Methodically, Rep. John Mabry (D-Waco) led Rep. Bill Zedler (R-Arlington) into the trap. It was May 27th, the waning days of the legislative session. The two men faced each other from opposing microphones across the House floor. The simple subject line of the bill they debated hid the depth of its implications. But thanks to the ACLU, most everybody on the floor knew the stakes the second the clerk read it: “SB 945 by Ogden relating to the manner of issuance of a driverÃ¢â‚¬â„¢s license or personal identification certificate by the Department of Public Safety.”
Underneath the leaden bureaucratic prose, the bill gave the DPS authority to compile a database of biometric imagesÃ¢â‚¬”everything from retinal scans to facial shapesÃ¢â‚¬”for every single driverÃ¢â‚¬â„¢s license applicant in the state. Winding its way through the process was House Bill 9 (that later passed) that gives the state police and any other government agency the power to establish secret cameras almost anywhere they want, except, thanks to a Senate amendment, in the offices of politicians. If SB 945 were to pass, the DPS could conceivably link its digital cameras to its new database, to be financed by increased license fees. As opponents noted, somedayÃ¢â‚¬”sooner than one would thinkÃ¢â‚¬”the DPS would have the surveillance power to move Big Brother from cliche to reality.
The two-word justification bandied about by SB 945Ã¢â‚¬â„¢s proponents was “homeland security.” Before the session, an interim commission headed by then Land Commissioner David Dewhurst had arrived at a number of practical suggestions on how better to protect the state without threatening civil liberties. The Republican leadership, egged on by the governorÃ¢â‚¬â„¢s office and the DPS, wanted more. But Gov. Rick Perry and the DPS were about to hit a roadblock on the way to their police state. It came in the form of a revolt from the Republican rank and file, spurred on by one of the most interesting left-right coalitions in recent memory.
Mabry privately delighted in the irony as he asked Zedler if he had read and signed the Texas Republican Party platform. The Arlington Republican, now wise to the destination of their exchange, insisted he had done so, but that didnÃ¢â‚¬â„¢t mean he supported “every jot and tittle of it.”
Mabry, a trial lawyer by trade, got Zedler to admit that the Republican platform had been written after the terrorist attack on the World Trade Center. Then he read aloud the personal confidentiality section of the platform. It calls for an end to the “ever increasing, incessant, recurring, and calculated gathering, accumulation, and dissemination of finger prints, Social Security numbers, financial and personal information of law abiding citizens by business and governments.”
“This bill would allow just the opposite,” said Mabry as Zedler slinked from the microphone. “It would allow the collection, and the accumulation, and the dissemination of personal information, fingerprints and social security numbers of law-abiding citizens in the state of Texas and you, as a Republican, by all respects should want to prevent that from happening.”
On many of the membersÃ¢â‚¬â„¢ desks were flyers distributed by ACLU volunteers at the House door as the lawmakers filed into the chamber. “Should Texans be forced to give up their personal privacyÃ¢â‚¬”including revealing personal facts like body measurements that allow the government to track us on video just to get a driverÃ¢â‚¬â„¢s license?” they asked. The flyers described the bill and listed the platform citation Mabry had read. All told, the civil rights organization visited 120 offices to lobby against the bill, about 30 of them twice. Eight volunteers worked on the issue. In addition, the ACLU had a significant, albeit junior partner in the effort: The Republican Liberty Caucus.
The ACLU was one of the few progressive public policy groups to meet with any success this legislative session. They did so by making an honest effort to pitch their message to Republican representatives on terms respectful and understanding of the prevailing ideology. In this vein, the ACLU adopted “Safe and Free” as its new motto.
“There is a strong liberty-loving cultural underpinning in Texas,” says ACLU Executive Director Will Harrell. “We stayed on that message and through that we enlisted allies that havenÃ¢â‚¬â„¢t been engaged in the process.”
To stop a slew of bills that would have closed public records or prevented cameras from being placed on traffic lights, the ACLU worked with the Liberty Caucus, the Eagle Forum, and the Combined Law Enforcement Association of Texas. And Republicans, despite their efforts, didnÃ¢â‚¬â„¢t get much expansion of police-state power this session.
Don Zimmerman, head of the Liberty Caucus found SB 945 “kind of sinister.” His members phoned and e-mailed legislators in an attempt to stop the bill. He also had the groupÃ¢â‚¬â„¢s logo placed on ACLU literature. Any negative attitude he may have had toward the ACLU evaporated when he realized, “these guys are for constitutional liberty.”
Back on the floor, Republican leaders could tell SB 945 was in trouble when members of their own caucus started attacking it on the back microphone. In particular, Rep. Brian McCall (R-Plano) noted that under SB 945 Texans would pay for the privilege of giving up their liberties.
The revolt had to be quelled. It was clear the bill was a priority for the leadership. On May 24, the bill had died on a point of order. Normally this late in the session that would have ended any possibility of passage. Instead, Chairman Frank Corte (R-San Antonio) convened a quick meeting of his Defense Affairs and State-Federal Committee to fix the billÃ¢â‚¬â„¢s problem and kick it back out. From there, the biometrics legislation received an unusual emergency return trip onto the House Calendar. Three days later, it was back on the floor for another vote.
It appeared to be no coincidence that Corte had been tapped to sponsor the bill in the House. The selection seemed to underscore the idea that someone higher up was pulling the strings. As one critic noted, Corte has long been a member of the “black helicopter crowd,” a militant against big government and in favor of privacy. For him to carry the bill gave it legitimacy it wouldnÃ¢â‚¬â„¢t otherwise have. In the same way this session, some of the worst bills that would have cut off public access to government information were sponsored by Sen. Jeff Wentworth (R-Austin) who until this year was a strong proponent of open government.
Another staunch defender of privacy, Rep. Warren Chisum (R-Pampa) had filed an amendment that would have effectively neutered SB 945 on Saturday, before it died on a point of order. But then inexplicably, Chisum withdrew the amendment. When the bill returned on May 27th, he became one of its fiercest advocates.
“We have terrorists living in this state and we have to identify them,” he told his colleagues. When confronted with the accusation that this would be a step toward Big Brother, Chisum replied: “This is Big Brother watching over your safety.”
After the debate, Chisum insisted he hadnÃ¢â‚¬â„¢t spoken with the Republican leadership about the bill. “I was really just trying to help Corte more than anything,” he said.
When Chisum couldnÃ¢â‚¬â„¢t get the job done, Rep. Arlene Wohlgemuth (R-Burleson), one of CraddickÃ¢â‚¬â„¢s top lieutenants strode to the microphone. “Mr. Chisum, have you and Rep. Corte and I not been at this microphone for years fighting bills that invade peopleÃ¢â‚¬â„¢s privacy?” she asked. “And you and I and Rep. Corte are voting in favor of this bill.”
But it wasnÃ¢â‚¬â„¢t enough. The revolt continued. A number of Republicans who had established working relationships with the ACLU over the session, such as Rep. Suzanna Gratia Hupp (R-Lampasas), argued against the bill. For one of the few times during the session, the Republican rank and file bucked their leaders.
“It was just educating people to know they hated it,” says Scott Henson, who helped mastermind the ACLUÃ¢â‚¬â„¢s plan.
In the end, the measure was defeated soundly by a vote of 111 to 26. The ACLUÃ¢â‚¬â„¢s Harrell says the relationships that the group developed this session with libertarian-minded Republicans will continue. “As we evolve and mature as a coalition we will be much more of a force to deal with,” he vows. “IÃ¢â‚¬â„¢m not naive enough to believe that we will agree on everything, but we will achieve on issues where we agree.”