August 13, 2003

By now you've probably heard that the remaining members of the Senate, in the absence of a quorum and without any clear indication of how they might enforce it, voted to fine the boycotting Senators up to $5000 per day starting on Thursday if they don't return to Austin. The Chron has a good report:

The stage for the fines dispute was set Monday when the Texas Supreme Court refused to grant a request from Dewhurst and Gov. Rick Perry for an order forcing the Democrats to return to the Capitol.

Dewhurst called the Republican senators into a three-hour, closed-door session Tuesday. Through narrow windows, reporters occasionally could see the senators arguing heatedly.

Sen. Bill Ratliff, R-Mount Pleasant, who had opposed the fines, stormed angrily out of the meeting and returned to his northeast Texas home. He declined to talk to reporters on his way out of the Capitol.

Sen. Ken Armbrister of Victoria, the only Democratic senator still in Austin, registered a vote against the fines on the Senate floor. He quickly left the Capitol.

In Albuquerque, the runaway senators huddled around a computer screen to watch the Senate session in Austin over the Internet. The runaways wisecracked before hearing the proposed sanctions.

"I went from chairman of criminal justice to the chain gang," said Whitmire, who chairs the Senate Criminal Justice Committee.

Others in the room broke into a chorus of Sam Cooke's Chain Gang.

The mood grew more somber, and some senators groaned, when they heard Sen. Jane Nelson, R-Flower Mound, announce the fines.

Nelson's resolution gives the boycotting senators until 4 p.m. Thursday to return to the Capitol. The fine is $1,000 for the first day, then doubles each day until it reaches $5,000 a day -- or a total of $57,000 by the special session's end on Aug. 26.

The resolution also says the Democrats must pay their fines out of personal funds, so they cannot use political donations.

There was immediate confusion about what will happen if the senators refuse to pay the fines.

Dewhurst three times said the senators would not be allowed to vote in the Senate until they paid the fine.

"Prior to them coming back and voting, we expect them to pay the fine," Dewhurst told reporters on one occasion.

Then Sen. Florence Shaprio, R-Plano, interjected, "I'm not sure we can deny them the vote, but we haven't made that decision yet."

Dewhurst spokesman David Beckwith later said no decision on enforcement has been made. Beckwith said if the boycotting senators do not pay the fines, they may be denied Senate floor privileges or have their office budgets cut.

Both sanctions have problems.

Under Senate rules a senator can only be denied floor privileges on a two-thirds vote of the 31-member Senate. That would require at least one vote from among the boycotting Democrats.

The problem with cutting the senators' office budgets is that the full Senate on June 2 passed a resolution establishing the budgets. That resolution might have the force of law until overturned by another resolution, which only could be passed with the full Senate in session.

Even Owen thinks the fine is against Senate rules. File this under It'll Never Happen. Amazingly, Lt. Gov. Dewhurst still seems to think that everything will be peachy when the Dems return to Austin.

As senators gathered for the private meeting, two leadership sources said there was considerable consternation about imposing fines.

"Nobody wants to see the Senate change," said one source close to the talks, "and there's a fear this could be a permanent change to the Senate."

Heading into the meeting, Sen. Jane Nelson, R-Lewisville, said the Democrats should get the blame.

"I think they have significantly . . . harmed this body by doing what they've done," she said. "We've got to stop this, and if it takes fines to get them back to take care of our business and go home, that's what we need to do."

Dewhurst said the ongoing battle, now including fines, would damage Senate bipartisanship "not in the slightest."

I wonder if Texas Monthly might want to reconsider its Best and Worst Legislators list about now.

And hey, according to Governor Goodhair, the fun isn't going to end any time soon.

Republican Gov. Rick Perry, voicing support for GOP senators' decision to fine Democrats who fled to New Mexico to block congressional redistricting, today indicated he will call continuous special sessions until that issue and others are resolved.

"If there is work to be done, I expect the Legislature to be here conducting it," Perry told the American-Statesman. "There is work to be done."

Asked if that means continuous special sessions, Perry said, "You can surmise that."

Well, you know what they say the definition of insanity is...

In related news, just as the American GI Forum announced that it would have to close its Dallas office due to the loss of $300,000 in government funding that they say is payback for opposing redistricting, the Governor's office has announced that the funding has been restored. Via Byron.

Elsewhere, the Justice Department released an inspector general's report that said that with one exception, FBI agents and Justice officials ignored requests from Republican lawmakers for assistance in tracking down the Killer D's in May.

Despite the pressure by Texas Republican leaders, several Justice Department officials quickly determined the partisan issue was a "hornet's nest" and that federal involvement would be "wacko," according to an official quoted in the report.

The inspector general found that a lawyer in DeLay's office contacted Assistant U.S. Attorney General William Moschella on May 13 to inquire about help in locating the lawmakers.

The lawyer, unnamed in the report, also contacted Johnny Sutton in San Antonio, the U.S. attorney for the Western District of Texas. In both cases, Moschella and Sutton said the federal government wouldn't get involved.

Well, good for them. Thanks to this fiasco, new rules will be put in place to ensure that this is the default response in the future. But before you feel too good about this, read what Amy Sullivan found in the report.

Rob Booth is looking for online confirmation that a private citizen in Sen. John Whitmire's district has filed his own writ of mandamus, claiming that with Whitmire in Albuquerque, he's being denied representation in Austin. Sounds like crackpottery to me, but hey, you never know. Drop Rob a line at rob(at) or leave me a comment here if you find anything.

Doug has a suggestion for nonpartisan redistricting that doesn't depend on a commission. I haven't taken the time to compare his idea to the March 2001 Texas Legislative Council report called State and Federal Law Governing Redistricting in Texas, which Hope linked to awhile back, but don't let that stop you from doing so.

Ginger has some thoughts about the racial aspects of redistricting, and why this makes her feel disfranchised (yes, that's the right word).

Morat mentions that the Senate action may have violated state Open Meetings law in addition to being done without a quorum. I see now that the Quorum Report also brought this up yesterday.

Finally, a bit of humor from The Lasso:

JUST ANOTHER GOVERNOR'S DAY: Lasso was up and about early Saturday morning, buying a new pair of shoes and some cheap Terminator shades. Walking to the check-out counter, Lasso heard the sales clerk ask, "Are you going to the rally?"

Lasso looked up and saw a guy, sweaty as a field hand, with a towel and a water bottle. It was. . .

The Governor.

The Governor asked, "What rally?" The clerk said the anti-redistricting rally set for later that morning. The Governor said he didn't think he would be attending, that "they can rally until Hell freezes over; we're going to do what's best for Texas."

The clerk then told The Governor that the good people of McAllen didn't know anything about Austin, Texas. The Governor disagreed. The two appeared to know one another. She called him "Guv." He smiled. She said she had relatives in the Valley and she could assure The Governor that the two places — McAllen and Austin — didn't belong in the same Congressional district. The Governor moved away.

All this left Lasso with a question: What is it about these West Texas boys? They like to talk about the virtues of digging ditches and drinking well water back home, but when they come to the People's Republic of Austin they get to buying Popsicle-colored jogging shoes and sipping city water from clear plastic bottles?

Hee. Via the permalinkless ToT.

UPDATE: I've added a few links to other blog posts since I first published this. Even I can't keep up with all of it sometimes!

Posted by Charles Kuffner on August 13, 2003 to Killer D's | TrackBack

It don't look good. But then again, as Yogi put it, "It ain't over till it's over."

Posted by: Charles M on August 13, 2003 1:51 PM

Can the Senate levy fines against it's members without a quorum present? I thought the lack of a quorum prevented all business.

Posted by: Morat on August 13, 2003 2:30 PM

Article 3, Section 10 of the Texas Constitution says, in its entirety,

"Two-thirds of each House shall constitute a quorum to do business, but a smaller number may adjourn from day to day, and compel the attendance of absent members, in such manner and under such penalties as each House may provide."

The Attorney General has opined that this means the Republicans (the "smaller number") can impose fines on the absent members. Personally, I disagree, unless such fines had been voted on previously and were an established part of the Senate rules ("as each House may provide").

Posted by: Doug Haunsperger on August 13, 2003 2:58 PM

Hey, this way the GOP can show they're doing something about the budget problems...

Posted by: Lis on August 13, 2003 4:26 PM

FWIW, Rep. Scott Hochberg (D-137), with about a dozen authors and co-authors from both parties, has introduced a bill to form a bipartisan redistricting commission. It's HB 49 in the current session, and I haven't had a chance to read it yet. Maybe it's a start to avoiding train wrecks like this in the future. Maybe not. Who knows if it will go anywhere, even if a civilized arrangement were made for the Texas 11 to return (which at the moment looks pretty unlikely), or if Perry would sign it if it did make it through the process. But I'm glad someone is thinking long-term here.

Posted by: Steve Bates on August 13, 2003 5:13 PM

Oh, and this struck me as odd...

The fine is $1,000 for the first day, then doubles each day until it reaches $5,000 a day...

$5,000??? Have I forgotten my powers-of-two or something?

Posted by: Steve Bates on August 13, 2003 5:19 PM


The Attorney General has opined that this means the Republicans (the "smaller number") can impose fines on the absent members. Personally, I disagree, unless such fines had been voted on previously and were an established part of the Senate rules ("as each House may provide").

Actually, Abbott makes a very good argument that this isn't true. He points out that the language concerning quorums in the Texas Constitution was lifted from the US Constitution, and the US Constitution's provision has been interpreted to allow the asessment of penalties even when a quorum is not in place.

However, the Texas Senate Rules DO NOT allow for this kind of business to be conducted. It states:

1) The Rules may not be changed without a majority vote under a quorum, and

2) All that may be done without a quorum is a roll call, a call for absent members, or an adjournment or recess.

Either of these rules makes it a violation for less than a quorum to pass fines on absent legislators. So the real question becomes not what the Texas Constitution says, but how the Constitution and the Senate Rules interact. I don't believe that the Texas Senate can ignore the Senate Rules and make a direct appeal to powers granted under the Constitution, especially when they are, admittedly, quite vague.

Posted by: Owen Courrèges on August 13, 2003 6:06 PM

A truly democratic thing to do would be to let the voters decide if they want redistricting during the next election. Anyone who calls for a special election or session without a clear and present emergency shows how little they care about their constituents time and money. You can tell California the same thing.

Posted by: carla on August 14, 2003 1:26 AM

The repugs keep on showing that Yogi had it wrong: it's over when it's over only if the repugs like the outcome; otherwise, they'll keep on playing.

Posted by: P. Clodius` on August 14, 2003 8:56 AM

Must amusing angle on this debacle I've read recently. From the NRO's group blog, The Corner:

Arnold Schwarzenegger:

"There comes a point when the people must demand more of our elected officials than just showing up."

The response from one Texan (suffering through the spectacle of his elected representatives holed up in New Mexico and Oklahoma).

?Oh, dare to dream.?

Posted by: B. K. Oxley (binkley) on August 14, 2003 11:29 AM