Fighting Our Friends Won’t Defeat Our Opponents

At some point I hope that you will get as tired of reading posts that discuss Republicans fighting Republicans as I am tired of writing them. More importantly, my hope is that if we continue to shine a light on this self-defeating process, we will stop this infighting before we lose the next election.

By stopping the infighting, I do not mean that we should avoid vigorous debates and campaigns within our primaries. The party that promotes competition should relish it within its own ranks. No one—not even a long-time incumbent—is entitled to be re-elected simply because he or she currently holds the job; and no one is entitled to move up to another position simply because he or she has held another office. Seniority, itself, is irrelevant; we must constantly re-evaluate and judge a person’s actual judgment and performance over a wide-range of experiences. But, in making our choices and waging our primary campaigns, we should focus on ideas and substance—issues that build and strengthen our party and its principles for the real fight ahead: the general election and governing as a majority party. Tearing each other apart, and risking destroying the ability of our party organizations to function properly, merely to promote our own definitions of conservatism, or to be able to claim the mantle of “the most conservative” amongst us, is simply ridiculous, and, at a time like this, negligent.

On the very day that the Wall Street Journal reports that Obama and the DNC have raised over $150 million since April for next year’s campaign (far in excess of what Republicans have raised over the same period), and reports that unions and other Democratic-supporting independent groups intend to focus on state races, the newest fight from Texas Republicans is not against Democrats, but over a “scorecard” of Republican state legislators. Specifically, our newest squabble is over whether our state party must adopt a specific “scorecard” of our Republican state legislators prepared by a private organization pertaining to votes on 14 issues during the 2011 legislative session, and whether the party must publish that “scorecard” before the primary election in which those legislators will be running for re-election.

Unfortunately, it always is easier to throw accusations and create disputes than it is to rebut them factually. Facts are boring, and often take time to research, to write and to read. But, shedding light on the real facts underlying this latest tempest should help dispel some of the myths and misperceptions created by those who’ve started this argument, and may—just may—help to end this fight sooner, so we can get on with preparing for the real battles that we need to fight. So, I apologize at the outset for the length of this post, but I am going to try to address the real issues and facts involved in this current dust-up in two parts: 1.) the proper role of the Republican Party of Texas, the dilemmas posed by the platform plank at issue in light of the party’s bylaws and the limits of continuing authority of a convention committee chair, and the prudence of the steps the party leaders have taken to address the dilemmas; and 2.) an analysis of the actual legislative priorities contained in the platform plank at issue.

The Dilemmas

On the last evening of the 2010 convention, after many, if not most of the 6,000 delegates had left the hall to start their journeys home, the remaining business of the convention turned to the approval of the platform. So, when you hear some people say that the Republican Party of Texas is thwarting the will of 6,000 delegates with the steps it is taking to address the “scorecard” issue, please remember that, though the vote to approve the plank at issue was a legitimate act of the convention, it was not the considered product of 6,000 delegates. Instead, it was the product of a vote by a much smaller band of activists who remained in the hall until the last gavel fell, after a long, and sometimes bitterly exhaustive day in which the full convention selected a new Chair and Vice-Chair to repair the RPT financially and organizationally.

The history of the plank and the current dispute has evolved over a decade. Twice before, certain members of one faction within the party wanted the RPT to create a subjective scorecard of Republican elected officials to be published prior to primary elections, believing that such a scorecard could be used to cull those from our party whom the proponents thought weren’t conservative enough based on that faction’s definition of conservatism. On both prior occasions, legal opinions and the decisions of the Chairs (Susan Weddington and Tina Benkiser) interpreted the RPT’s bylaws as prohibiting such an action. The bylaw provision at issue states:

No Party funds or resources shall be used, either directly or indirectly, to influence intraparty contests.

On these two prior occasions, it was determined that a subjective scorecard of specifically-selected votes published by the RPT prior to a primary necessarily involved an indirect influence on intraparty contests.

The preamble of the 2010 platform plank now at issue states the following:

The SREC, Chairmen of Republican Party and Chair of most recent Platform Committee shall report the voting record of each state and federal elected official relative to these Legislative Priorities. The chair of the most recent Platform Committee shall present a draft of the report to the SREC no later than 180 days prior to each primary election. The SREC shall publish such report no less than 120 days prior to each primary election.

The timing of the submittal of the report described in this preamble is to be calculated based on the primary election date, and the clear intent of the provision is to have the report published in time to affect voters’ decisions in those primaries—those “intraparty contests.” Therefore, the express language of the plank creates a legal dilemma for the RPT—if it follows the instructions in the plank, it could be using party resources to “indirectly … influence an intraparty contest” in violation of its bylaws.

But that is not the only dilemma created by the most recent skirmish over a “scorecard.” Another dilemma is created by the fact that the plank places the responsibility on “the Chair of the most recent Platform Committee” to present the proposed report to the SREC. But, the term of the chair of any convention committee ends at the end of that convention—there is no present chair of that committee to prepare or present such a report. So, can the SREC legally recognize anyone, including the former chair of the committee during the 2010 convention, Rep. Wayne Christian, to present such a report?

The final dilemma is created by the nature of the report that was actually submitted by Rep. Christian to the SREC. Although no one I have contacted has actually seen this report, and I have not found a copy published anywhere, the descriptions from those who participated in the recent SREC meeting (or who profess to have inside knowledge of the report) all seem to agree that the report was draft by or for the Young Conservatives of Texas, and it addressed only 14 of the 46 legislative priorities listed in the platform plank. That means that the report that was submitted did not address all of the legislative priorities, and was prepared not by a committee or representative of the party, but by an outside organization that has its own mission and subjective viewpoint on the issues it evaluated.

In essence, Rep. Christian wanted the party to adopt an outside party’s subjective evaluations on 14 legislative votes as the RPT’s official report, and to have the RPT publish those subjective evaluations at a time designed to impact the primary next year. Such an act would place the party in the position of adopting one organization’s, or one faction’s, evaluation of candidates, which is not the proper role of the party. The proper role of the RPT is to conduct the legal business of the party outlined in Texas law, and to mobilize voters to vote and to elect the candidates we choose during the primary. Any proposal to inject the party into intraparty disputes reduces the party’s effectiveness to mobilize voters for the general election.

In light of the dilemmas posed by the language of the platform plank and the actual report submitted to the SREC, the Chair acted in a manner consistent with both the party bylaws and prior precedent. However, he went further than either Weddington, or Benkiser, had done to address the issue, and to address the concerns of those who want voters to be educated about the performance of our elected officials in the context of our party’s principles and platform. First, Chairman Munisteri has set up a committee to look into reconciling the bylaws with the platform. Second, he set up a page on the party’s website that voters can use to research legislative voting records: http://www.texasgop.org/legislative-records.

Additionally, I would propose that, with the right procedures, the RPT could publish all of the mission statements and scorecards of independent groups who have historically evaluated Republican officeholders and candidates prior to our primaries. However, the RPT should never take sides by presenting the subjective views of one group or faction as the official evaluation by the party of a primary candidate. And to those who want the role of the RPT to degenerate into that of a cheerleader for one faction of the party, remember history tells us that, if such a degeneration happens, the RPT most likely will evolve into just a puppet for the faction in power at any given time, and its incumbents—that is, a mouthpiece for a future status quo. Is that really what you want? If not, be very careful what you wish for.

The Platform Priorities

Ok, I told you this would be a long post. So, take a break if you need it now. …

Now that you’re back (or if you’re one of those hardy souls who decided no break was necessary) let’s look at the rest of the platform plank at issue—those 46 priorities—and how the Republican majorities actually fared. I would love to also look at just the 14 that the YCT evaluated, but, again, that evaluation has not been made public yet.

Let’s start by understanding something about these 46 priorities. None of them addressed re-districting and the budget shortfall—the two most fundamental issues the 2011 legislative session had to address. In fact, as you will see, some of these priorities dealt with how to deal with budget surpluses, which turned out to be irrelevant to the reality faced by our legislators in 2011. Therefore, this platform plank at issue was silent on two of the most contentious issues that took up most of the time of our legislators in 2011. And our legislators met the challenges presented by those contentious issues: they drafted and passed all four re-districted maps that preserved and expanded Republican majorities in the legislature, our Congressional delegation, and on the State Board of Education (a first in recent Texas history); and they passed a budget without raising taxes.

As for the 46 priorities listed in the plank, only one was expressly directed to the 2011 legislative session for immediate action. That first priority reads as follows:

We urge the Texas legislature in its next biennial session to enact legislation requiring a sonogram be performed and offered as part of the consent process to each mother seeking an elective abortion.

Again, none of the other 45 priorities urged specific action to be taken during the 2011 legislative session.

So, how did our Republicans do with this priority. Well, for specific votes you can go to the RPT link I gave you above, but, generally, they did what the convention asked them to do. The Governor made it a priority; at least two competing bills were voted on; and a bill was passed and signed by the Governor. That’s a pretty good start.

Now, let’s look at the other 45 priorities. I’ve grouped them into 8 rough categories: 1.) three single-issue priorities; 2.) two overlapping priorities related to voter IDs; 3.) seven priorities for elementary and secondary education; 4.) three priorities for the State Board of Education; 5.) nine priorities for the criminal justice system, primarily related to drug enforcement; 6.) ten priorities related to state spending and taxation; 7.) six priorities related to various regulatory issues facing the state; and 8.) five priorities dealing with immigration-related issues.

Here are the three, single-issue priorities:

• We urge the legislature to expand the protection for private property ownership in Texas to include the exclusive right to buy, sell or use any asset as the owner deems necessary.
• Oppose any effort to expand gambling.
• Pass legislation that will reduce restrictions on CHL holders.

Let’s take the last two priorities first. I know of no legislation that passed in the last session that expanded gambling. As for concealed handgun license holders, a bill was presented and debated to allow them to carry on college campuses. Believe it or not, there were concerns expressed even by conservatives about how to handle the potential introduction of legal guns on college campuses, and the decision was made to essentially put this issue off for further reflection. Though I am sure this issue will be revisited during the next session, you can find how your legislator voted on this bill by going to the above link to the RPT website.

As for the first issue, it so broad and general, that it could take decades to fully address all of the possible scenarios the Platform Committee was referencing with this plank. Moreover, there are so many bills that could impact this priority that it is hard to objectively begin to sort through every legislative vote to determine how a legislator “scored” on this priority. If it was drafted to address the Kelso opinion, it could have been more precisely drawn so it could be more objectively evaluated. As for the bill that was considered to address the eminent domain issue in Kelso, a study of the language of the bill and of legislator’s votes is instructive as to another problem with scorecards—some legislators did not vote for the bill because they thought application of the language would either have no impact on the problem or could have consequences that would create more harm in the future. But, to some, a “no” vote or an abstention, could be scored as not voting for the this priority.

The second category contained the following priorities:

• Enact legislation to require Voter ID.
• Secure the integrity of elections by verifying the citizenship of those registering to vote, requiring a photo ID to vote, and removing non-qualified voters from voter registration lists.

These priorities overlap and focus on the creation of a voter ID. Guess what, the legislature addressed these issues and passed the Voter ID bill, and the Governor signed it. Again, you can go to the RPT website and find the link to how our legislators voted on this issue.

On to the third category of priorities that address education:

• Expand the Public Education Grant (PEG) program. The PEG program should be replaced with a comprehensive, public-school choice program for which all students in Texas are eligible, regardless of the academic performance of their current school.
• Create a school-choice voucher program for all students who have special educational needs and are exempt from the Texas Assessment of Knowledge and Skills (TAKS) test under Education Code Sections 39.027(a)(1)&(2) and 39.027(b).
• Create flexibility for school districts under the class size limit mandate.
• We support having 80{997ab4c1e65fa660c64e6dfea23d436a73c89d6254ad3ae72f887cf583448986} of school district payroll expenses of professional staff of a school district be full-time classroom teachers.
• Exempt high-performing school districts from certain state mandates to reward the state’s best-performing schools and serve as an incentive for performance improvement.
• Clearly define the role of the state and the roles and responsibilities of the state and school districts in the public education system.
• Enact legislation to educate our children in accordance with our conservative ideals by removing our schools from federal control and restoring them to local control.

When evaluating any of our legislators on these priorities we need to keep in mind how difficult this session was because of the budget crisis, especially when it came to policies affecting our elementary and secondary schools. With the large budget cuts that had to be made to education, this simply was not the right session to try and tackle wholesale changes to educational policy. That being said, I have advocated, and continue to advocate that we use our current legislative majorities to work in committees between now and the next session to craft comprehensive educational reform, and I hope that our legislators will do that.

Having said this, the legislature did provide schools with flexibility as to the class-size-limit mandate, and provided school districts with the power to negotiate staffing in a way that should lead to a better teacher/staff ratio. As for the last two priorities, those are long-term, very general aspirations that can not easily be enacted into specific laws, or objectively evaluated on a vote-by-vote basis. Finally, the first priority seems to contradict itself by wanting to expand a program that it also wants to replace. If guys like me can’t understand what the Platform Committee drafted, is it wise to score our legislators for not addressing that priority?

The fourth category addressed the State Board of Education—always a popular topic among some in our party:

• Uphold the Constitutional and statutory roles of the State Board of Education.
• Protect the authority of the State Board of Education to manage the Permanent School Fund and control textbook content; [and] expand the cap on charter schools [sic].
• Strengthen and adequately fund the State Board of Education.

Maybe I missed something, but I know of no legislation that passed that diminished the role or authority of the Board. As for funding, no agency got what they wanted in this budget. To fault any legislator for not expanding the role of, or adding to the funding of any agency during the last session is to pit one conservative principle—fiscal responsibility and limited government—against the pet concerns of some for this specific Board. Again, let’s address education comprehensively over the next few years, but let’s not fault legislators for making hard budget choices during this last session.

The fifth category (we’re half-way through) deals with the criminal justice system, and focused a lot on drug enforcement policies:

• Construct prisons rather than reduce sentences.
• Require the Texas Department of Criminal Justice to register sex offenders when they leave custody.
• At minimum, maintain current penalties for drug related crimes.
• Reject needle exchanges.
• Repeal the Marijuana Ticket Law. House Bill 2391 (80R) allows police officers to issue citations for certain misdemeanors, including possession of up to four ounces of marijuana.
• Amend the Health and Safety Code to include synthetic marijuana as a controlled substance.
• Truth in Sentencing – fully inform juries as to the actual length of the sentence.
• Judicial Sentencing – empower our judges to assign punishment in felony cases.
• Law enforcement should make Child and Sex Abuse and Methamphetamine Drug Manufacturing their top priority. Stricter sentencing for Methamphetamine traffickers is needed.

We can deal with a few of these quickly: I am not aware of this legislature having reduced any penalties or sentences for any crimes; but, we had no money to build more prisons—so this was a false choice for the legislature in 2011. I am aware of no legislation that passed that promoted needle exchanges. My guess is that if you want to say such actions occurred, you would have to make a very subjective evaluation of the possible consequences of specific legislation or specific votes.

As for the marijuana statutes, I will have to defer to those who monitored the legislature more closely than me, but I am not aware of any change to state law—one way or the other.

Another priority—judicial sentencing—raises an important potential conflict for conservatives who believe in following the rule of law. Recently, the U.S. Supreme Court has been limiting the constitutionality of having state-court judges impose sentences in serious felonies. For instance, the Court recently ruled that juries, not judges, must impose the death penalty. Therefore, I would commend any conservative legislator for addressing this priority with caution.

The only other further comment I have is to look at the drafting of the last priority in this category. While child and sex abuse and the methamphetamine “industry” are serious issues, are they really to be the top priority for law enforcement—really? We elect legislators to make judgments. I hope they make these issues a priority, but I hope we don’t lose perspective about crimes like plain-old murder, rape and robbery, as well as our concern over organized crime and terrorism. If we keep our eye on the ball as to these issues, we will necessarily focus our attention on the specific problems the Platform Committee wants to address.

The sixth category addresses spending and tax issues:

• Amend the Texas Constitution with a tighter, more meaningful spending limitation based on population growth and annual inflation.
• Evaluate the performance of Texas’ public sector employees and expand the role of the private sector in delivering government services.
• Eliminate longevity pay for state employees.
• Make the $1 million Gross Margins Tax revenue exemption permanent; constitutionally dedicate revenue from the Gross Margins Tax to the Property Tax Relief Fund.
• Use surplus revenue and other available general revenue to buy-down state debt.
• Reduce the high levels of local debt by implementing a turnout requirement for bond elections and adding local government entities to the constitutional debt ceiling.
• Use dedicated funds for their intended purpose or return them to taxpayers.
• Surplus revenues should be constitutionally dedicated to reducing the Maintenance & Operations (M&O) portion of the school district property tax.
• Reject raising or indexing the gas tax.
• End diversions from the State Highway Fund.

I won’t dwell on this category too long, because so many of these priorities became irrelevant, or impractical to address, in 2011 due to the budget crisis. At least six of these priorities address use of surplus funds or specific funds, which could not be meaningfully addressed during the last session. The rest of these matters should be addressed as part of a long-term reform of the budget (that should lead to zero-based budgeting), but we had to get through the short-term crisis in 2011. I hope the legislature will start addressing these issues in committees during the rest of their current term, but they should not be objectively faulted for not addressing all of these issues in 2011.

The seventh category covers a hodge-podge of regulatory matters:

• Ensure that exemptions to Temporary Assistance for Needy Families (TANF) work requirements are appropriate so that the state is able to meet federal welfare-to-work targets.
• Expand retail electric competition to the areas of the state that are currently exempted.
• Create a free market for water to help meet future demand.
• Use the relatively light-handed regulation of the oil and gas industry as a model for the state’s water market.
• Limit the state’s licensing and regulatory role to one that seeks to protect public health; reduce the extent to which the state unnecessarily regulates the private sector economy when public health is not at risk.
• Support the continued transition to a competitive insurance market by retaining and strengthening reforms enacted since 2003. Property and casualty insurers need only be regulated for solvency, market practice, and fraud.

As for the first priority, I have to admit that I have no clue if the legislature dealt with this issue, and I’ll have to defer to others who more closely monitored the last session to answer that. However, the remaining priorities essentially ask the legislature to create and respect free markets for electricity, water and insurance, and to follow those principles generally when addressing regulatory legislation. These are aspirations that should generally apply to legislatures over the coming years. Except when it comes to the specific issues of electricity, water and insurance, determining whether a specific vote by a specific legislator complies with these aspirations requires a highly-subjective analysis of different and often conflicting concerns.

All three of these industries and markets will be scrutinized over the coming years by future legislatures. The real test will be the end-results of the legislation, not the individual votes taken to get there. If free markets are to be created with properly limited regulation, focus on the positions taken during the legislative give-and-take to get there may end up doing more harm than good—the pain of watching sausage being made, or the give and take of any negotiation process, often obscures the good that results from the process.

Finally, the eighth category addresses immigration:

• Provide the necessary funding and resources so that law enforcement personnel in border areas can combat illegal immigration and its negative effects on local communities.
• Create a state offense (Class A misdemeanor) for an illegal alien to intentionally or knowingly be within the State of Texas, and require local law enforcement to verify residency status upon arrest for another crime.
• Codify 37 Texas Administrative Code §15.171 so that state law requires driver’s licenses to reflect the immigration status of the holder.
• Provide that consular identification documents issued by foreign governments are not acceptable as proof of identification.
• Require proof of U.S. citizenship or legal residency from those applying to receive taxpayer funded public benefits.

Ok, let’s face it, the legislature ended up largely punting on immigration issues in this session. Not because they didn’t try, and not for a lack of bills. They punted because leaders of our own party, across every faction, are split on how to address this problem at the state level. And look at the impact that is having on Governor Perry’s race for the Presidency. These priorities may have reflected the consensus of the Platform Committee, and probably even of many of our grassroots activists, but it is still only a consensus, and there are a lot of different views on each of these priorities. Score our legislators on their votes, or their silence, on the immigration-related bills if you feel you must, but don’t pull the RPT into this debate when so many in our party are still conflicted over how to resolve this issue.

Well, there you have it, a review of the 46 priorities. It wasn’t easy to read through it all, let alone to begin an evaluation of our legislature generally. Think of how hard an objective evaluation of each legislator’s vote related to all of these issues in any given session would be, let alone how hard it would be to even determine what a related vote might be for some of the issues. The answer is not to make the party adopt a subjective analysis, the answer is to keep the party out of this process completely and let the intraparty contests be waged on a level playing field.

Let’s not put the RPT leadership in the business of subjectively evaluating our candidates and elected officials—that’s not their job, it’s our job as the primary voter. It’s the RPT’s job to get the people we’ve selected elected, and to do that they will need the trust of the candidates we select. To have that trust, they will need to know that the RPT hasn’t worked against them, and won’t work against them in the future.

Now, let’s focus on the real fight ahead.

UPDATE 10-16: Since the posting of this article, we received the comment of Tony McDonald, below.  He states that he was the author of the draft, and that he is an officer of YCT, but that his work was independent of YCT.  He also generally describes his approach to his preparation of the draft.  I would like to thank Mr. McDonald for providing us with this specific information.