Political Intelligence

Paper Enforcement

The 78th Legislature has been an abysmal steward of the natural resources of Texas. If a recent meeting of the House Environmental Regulation Committee is any indication, it could get worse.

The committee gathered on April 27 to hear testimony on compliance history, one of the few industry wish-list items that failed to pass last year. A reform from the 2001 session, the compliance history statute simply directs the Texas Commission on Environmental Quality to score each facility’s environmental record. The agency then uses those ratings in permitting and enforcement. The worst polluters are watched more closely and penalized more heavily.

The TCEQ’s head of litigation, Paul Sarahan, told the committee that of the 215,000 permitted facilities in the state, 35,000 hold a high rating, 28,000 are average, 2,000 are poor, and 150,000 are “average by default,” meaning that the TCEQ hasn’t inspected them in the last five years. Many of these facilities emit hundreds of tons of toxins into the air each year.

Some people might find it alarming that 70 percent of the state’s potential polluters go virtually unchecked, but the three Republican committee members in attendance were more concerned with whether the 2,000 facilities that scored poorly truly deserved that rating. They seemed to think that many of those 2,000 aren’t chronic polluters but honest businesses that just didn’t mail the right forms. “Is that [poor rating] necessarily a fair representation of the job those small businesses are doing?” asked Republican Chairman Dennis Bonnen, an insurance salesman from Angleton.

“You’d have to look at each case,” Sarahan said. Some, he explained, don’t know the requirements, while others are serial polluters.

“So, not to put words in your mouth,” said Bonnen, who proceeded to do just that, “it’s probably not [representative] because if each is different, then there are some where it’ll be fair and some where it’ll be a little unfair. When you say requirements, you’re talking about paperwork, right? We’re not discussing necessarily actual violations in most…in some of these instances. I mean, you could be a low performer because you do a bad job managing your paperwork. Is that right?”

“That’s possible,” Sarahan said.

Rep. Wayne Smith (R-Baytown) chimed in to support his chairman, “If you mismanage your paperwork, for instance if you…”

Bonnen interrupted: “Let me stop you right there. I’m not saying mismanagement of it. I’m simply saying not getting the right form in or not dotting the right I or the right T.”

Smith: “If you initial it instead of signing it, that’s a violation.”

Bonnen: “Bingo.”

Sarahan then pointed out that penalties for paperwork mistakes are comparatively small. The committee wasn’t convinced.

Smith: “But [notices of violation] do impact the equation, even if it’s just paperwork, as Chairman Bonnen indicated.”

Bonnen: “Actually, our exchange was a good example … you know, mismanagement. All of a sudden, somebody who’s initialing something instead of signing it is a mismanager.”

Back on planet Earth, under the TCEQ’s rating system, a notice of violation for a minor paperwork error is only a one-point penalty (as opposed to, say, a court-ordered fine for a major toxic release, which is 160 points). To earn a poor rating, which means 45 points or more, through botched paperwork alone, one would have to be quite the mismanager.

Bonnen then called for invited testimony from two witnesses, one from the Texas Association of Business and the other from the Texas Chemical Council. Jon Fisher, the longtime face of the chemical council, presented the committee with a litany of desired changes to the compliance history statute. He concluded with a slight smile, “We’d also support just eliminating it entirely.”

A Prayer for Relief Answered

An Austin atheist group’s eight-year crusade to gain recognition as a religious organization under the state tax code–and to free itself from grandstanding politicians–may finally be near its end. The Texas Supreme Court recently refused to hear an appeal by the comptroller’s office that the Ethical Society of Austin shouldn’t qualify as a religious organization because it doesn’t worship a deity.

The 60-member, nonprofit Ethical Society practices a set of beliefs known as “Ethical Culture,” aspiring to ethical behavior and humaneness instead of worshiping a god. The Ethical Society functions very much like any other religious group. It holds weekly services and gathers for special ceremonial rituals such as weddings.

In 1996, the Ethical Society applied for the tax-exempt status granted to many other religious organizations. At first, the comptroller’s office, then run by Democrat John Sharp, denied the request. After the group submitted more information, the comptroller’s office formed a committee to study the application. The committee concluded, after reviewing several U.S. Supreme Court cases, that the Ethical Society qualified as a religious group and deserved equal protection. No sooner did the group learn of its impending victory than Austin American-Statesman reporter Ken Herman wrote a story headlined “Godless Group Gets Religious Exemption.” Sharp promptly crawfished, reversing the decision, so the Ethical Society, aided by the Texas ACLU, went to state court. “The whole thing has clearly been shamefully politicized,” said Pete Kennedy, one of the attorneys who represented the Ethical Society.

The comptroller’s office argued in court that a religious group, by definition, must believe in a god. Attorneys for the Ethical Society and the ACLU dubbed this the “Supreme Being Test,” noting that no such stipulation appears in either Texas’ tax or administrative codes. They also contended that the Ethical Society fulfilled every one of the state’s legal requirements to earn a religious exemption.

The state trial court agreed. “The search for something beyond the power of humankind is exactly how ESA treats its pursuit of the Ethical Ideal,” wrote District Judge Paul Davis in his opinion. “This ‘ideal’ is a goal to strive for; it is a mystery, an ultimate concern, a power beyond an individual. The evidence before the Court indicates that ESA acts like a traditional religious organization in its pursuit of this ideal.”

The comptroller’s office also lost before the 3rd Court of Appeals. After losing once in the Texas Supreme Court, the state’s attorneys plan to file for another hearing. Comptroller Carole Keeton Strayhorn has vowed to take her case all the way to the U.S. Supreme Court–no matter that the appeal likely doesn’t, um, have a prayer.

“In a sense, it is like shooting ducks in a barrel,” Kennedy said. “But they won’t give up.”

In a statement released by her office after the ruling, Strayhorn described a doomsday scenario in which “any wannabe cult who dresses up and parades… on Halloween will be applying for [a tax] exemption.” Meanwhile, the Ethical Society has seemingly saved itself a few bucks and, in the process, struck a blow for religious acceptance, if not political decency.

Raspberry Time

When it came time for the House to discuss school finance, Rep. Tommy Merritt (R-Longview) was ready to strike a blow for East Texas independence. Earlier in the year, Merritt failed in his bid to replace Sen. Bill Ratliff (R-Longview). The defeat came in part because the state Republican establishment–of which Governor Rick Perry is the titular head–endorsed his opponent and ultimate victor, former mayor of Tyler and now-Senator Kevin Eltife (R-Longview).

As part of the campaign against him, Merritt was savagely attacked on the radio and in direct mail by a Virginia-based outfit called Americans for Job Security [see, “Meet the Attack Dogs,” March 12, 2004]. AJS and Gov. Rick Perry happen to share the same political consultant–New Hampshire native Dave Carney, but AJS insists that there is no connection between its campaign against Merritt and the governor’s office. If there were a connection, it could be a violation of the law, because the group is not allowed to spend corporate money specifically to defeat a political candidate. (The origin of the money used to smear Merritt remains hidden.) Instead, AJS insists it was simply educating voters about Merritt’s record on taxes as any other advocacy group would. Merritt’s greatest sin, the group told Republican primary voters in the first senate district, was that he proposed raising some sales taxes to help finance education in Texas.

A few months after Merritt’s defeat, Perry and Carney–along with two big campaign donors and a few ideologues–went on a trip together to the Bahamas. There, some believe, they hatched the plan for the school finance special session. And guess what? One proposal being seriously kicked around is to raise sales taxes to pay for education.

One couldn’t blame Merritt for wanting to educate his fellow members on the political danger of voting for such a tax increase, but Merritt decided he could do that and actually try to pass a little good government legislation as well. He proposed an amendment to House Bill 1, the school finance plan, that would essentially mandate a McCain-Feingold like system for local school board elections to prevent groups like AJS from targeting just one candidate. Instead, advocacy groups like AJS would have to campaign in 80 percent of the school board elections in the state. In addition to the amendment, Merritt handed out to fellow legislators copies of the direct mail used against him and the Texas Observer article on AJS.

“They should have taken me out when they had the chance,” said Merritt.

Then the House leadership ended debate and Merritt’s amendment along with about 200 others died before getting a vote. It seemed that independence will have to wait for another day.

Protected Speech

When U.S. Supreme Court Justice Antonin Scalia speaks, you can’t listen. That was the message when the Court’s most controversial justice swung through town on May 12 to address the 5th Circuit Bar Association’s annual conference at a ritzy north Austin hotel. Admission was strictly limited to judges and big-time attorneys who are members of the 5th Circuit Bar Association. We learned this the hard way when an intrepid Observer reporter tried to attend the gathering with the goal of documenting Scalia’s speech.

Scalia, rhetorically a staunch defender of the First Amendment’s free-press protections, forbids anyone to record his speeches and rarely allows media to attend his appearances. He once barred television cameras from filming his acceptance of a free-speech award. During a recent Scalia appearance in Hattiesburg, Mississippi, a U.S. Marshal forced two newspaper reporters, one working for the Associated Press, to erase their tape recordings. The AP filed suit against the U.S. Marshal’s office for violating the First Amendment. In wake of the controversy, Scalia apologized and modified his policy to allow print reporters to record his remarks, though he still won’t permit cameras.

Our reporter made it into the ballroom and sat down, but was kicked out by a U.S. Marshal just before Scalia entered for not sporting a bar association badge. The scribe ventured to the registration table to obtain said badge, only to learn that the event was closed to the press. Slinking back toward the ballroom, he was cut off by the same U.S. Marshal, this time accompanied by three burly agents, none of whom appeared to have necks. “Who told you about [the speech]?” the officer demanded. “Was it the Associated Press?”

The browbeaten reporter replied that the AP was not the source of the information, but he refused to reveal who was. The officer then made it clear that the conference organizers had decided to close the speech to the press, not the U.S. Marshals or Justice Scalia. Two hulking agents then escorted the Observer reporter off the premises. As he left, he could hear the voice of one of the country’s most powerful men booming behind the closed doors.