rules tea party group a PAC, not a nonprofit.”

But inside the King Street Patriots bubble, needless to say, that’s not how the story got told. Days after issuing a statement pledging to appeal, the group’s Liberty Institute-provided counsel was in Houston Monday night, to tell the gathered Patriots just what the ruling meant.

For starters, said their lawyer Brock Akers, it didn’t mean much. Joined by KSP’s founder Catherine Engelbrecht, he told the crowd this sort of claptrap is just the sort of thing you’d expect from a liberal judge in Austin—but that everyone knew all along that this case would be decided in appeals.

This may have been one silly little battle, but make no mistake about it, Akers said, the stakes in this war remain mighty high.

“This is God’s work here, and God, I believe, ultimately honors the notion that freedom loving people need the opportunity to speak freely and to live in a free society that does not clamp down on their opportunity to say, ‘Hey, that’s not right,’” Akers told Engelbrecht. “So that’s ultimately our risk. that’s where we’re going.”

“What we’re trying to establish in a more clear way than the Citizens United decision was able to establish is an atmosphere for groups like yours,” Akers said, “to participate effectively and proactively under the guise of making sure that everything is up and up in the election process.”

If Dietz’s ruling holds, he said, the Patriots would indeed have to create a PAC to handle their political activity. “That isn’t an entirely negative thing but there are different limits on a PAC that we would prefer not to impose on ourselves, because that’s not what we are.” Chief among those: disclosing where their money’s coming from, which they’ve managed to avoid so far.

By losing, Engelbrecht said, “We could have made vulnerable one of the greatest rebirths of patriotism in the history of our country.”

Engelbrecht said she’d been hearing from all kinds of confused supporters who’d seen the Chronicle headline and took it to mean that the group had suddenly lost its nonprofit status. Folks were wondering about the damages Dietz ruled the group owes the Democrats—twice the value of the group’s illegal political expenditures.

She didn’t sound surprised. Once again, she said, the “mainstream” media was showing its hand. “We saw it in the Trayvon case with MSNBC,” she said, and in recent coverage of President Obama. More than anything, she said, “It’s been a study in the way the narrative is told.”

Patrick Michels

It's tough to get pumped about school finance in Texas these days.

If last year’s Save Texas Schools rally was a show of force—10,000 activists uniting to fight for education—its follow-up at the Capitol last weekend was, well, something else.

There were far fewer people at the group’s second annual rally at the Capitol on Saturday than in March 2011. The ones who did turn up were treated to a program that ran long, veering wildly at times away from school funding. Front-loaded with Democratic lawmakers warning of a partisan onslaught—or warnings that Republicans are turning school funding into a partisan issue—the rally petered out slowly after more than two hours, ending with a long tail of parents and students on the bill to share war stories with a few dozen stragglers.

Since the Legislature cut $5.4 billion from public education last year, Save Texas Schools volunteers have fanned out across the state, holding workshops on school finance, and preparing parents and teachers to hold legislators accountable for their record on education. That’s where they’ve been most active in the past year, and of course, it’s harder to draw teachers and parents back to an empty Capitol, especially just days before STAAR testing in high school.

Saturday’s program began with lawmakers recalling how the Legislature stymied their attempts to put more money into schools. San Antonio Rep. Mike Villarreal and Sen. Leticia Van de Putte both decried the way Republican lawmakers bent to pressure from fiscal conservative groups and then tried to suggest they put more money into the school system, not less.

Van de Putte said there’s no excuse for lawmakers who hide behind tricky math instead of fixing the broken system. “They’re worried about the report card from these little groups when they should be really concerned about the report cards that our kids bring home,” she said. “You see, they don’t like teachers ‘cause they don’t really believe in the job that teachers do, ‘cause they don’t value children.”

State Sen. Wendy Davis recalled her filibuster of a school spending bill that sent the Legislature into a special session last year.

Sen. Wendy Davis, D-Fort Worth, recalled how quickly Gov. Rick Perry dismissed the idea of calling a special session on spending some of the state’s Rainy Day Fund on schools. “Governor Perry recently said, and I quote, I would be stunned if there is an outcry from the people of this state,” Davis said, drawing some of the day’s loudest cheers. “We are crying out, Governor Perry. We believe in opportunity and we are demanding that it come.”

Organizers said they counted more than 4,500 in the crowd over the course of the rally (they counted by handing out one colored dot sticker to each person who came), but Capitol police pegged the attendance at around 1,000 people. (That’s about what I figured for the crowd, at its peak.) Americans for Prosperity Texas’ Peggy Venable was live-trolling the rally on Twitter, and put the attendance at around 500.

After the rally, its organizer Allen Weeks told me he’d figured the crowd would be smaller this time around, now that the enthusiastic multitudes have run headlong into the harsh, unfeeling reality of life at the Lege.
“Last year, it was the shock,” Weeks said, that drew so many demonstrators. “I think also, people thought, ‘Oh if I just come out, it will cause them to change.’ … I think anyone who’s been out here knows, once the machine starts, it’s in motion till the next election.”

“These people are exhausted, and we’ve got people coming in from Alpine and Corpus. So I think you saw 5,000 really hardcore, motivated parents, students, teachers,” he said—the battle-scarred few who still haven’t had enough.

Save Texas Schools leader Allen Weeks

The crowd also included campaign workers drumming up interest in candidates like Congressman Lloyd Doggett, Austin mayor Lee Leffingwell and challenger Brigid Shea, and folks circulating petitions for emergency medical workers’ causes. The rally included a designated time slot for Occupy Austin to lead a callback “mic check” chant, including a call for “justice for Trayvon” and a few minutes on the plight of state-funded higher education.

The popular backlash against state testing was in full effect as well; one of the most quoted lines was Texas Education Commissioner Robert Scott’s remark last month that testing has become a “perversion.” State Board of Education member Thomas Ratliff was among the speakers who said the stakes of school testing are simply too high. Some signs in the crowd urged parents to boycott state testing altogether. Texas Parents Opt Out of State Tests director Edy Chamness was in the crowd interest in her cause. “Even if we’re broke, why does everything get cut except for the testing budget?” Chamness asked. “That’s my tax money, in a tube straight to Pearson,” she said, referring to the company with the $500 million contract to handle Texas school exams.

Weeks said he was encouraged by all the satellite causes drawn to his group’s rally.

“Whether they be budget cuts or testing, I think they all have kind of a common sense that there’s been somebody in charge of the agenda, and it hasn’t been us,” Weeks said. “Who decided cuts were best for Texas, that somehow a very wealthy state doesn’t have the money to fund education?”

“Teachers are tired right now because this has been a really stressful year—I mean they’re feeling the cuts,” Weeks said. “But we know, we just have to get to May 29th, and if 30 percent of teachers normally vote, if we can just have 60 percent of teachers vote, everything changes.”

Weeks greets SBOE member Thomas Ratliff at the podium, at the height of the rally.

A failing report card for Gov. Rick Perry in the crowd.

By the time the last speaker took the podium, most of the crowd had already hit the road.

Patrick Michels

Jeb Bush speaks at Trinity University Thursday night.

At a Thursday night talk in San Antonio, Jeb Bush wanted to talk about Mitt Romney and his brother’s book sales—but an African American father, a Trinity University professor, spoke for many when he told the former Florida governor that the self-defense measure he signed, which has since spread across the country, has had tragic consequences.

Bush’s endorsement of Mitt Romney this week came, as Dave Weigel at Slate pointed out, at a “sub-optimal” time politically, because suddenly Bush’s taste in candidates is hardly the most interesting thing about the former Florida governor. Not when his signature sits at the bottom of Florida’s controversial “Stand Your Ground” law, at the heart of the controversy around Trayvon Martin, the unarmed high school student shot by a neighborhood watchman in Sanford, Fla.

Bush signed the law in 2005 joined by, among others, a lobbyist for the National Rifle Association—the group that helped get similar laws passed in 16 other states, including Texas in 2007. Florida’s current Gov. Rick Scott has launched a task force to reevaluate the Florida law.

While Scott has suggested taking another look at the law, Florida state Sen. Arthenia Joyner has said the Martin killing is exactly the sort of tragedy she warned about when the bill was up for debate. “When we passed the law, we said it portends horrific events when people’s lives were put into these situations, and my worst fears came to fruition,” Politifact recalled Wednesday. In 2005, they pointed out, state Rep. Ken Gottlieb warned that, “In a few years, you will be back trying to fix this bill.”

Between backing Romney for the nomination and Florida Sen. Marco Rubio for VP, Bush hasn’t had much to say this week about “Stand Your Ground.” So at a speaking event Thursday night at San Antonio’s Trinity University—a broad-strokes chat about his fondness for Mexico, his tennis game and America’s place in the world—I asked him whether Martin’s killing had shaken his trust in the self-defense law he signed, given that the warnings that preceded the bill’s passage seem to have been proven right.

Bush said, first, that there weren’t any warnings like that before he signed the bill, and second, that—though it’s impossible to know what the grand jury might decide about George Zimmerman—he doubted the self-defense law would apply here, since Zimmerman seems to have pursued Martin, and wasn’t simply “standing his ground.”

Legal experts have argued that, by eliminating a duty to retreat before shooting, the law has broadened “self-defense” to the point where it could apply here. Five years after the law was passed, the Tampa Bay Times reported that the number of justifiable homicides in Florida had tripled.

“Over the last generation of time we’ve had dramatic declines in crime,” Bush said, “violent crime particularly, just as many places in the country, and part of it is that we have laws that are pretty tough.”

After fielding questions from the audience about his speech, a black man in a tan sport coat rose to an audience microphone, and asked Bush to elaborate on his thoughts about Trayvon Martin’s death, and the role of the law he signed. The man told Bush that when he hears Martin screaming in the 911 call, it’s his own sons’ voices that he hears. “It may not be the exact application of the ‘Stand Your Ground’ law,” he said, “but that is a real context that has to be dealt with, and I just want to know how you feel about that,” the man said.

“You’re absolutely right, and so the surprise to me is that this has taken three weeks before it garnered any attention that got the Justice Department or a grand jury to do what, normally, is done in a far quicker period of time,” Bush said, beginning a lengthy answer with a delicate pivot to an unlikely direction:

So by saying that the law is not going to be applied, does not mean that I don’t feel tremendous sadness when these things happen. I think we’ve made significant progress, but we’re not a colorblind society, and there still is racism. There’s no denying of that. And I would add for example that if you have brown skin, in some places these days where state laws have changed, you’ve got a feeling that, you know, this is a little different. So we have to work these things out, and it’s tragic, it’s completely tragic. This is not an isolated case, this happens on the streets of the United States way too much, there’s no question about it.

Now, as it relates to national identity, I think we do have something that other countries don’t, and that’s that we have ideals. And if those ideals are not met, then we need to have a conversation about that. But the idea of having a race-based national identity, like Japan does, or most of the Asian countries do, is a serious problem for them today. Japan is going to be in complete decline because its population is not going to be able to grow. They have a fertility rate that’s closer to one, and immigrants aren’t really allowed because race is their means by which they identify. It’s a beautiful culture, incredible history, but if they can’t open up and create a different standard of measuring nationhood, they’re going to be in serious trouble. I think we have that advantage, and when we go wrong, we should immediately say, ‘That is not an American value that just took place.’ And if we do that, I think we’re in a far better position.

While the crowd applauded, the man walked back to his seat and the next questioner began: “Governor, thanks for being here tonight, you’ve been a big hero of mine for quite some time….”

After the auditorium emptied out, I found the man who’d asked Bush what he thought about the Martin killing, Trinity business law and ethics professor William Burke.

“I felt it was my obligation to be here,” Burke said, “that he needs to know that there is no place where this question should not be addressed. And I think that fortunately he did recognize that it’s more than the application of the law.”

And so, it has to be addressed and it’s a serious problem and it’s just, even today, coming back from church after dropping my son off, I can’t help but look at the black kids walking to school, males, and they have their hoodies on. And this experience makes me look at them and worry about them. So that’s why I just wanted him to feel, it’s more than just an interpretation of a law. I mean, these barriers to survival have an impact on our culture, and the overall culture. You are dismissing contributions of people that can make a difference.

It’s the presumption that I could be just jogging and then if I bump into somebody, I don’t even have to have deadly force, they could use deadly force against me in Texas, and it would be upheld—and if you’re dead, it’s only one person’s word because the one that’s dead, even if they’re unarmed, there’s not a presumption anymore that they weren’t using deadly force or intimidating, even though they don’t have a gun or knife or anything like that.

As the crowd filed past us to the parking lots, Burke said that Bush wasn’t the only one he was trying to reach by bringing up Martin’s killing, or the law that could make it defensible.

“I really hope this is looked at again because I see it as just as vicious at the Emmett Till lynching for whistling at a white woman years ago,” Burke said. “I just think it’s important not only with the governor, but for the audience to know the depth of how this is significant to them.”

It’s exactly the kind of story, Burke said, that makes him worry about his three sons when they all move out of the house and into new cities.

“The kids always ask me, they say, ‘Dad, why are you still in a shirt and tie? … It is an armor. I mean, I wear it till basically I go to bed at the house—and that’s not the way that it should be. You look at Trayvon Martin and here’s a kid who’s intelligent, and just kind soul, A’s B’s loves math. You speak about the future, there’s a future there that’s lost,” Burke said.

“I was just hurt, I felt I had to be here to bring it up. It’s not just looking at the news nonstop. You think about it, and I hear, I hear his screams when he says, ‘No,’ and he shot him. And I think about my kids.”