Sheltering Hypocrites


It’s public knowledge at this point that the radical Republicans who currently direct the Texas Legislature are propped up by an exclusive clique of favored lobbyists. These men are essential because they ferry campaign cash from their select corporate clients to the leadership. The money serves as high octane fuel for the revolution underway—the goal of which is to dismantle state government as we know it. While these radical-right ideologues and their corporate patrons are already logical bedfellows, it is the small band of insider lobbyists who serve as the essential glue to bond this union.

Texans who were paying attention during the regular legislative session saw the results of this power-marriage. A full slate of corporate-friendly legislation passed including: a recasting of the civil justice system into the most corporate-friendly in the nation, insurance giveaways, a loosening of Texas’ already lax regulation of environmental polluters, and plenty of pork for highway contractors. The centerpiece of the program was the Republican pledge of “no new taxes†despite a $10 billion deficit. In reality, the truth behind the mantra was “no new taxes for corporations.†(Even Gov. Rick Perry, who had made a public show of criticizing loopholes in the business franchise tax, quickly crawfished in favor of his moneyed patrons.)

The irony, of course, is that Texans will pay more to make up for the budget cuts enacted in Austin. They will pay more to support the public hospitals forced to serve the children who lost health insurance. They will pay more to counties and municipalities struggling to make up for the state dollars they have lost. They will pay more in inflated insurance premiums. They will even pay on the highways as crony companies get the right to build toll roads and collect the fees. In the years to come, all Texans will experience the results of the 78th Legislature in a precipitous drop in the state’s quality of life.

Many of the lobbyists who are shaping Texas’ future are former legislators themselves. It’s a time-honored tradition in Austin. After serving the state for a pittance, they get to put the knowledge they’ve accrued to the benefit of private industry, often for a six-figure income. If they were long-serving legislators, they also receive a government entitlement that has been an open secret at the Capitol. That’s because, under Texas law, any legislator who is in Austin at least eight years can linger on the state’s health plan as long as he wants. Imagine working at Dell for eight years, leaving the job at 40, and remaining on the company health plan until you draw your last breath.

As it became apparent what was happening early in the legislative session, it occurred to us here at the Observer that it would be useful to know which former legislators-turned-lobbyists were taking advantage of this lifetime health care provision. Wouldn’t it be an irony if the very same elite lobbyists who are helping to strip health insurance away from low-income Texans, teachers, and state employees are benefiting from state programs themselves?

The agency in charge of the state’s healthcare program is called the Employee Retirement System of Texas (ERS). It is perhaps the state’s most secretive agency. And not without reason. ERS harbors health insurance and medical records for all state employees enrolled in a benefit plan, including many well-known elected officials. But it’s still a state agency, funded with your tax dollars, and it shouldn’t be sheltered from the Texas Open Records Act. That’s what we believe anyway. ERS sees it differently.

Back in January, the Observer submitted an open records request to the ERS that asked for the names of all former state legislators who were benefiting from lifetime health care on the public health insurance plan. We thought this information was clearly public. After all, these are former elected officials participating in a state-funded program. ERS officials disagreed and decided to stonewall. ERS claimed that gathering the information we requested would cost us $5,180. At the same time, the agency asserted that the records we asked for were private and thus exempt from the open records law. So, before making us pay, ERS officials submitted the case to the Attorney General’s office for a ruling on whether the documents were public. This made sense. Why would we fork over $5,180 for information that might never be available?

Little did we know we had unwittingly stepped into a bait and switch. In April, ERS withdrew its request for an AG ruling. Nobody ever informed us that our records request was no longer in play. ERS later claimed that because we had never indicated our willingness to pay the $5,180 that it wasn’t obligated to continue the process. This, we subsequently learned, was a violation of the rules. ERS had mixed two separate clauses of the Texas Open Records Act, an error for which the Building and Procurement Commission, which oversees state billing procedures, later chastised ERS. For the next six months, we wrestled with the agency.

ERS continued to insist that we were asking for confidential material, such as health insurance enrollment forms, that it couldn’t release. We repeatedly pointed out that we simply wanted the list of names, not private medical records. After three more open records requests and another protracted battle before the AG’s office, we lost. Attorney General Greg Abbott, who takes pride in portraying himself as a great defender of the public’s right to know, ruled against us.

But delays and obstruction apparently were not enough for the ERS to safeguard its secretive ways. In May, the legislature passed House Bill 2359, an omnibus ERS measure. It ensures the information we sought is forever lost behind a curtain of confidentiality. In Senate committee, a stealth amendment was tucked into this massive legislation. The provision allows ERS to ignore any open records request involving its benefits programs. Nor is the agency required any longer to seek an opinion from the AG’s office. As of September 1, ERS can literally toss such open records requests into the trash.

ERS argues that this law doesn’t shield documents but simply saves the agency the hassle of obtaining an AG opinion about clearly private records. Lucky them. But what about the public? The privacy of ERS’s clients must be balanced against the public’s right to know. Many of the records ERS maintains are clearly confidential. We don’t care about Gov. Rick Perry’s dental x-rays. But exempting the entire system from public scrutiny is dangerous policy. Surely, ERS records contain information the public deserves to know—like, for instance, whether high-paid lobbyists, while helping to craft public policy, are receiving lifetime health care at taxpayers’ expense.

Unfortunately, many state agencies, like ERS, are finding creative new ways to fight the open government law, from the governor’s office’s refusal to release its budget documents to the Health and Human Services Commission shielding details about major state contracts with private companies. In fact, officials at the Building and Procurement Commission said that other state agencies had used the same bait-and-switch maneuver that ERS pulled on us. The consequence of this trend is not only a secretive government but an increased chance that the public trust, not to mention public money, will be abused.

In the end, our eight-month scrap with ERS yielded little. ERS officials did tell us that nine former legislators enjoy the lifetime health-care entitlement. We assume some of these people are lobbyists. But we were never able to obtain the list of names. ERS officials are adamant that these golden parachutes for retired state lawmakers don’t cost the state any money. While former legislators receive health insurance at the state’s discounted group rate, ERS officials maintain, all nine pay the full premium, at no expense to taxpayers. It’s possible that leaving these former legislators on the state plan increases the ERS’ client pool and therefore helps the state snag better group rates. But if more is better, why don’t more state employees have access to this perk?

The former legislators may argue that access to the state’s health plan is part of their reward for working in the public sector. That’s a thin defense. Last session, right-wing lawmakers justified cuts to the Children’s Health Insurance Program by accusing many of the low-income families on CHIP of bolting private health plans to mooch off the state. Meanwhile, the favored high-dollar lobbyists of those very same lawmakers eschew private insurance to remain on the state’s health plan.

Sadly, the question of who among these legislator/lobbyists are hypocrites—benefiting from state health insurance they could afford to pay, while shutting out the same benefits for low-income Texans—remains unanswered.