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April 15th, 2021:

More on the corporate response to voter suppression

It’s an encouraging start, but there’s an obvious next step that has so far not been mentioned.

With Republicans in Texas and other states continuing to advance restrictive election legislation, corporate chieftains around the country have stepped up their efforts in recent days to oppose such laws and defend voting rights.

Two prominent Black executives are enlisting major corporations to sign a new statement opposing “discriminatory legislation,” and PayPal and Twilio said Monday that they had agreed to add their names. Google, Netflix, BlackRock and Ford Motor will also sign, according to people familiar with the situation. Other companies were in discussions to do so, two people familiar with the deliberations said.

A group of major law firms formed a coalition “to challenge voter suppression legislation.”

And a film starring Will Smith and financed by Apple pulled its production out of Georgia on Monday in protest of the state’s new voting law, a warning shot to other legislatures.

“Corporations are always reticent to get engaged in partisan battling,” said Richard A. Gephardt, a Democrat and former House majority leader who is in conversation with corporate leaders about their responses. “But this is about whether we’re going to protect the democracy. If you lose the democracy, you lose capitalism.”

[…]

The Texas bills were central to a discussion on Saturday afternoon when more than 100 corporate leaders met on Zoom to discuss what, if anything, they should do to shape the debate around voting rights.

Several on the call, which was organized by Jeffrey Sonnenfeld, a Yale professor who regularly gathers executives to discuss politics, spoke forcefully about the need for companies to use their clout to oppose new state legislation that would make it harder to vote.

Mia Mends, the chief administrative officer at Sodexo, who is Black and based in Houston, called on the other executives to focus their energies in Texas, and said she was doing the same.

“One of the things I’m doing this week is getting on the phone with many of our leaders to say: ‘We need you to take a stand. We need your company to take a stand,’” Ms. Mends said in a later interview. “And that means not just saying we support voting rights, but to talk concretely about what we need, what we’d like to see change in the bill.”

[…]

Like Georgia, Texas is an important state for big business, with companies and their employees drawn in part by tax incentives and the promise of affordable real estate. Several Silicon Valley companies have moved to Texas or expanded their presence there in recent years.

Apple plans to open a $1 billion campus in Austin next year, and produces some of its high-end computers at a plant in the area.

In December, Hewlett Packard Enterprise announced that it would move its headquarters from California to the Houston area, while the software company Oracle said it would take its headquarters to Austin. And last month, Elon Musk issued a plea on Twitter for engineers to move to Texas and take jobs at SpaceX, his aerospace company.

Mr. Musk’s other companies, Tesla and the Boring Company, have also expanded their presences in the state in recent months.

None of those companies have so far voiced opposition to the Texas legislation. And at least for now, there is little indication that the growing outcry from big business is changing Republicans’ priorities.

“Texas is the next one up,” said one chief executive who attended the Zoom meeting but asked to remain anonymous. “Whether the business commitments will have a meaningful impact there, we’ll see.”

Again, all of this is encouraging, and unlike Georgia this has all happened before the bad bills have been passed, which allows for the possibility (however slim) that they may not be. Before I get to what’s missing, there’s another group that has gotten engaged in the fight: big law firms.

Some 60 major law firms are uniting around an effort “to challenge voter suppression legislation and to support national legislation to protect voting rights and increase voter participation,” Brad Karp, chairman of the heavyweight law firm Paul Weiss, told The New York Times.

Though the group has not been formally announced, Karp promised it would “emphatically denounce legislative efforts to make voting harder, not easier, for all eligible voters, by imposing unnecessary obstacles and barriers on the right to vote.”

The firms are teaming up with the Brennan Center for Justice, a nonprofit organization that has been tracking Republican legislation across the country, to strategize about which laws to file legal challenges against.

“We plan to challenge any election law that would impose unnecessary barriers on the right to vote and that would disenfranchise underrepresented groups in our country,” Karp said. As one might expect, that includes the Georgia law, which has invited a flurry of fallout already for both the state and the Republican lawmakers who passed it.

Michael Waldman, president of the Brennan Center, told the Times the coalition of law firms put lawmakers “on notice” that unconstitutional and legally flawed laws will almost certainly result in legal pushback.

“This is beyond the pale,” Waldman said of the GOP suppression laws. “You’re hearing that from the business community and you’re hearing it from the legal community.”

That’s from the same story. It’s great that there’s a promise of vigorous litigation as needed, but we’ll have to see how the courts respond. For obvious reasons, there’s no reason to believe that SCOTUS will take an expansive view of voting rights.

Which brings me back to the thing that’s not yet in any of these conversations, and that’s consequences. It’s great to see this resistance to what Georgia has done and what Texas is attempting to do, though there remain some holes in the fabric. (Per Daily Kos, HP has since issued a strong statement against the Texas voter suppression bills, so good for them. Apple and Elon Musk, you’re on the clock.) But what happens if and when Texas goes ahead and passes its bill? What other than some Hollywood productions not filming in Georgia happens there? If at the end, when Greg Abbott signs SB7 or HB6 into law, does everyone shrug their shoulders, say “well, we did our best, let’s hope the lawyers can do better than we did”, and go home? Because if that does happen, then frankly most of this will have been a waste of time.

I’ve said this a million times now, but the only message that these Republican lawmakers will ever respond to is losing elections. If there isn’t some level of commitment to vote Greg Abbott and Dan Patrick (and Brian Kemp) and as many of the complicit legislators as possible out of office, then the lesson they will learn is that this kind of response is basically a kabuki dance, with no real action behind it. If everyone who is enacting these anti-democratic laws is still in power in 2023 or 2025, then there’s not only no incentive for them to change their ways, there’s plenty of incentive for them to keep on keeping on.

So thank you for speaking up now. It does matter, and it is needed. But in the end, it can’t just be talk. If these bills get passed anyway, there needs to be action. I’d like to hear some talk about that now, too, so we’re all clear on that point. Axios has more.

UPDATE: Janice McNair, controlling owner of the Houston Texans and widow of GOP mega-donor Bob McNair, has signed on to the big corporate “stop voter suppression” team. Good for her.

First attempt to redefine the governor’s powers in an emergency

I’m still conflicted about this.

The Texas Senate backed a potential constitutional amendment Tuesday that would substantially rein in the power of the governor during emergencies like this past year’s coronavirus pandemic.

Texas voters would have to approve the amendment Nov. 2 for it to take effect. And before it could get on a ballot, the Senate action must still be approved by the House.

The amendment would require the governor to call a special session in order to declare a state emergency that lasts more than 30 days. The special session would give lawmakers the chance to terminate or adjust executive actions taken by the governor, or pass new laws related to the disaster or emergency.

The Legislature did not meet last year as the pandemic swept the state, so Gov. Greg Abbott addressed the largely unprecedented situation with executive orders and declarations spanning several months, citing the Texas Disaster Act of 1975.

Abbott issued what essentially amounted to a statewide shutdown order last year, and he kept in place some level of capacity limitations for businesses until early March of this year. In July, he mandated that Texans wear masks in public. He also used executive authority to lift other state regulations to help businesses struggling during the pandemic, such as allowing restaurants to sell groceries and mixed drinks to go.

But many state lawmakers say the Legislature should be the government body to make decisions that affect businesses and livelihood of Texans.

“Early on, people understood [business closures] because they’re like, ‘we don’t know what this is,’” Sen. Brian Birdwell, R-Granbury, said on the Senate floor. But as the pandemic and business closures wore on, Birdwell said the anger grew as the mandates continued.

Birdwell said if the governor believes the situation is dire enough that businesses need to close, then he needs to get the Legislature involved.

[…]

“I don’t see this Legislature being able to convene fast enough to answer … in the kind of disasters I have seen and expect the state to see in the future,” said Sen. Sarah Eckhardt, D-Austin, who used to serve as Travis County judge.

Meanwhile, a priority bill filed in the House would carve out future pandemics from how the state responds to other disasters.

That bill, HB 3, has not yet made it out of committee, but would allow the governor to suspend state laws and require local jurisdictions to get approval from the secretary of state before altering voting procedures during a pandemic.

Rep. Dustin Burrows, R-Lubbock, previously told the Texas Tribune that the proposal was meant as a starting point to map out responses in the event of another pandemic.

“HB 3 was trying to set structures, predicting the disaster or the emergency,” Birdwell said. “What I did was set a baseline…It is impossible to predict the disaster.”

As I’ve said before, I think the Legislature should have a say in these matters, and that calling a special session last year would have cleared some things up and maybe prevented a lawsuit or two. I think Sen. Birdwell’s proposed resolution is more or less okay, though I don’t trust his motives and I agree with Sen. Eckhardt about the Lege’s lack of ability to move quickly in times of crisis. Hell, unless we’re willing to allow a Zoom legislative session, having that special session I mentioned could have been a superspreader event. HB3 is completely off the rails – again with the fixation on preventing counties from making it easier to vote – so if I had to choose between the two I’d take the Senate’s version, but I’m a very qualified and uncertain supporter. The system we had now wasn’t great. My fear is that we’ll make it worse.

Rep. Kevin Brady not running for re-election

Two makes a trend.

Rep. Kevin Brady

U.S. Rep. Kevin Brady, R-The Woodlands, announced Wednesday morning that this will be his last term serving in the U.S. House.

First elected in 1996, Brady is one of the most senior members of the Texas delegation and a powerful player within the House Republican conference. The announcement was widely expected as he was facing a term limit in his role as the top Republican on the House Ways and Means Committee, which legislates tax law.

“I am retiring as your Congressman. This term, my 13th, will be my last,” he announced during remarks at the Woodlands Area Chamber of Commerce Economic Outlook Conference. “I set out originally to give my constituents the representation you deserve, the effectiveness you want and the economic freedom you need. I hope I delivered.”

[…]

Brady’s retirement will set off a scramble to replace him.

The population center of his district is Montgomery County, a potent Republican stronghold in the northern Houston suburban region. In its current form, the 8th District extends north into the Piney Woods. It will likely see some changes in this year’s round of redistricting.

It is difficult, however, to see any scenario in which this seat becomes competitive territory for Democrats. Brady never won reelection with less than 59% of the vote, and he frequently won in more recent cycles by 50-percentage-point margins. In 2020, then-President Donald Trump carried the 8th District by a 42-point margin over future President Joe Biden.

As the story notes, Brady will follow Rep. Filemon Vela into retirement. His is not a competitive seat – he won with 72.5% of the vote in 2020 – but CD08 being open may make it easier for Republican mapmakers to slice and dice it in a way that enables them to protect some other districts, like perhaps CD02. Every incumbent cares about their own district first and foremost, so in the absence of an incumbent, you’d think CD08 would be lower on the priority list for keeping a particular area or feature or whatever. We’ll see if that matters. Brady’s top priority as a member of Congress was protecting wealth and capital, and he’s currently whining about partisanship, so that’s about all I have to say about him. Expect a lot of people to at least look at this one next year, and given that any current officeholder would have to give up their seat to run for this one, the potential exists for more vacancies to be created. The Chron has more.

Texas blog roundup for the week of April 12

The Texas Progressive Alliance weekly roundup counts as infrastructure. That’s it, that’s the intro.

(more…)

ERCOT roundup

Just a few stories of interest that I didn’t feel like putting in their own posts…

ERCOT will argue it is immune from lawsuits.

The Electric Reliability Council of Texas will argue that it has governmental immunity that protects it from the at least 35 lawsuits that have been filed against the operator after February’s disastrous winter storm which killed dozens of people and created millions of dollars of damages.

“ERCOT has and will continue to assert that it is entitled to sovereign immunity due to its organization and function as an arm of State government,” the organization wrote in a Wednesday court filing requesting to consolidate several of the lawsuits it’s battling.

Sovereign immunity grants protections for state agencies against lawsuits, with some exceptions. And this isn’t the first time ERCOT has made the argument — with some success — that it should be shielded from lawsuits due to its role acting upon the directives of state agencies and lawmakers.

In 2018, an appeals court in Dallas ruled that ERCOT, despite the fact that it is a private nonprofit, has sovereign immunity after Dallas-based utility Panda Power sued the operator over allegations of flawed energy projections.

That immunity was challenged at the Texas Supreme Court last month. However, the high court refused to rule on the issue, claiming it lacked jurisdiction because the original case that posed the question was dismissed — a hotly contested opinion with four of the nine justices dissenting.

See here for the previous update. I don’t know what practical effect this might have if ERCOT succeeds, but as a general principle I think this kind of legal immunity needs to be carefully limited. Maybe it’s appropriate here, but there needs to be a strong argument for it.

ERCOT: Blackout primarily caused by power plants freezing up:

The massive loss in power generation during the Texas blackout in February was caused primarily by power plants freezing up under historically cold conditions, according to a new report by the Electric Reliability Council of Texas Tuesday.

The state’s grid operator reported that on the morning of Feb. 16, the most severe moment of the blackout, 54 percent of the loss of power supply stemmed from weather-related issues at power plants, while 12 percent was due to a lack of fuel such as natural gas. Some 51,000 megawatts of generation — more than half of the system’s capacity — were offline at the height of the blackouts at 8 a.m. of Feb. 16, ERCOT reported.

The findings come as state officials are debating how to fix the state’s energy system to prevent a repeat of the power outages that left millions of Texans without power for days on end.

The report Tuesday offered a fairly limited perspective on what went wrong, failing to explain why specific types of generation were unable to operate during the winter storm or what happened. But it will add questions to how well prepared ERCOT and the state’s power plants were for cold weather, despite warnings from the Federal Energy Regulatory Commission to winterize following a less severe cold snap in 2011.

[…]

After weather-related problems, the second biggest loss of generation on Feb. 16 was caused by planned or unexpected outages prior to the cold snap that began sweeping Texas earlier in the week, accounting for 15 percent of lost power supply.

Another 14 percent of lost generation came from equipment failures unrelated to the weather. Only four percent of outages were due to transmission problems or a short drop in the frequency of the power grid that occurred early Monday morning.

I don’t know enough to say what this means in terms of figuring out the best path forward, but I sure hope that the Legislature has some people who know how to read a report like this available to explain it to them. We screwed this kind of response up last time. We have no excuse for screwing it up again.

Faulting ERCOT, insurer says it shouldn’t have to cover storm damages:

ERCOT’s insurance company is seeking a court ruling excusing it from defending Texas’ electric grid manager from lawsuits or covering damages stemming from the catastrophic power failure in February.

The Cincinnati Insurance Co. on Tuesday sought relief from the U.S. district court in Austin, arguing it does not have to defend the Electric Reliability Council of Texas because it does not view the power outages as an accident, defined by the insurer as a “fortuitous, unexpected, and unintended event.” As a result, the company said it has no obligation under its insurance policy to cover ERCOT, which faces a flood of lawsuits after the winter storm.

“The allegations in the Underlying Lawsuits allege ERCOT either knew, should have known, expected, and/or intended, that Winter Storm Uri would cause the same power outages which occurred as a result of previous storms in Texas, including storms in 1989 and 2011,” the insurer said in court documents. “The Underlying Lawsuits allege the power outages caused by Winter Storm Uri were a result of the exact same failures including failures of the same generators which failed in the previous winter storms, and therefore, the power outages were foreseeable, expected, and/or intended.”

[…]

ERCOT’s insurance policy with Cincinnati Insurance, effective until June 2022, states that the insurer “will pay those sums that the insured becomes legally obligated to pay as damages because of ‘bodily injury’ or ‘property damage’ to which this insurance applies. We will have the right and duty to defend the insured against any ‘suit’ seeking those damages.’

The policy, however, says Cincinnati Insurance has no duty to defend ERCOT in cases in which the insurance policy does not apply, and retains the discretion to investigate any “occurance” and settle any claim or lawsuit that results from it. The insurer defines “occurrence” as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.”

In case you were wondering why ERCOT really doesn’t want to be sued. Also, when was the last time that an insurance company paid a claim without fighting it?

An open Texas power grid would boost reliability and renewables, experts say.

Since the February power outages, Texas legislators have been busy weighing a host of improvements for the state’s grid, from weatherizing equipment to shaking up oversight to partnering with the billionaire investor Warren Buffett on new emergency-use power plants.

But hardly any of them have focused on what some believe could be a more widespread fix: plugging into other U.S. power supplies.

While Texas has long opposed opening its grid to avoid federal oversight, and ostensibly to keep prices low, energy experts say the calculus is not what it once was and that the benefits of connecting to the outside world are at least worth examining, especially as renewable energy is poised for a major expansion under the Biden administration.

Not only is the state missing out on a potential lifeline in future blackouts, they warn, it also risks passing up billions of dollars in new investments for clean, marketable electricity.

“We export every form of energy you could imagine except electrons,” Michael Webber, a professor at the University of Texas at Austin, told reporters recently. “This is ridiculous,” he said. “Let’s at least study the option.”

There are some good arguments for this, and some reasonable ones for maintaining the independence of the Texas grid. Just because our setup is dumb and expensive and unreliable doesn’t mean it has to be that way, after all. But this is all an academic point, because there’s a zero percent chance this happens. Go ahead and write a report, but don’t ever expect Greg Abbott or Dan Patrick to read it.