Open Season on California Primaries

In June of this year Californians passed  Proposition 14 (see “California Voters Back Election Overhaul“).

The law (“Top Two Candidates Open Primary Act”)  will take effect on January 1, 2011 and sets up a simple “open” primary system in which all candidates for an office are listed on the ballot and have the choice of declaring a party affiliation or having “No Party Preference” next to their name. All voters will be able to vote for all candidates and the top two vote-getters will appear on the general election ballot in November.

In their endorsement of Prop 14, the LA Times made a case that open primaries would help end polarization and deadlock:

All party primaries tend to bring out committed voters who generally are more extreme than the mainstream of their parties. In California, however, that is compounded by a districting system that protects incumbents by creating seats dominated by one party or the other. Because most districts feature little real competition between the parties, Democratic officeholders fear that if they compromise with Republicans, they might be knocked off by a challenger from their left; conversely, Republicans know they too are safe from the left, but worry that a more conservative challenger might upset them by rallying that base. These are not irrational fears; retribution for unorthodoxy is coin of the realm in Sacramento, and California politics is littered with the remains of politicians who dared to break ranks in order to do what they perceived as best for the state.

The political parties opposed the change. You see, the change could weaken the parties. This is exactly the intention of many reformers. George Will complains that the system will produce bland candidates. Will forgets that most Americans are in the “bland” middle and feel seriously neglected. The current system is very much like perverse affirmative actions program intended to over-represent fringe perspectives.

One argument coming from the political parties is that the new system will encourage back room deals as candidates try to negotiate competitors out-of-the-way. Even if the parties are wrong about this, the political jockeying as potential candidates jump and out of the race can produce some unusual results. If, for example, the popular ideas that make a party a majority could also attract a lot of candidates. Dividing a healthy majority among several candidates could split their votes enough that their candidates would fail to finish in the top two and leave them left out of the general elections.

Consider the possibility of a state or district where party A (in red) enjoys a healthy 57% level of support while party B (in blue) has only 43%. As the figure below illustrates, if party A’s broad  appeal encourages three strong candidates from the party to run and party B’s weaker status only encourages two of their candidates to run, party A could actually see none of its candidates reach the general election. With only two candidates dividing up their share of the vote, both of Party B’s candidates would finish with 21% and 22% of the vote, besting the 19% put up by the three candidates dividing up the support of the majority party.

Of course, this might not happen and there are many other considerations in choosing a primary system. Still, this example illustrates that selecting a system of elections is never easy (William Poundstone’s Gaming the Vote provides a good overview of the dilemmas of choosing a voting system) and that citizens need to think about the advantages and disadvantages of each system. In the end, there is no perfect system.

What makes the new primaries even more interesting is that California has also tried to eliminate gerrymandering by handing redistricting over to a citizen redistricting board. The California Citizens Redistricting Commission is an attempt to remove partisanship and get away from letting the politicians pick their districts. This shuffles the deck as the politicians no long control who will face opposition.

I just came back from a three-day meeting of candidates and campaign consultants. No one knows what is going to happen in the California congressional races in 2012 with the new primaries and the new districts.

That might be a good thing.


The state of party leadership

Lost in the noise behind the release of Texas Monthly’s Ten Best and Ten Worst Legislators was a nice feature in the July 2011 issue of Texas Monthly that asked past legislators to talk about the changes they notice between the last session and when they served. I thought the insights  of these “Hall of Fame” legislators were much more interesting that the ratings and rantings of current legislators.

Patricia Gray, a Democrat who represented Galveston from 1992 to 2005, noted that redistricting had enhanced partisanship and added to the challenges facing the work of the Legislature.

The redistricting that took place after I left changed that by creating more safe districts. When you do that for either side, you put the parties in charge. And the parties are dominated by outside elements. They’re not interested in governing; they’re interested in electing.

Partisan redistricting created districts that are generally heavily Republican or heavily Democratic and almost eliminated to legislators who needed to appeal to both voters from both parties. Bill Ratliff, who served in the Senate from 1989 to 2003, noted that the dominance of the base of the parties changed the relationship between the party rank and file and the state’s leadership:

My sense about how the Senate has changed since I left office is that today’s members have a greater fear of the radical elements of both parties. I don’t think that fear exhibited itself in the Bush-Bullock days, because those two men took the brunt of that pressure and allowed the members to work together to reach solutions. I don’t know if that element of protection is there any more.

The role of party leaders in Texas seems very different today in that both parties are driven by grassroots forces. The Democrats have no effective state-wide leaders. The Republicans dominate state politics but no one is able to manage the tensions between the different elements of the party. Perry and other Republican leaders have been better at responding to the grassroots than leading the party in new directions. Perry quickly abandoned  the Trans Texas Corridor and other of his more ambitious ideas when the party’s base rebelled. Speaker Straus saw his credibility with the party base wrecked before this session began.

With moderates slowly drummed out of the political system by partisan gerrymandering, the foundation for compromise is eroding. With not party leaders willing or able to defend compromise to the broader public, many members found it harder to cast votes for compromise policies.

David Silbey, a Republican who represented Waco for a decade, noted the role of a diverse and divisive voices.

Another problem is that members pay too much attention to the websites of folks with the emails of hundreds of readers. I’ve never seen adults get so scared of so little. I think some members worry about what they need to do politically, and that make policy conform to their politics. In the long run that’s bad for Texas. I don’t wan to live in a state where the kids don’t have good public schools, where we’re not building highways, and where we default to the person with the biggest megaphone.

The ability to coordinate power is often mentioned as a key function of political parties. Parties can provide a mechanism that helps the government work together across the divisions created by the separation of powers and bicameralism. That is not always easy.

Today in Texas, the political parties lack mechanisms for resolving internal conflict. The tea party wing of the Republican party is not interested in the leadership of the establishment and most of the state’s elected officials are not interested in risking their political careers on stepping into the middle of the fight.

Hostage SituationWe have a paradox in Texas. The parties are running the state but no one is running the parties. At the top, the state leaders are better at following than leading. At the grassroots level, we have party primaries that involve very few people who may represent a narrow or conflicted set of interests.

Grassroots power in state politics can be a great thing–until you need to determine exactly what is the message from the last election. The Republican party spent a lot of its energy since their November victory trying to decide who deserves credit for the victory and what issues are a priority. The conflict is still evident as some elements of the old GOP base lobby against the sanctuary cities bill that is very popular among the newer party members associated with the tea party movement.

The electioneering that has taken over the legislative process in Texas is evident in the symbolic bills on voter identification and  airport pat-downs in a session when the House found almost no time to debate the budget on the floor. A few hot topics gave both sides a chance to take positions on the issues that would play well with their base constituencies. Meanwhile, the animosity from those debates make working together harder and drowned out important debates about the very real fiscal issues facing the state.

The conflict over the Republican party’s direction  had to be resolved on a bill-by-bill basis during the short 140-day legislative session. The Republicans were remarkably effective at getting some bills through while others legislation floundered in the turbulence.

Why Rick Perry should not run

I have already discussed why Rick Perry should not run for president–even if he should act like he is thinking about it. Perry’s announcement that he will lead a Christian prayer event in Reliant Stadium this summer does signal ambition–it doesn’t mean that he will run.

My reason for sticking with the prediction is based on a variation the an old proverb: “Better to remain out of the race and be thought a weak candidate than to run and remove all doubt.”

Perry’s appeal is limited. The polling so far does not look good for him (a Texas Tribune poll showed him doing poorly even among Texas Republicans). Republicans don’t need a southern candidate to win and Perry’s support in much of the country is very limited. He would be far behind much of the competition in building a nation-wide campaign. There are already too many candidates appealing to Christian conservatives for Perry to peel off votes there and the legislative session did little to distinguish Perry from the rest of the anti-tax candidates in the current field.

In short, Perry is not a good fit for the strategic environment of 2012. He might surprise us and go from being an asterisk in the polls to finishing third or fourth in the delegate count. However, along the way his weaknesses on important issues or in key states would be on display. The time on the campaign trail would give him time to make the occasional gaffe. He would also be pressed to take stands on controversial issues as he campaigned across the country seeking the support of key groups. He would also have to attack fellow Republicans.

In some ways, it may seem ironic. The best way for Perry to look like a strong vice presidential candidate is to avoid running for president. A presidential run could even create problems for cabinet positions. When it comes to building national support, less might be more.

The question is, can Perry look past the opportunity of Gingrich’s most recent staff implosion and look at the broader strategic picture.

The case for annual legislative sessions

A story in the Austin-American Statesman, made me think about the problems that occur when our legislature gets together every two years with a regular session that only lasts 140 days. Senator Mike Jackson is asking the Governor to veto legislation that the Senator amended because of problems with the wording. Jackson’s amendment would have changed the law so that the Texas Ethics Commission would have to dismiss complaints against candidates who said that they made good faith mistakes and corrected them 14 days. This protection again punishment was so broadly constructed that it would have prevented the Ethics Commission from punishing candidates who broke election law any time they said it was an honest mistake.

Clearly, this legislation was not read closely during the session–even by its sponsor. Legislators were so anxious to protect themselves from ethics violations that they did not leave a credible shell of the law.

It’s one of those little problems you get from the frenzy of activity at the end of each legislative session as so many bills compete for the attention of legislators with very little time. There is lots of work to do and not much time to do it. It’s the time of the year when the ratio of legislation to thinking becomes dangerously high. That is what happens when you have a legislature that meets for 140 days every two years.

Earlier this year the Texas Tribune had a story pointing out that Texas is one of the few states clinging to biennial legislative sessions. Starting this year, only Montana, North Dakota and Nevada will join Texas in only letting our legislators meet every two years. Advocates of retaining biennial sessions would tell us that we are just so much smarter than 46 other states. However, when you see the rest of the country heading in the other direction, you should at least consider the possibility that they have some good reasons.

You may not see a lot of public support for this (although some legislators will admit in private that it’s a needed reform) because it’s not popular among voter with knee-jerk aversion to longer sessions.

Very few people actually suggest that the Texas Legislature is a model of good government. In fact, I haven’t heard anyone offer up the Texas Legislature as a model for anything. For example, the “tea party” conservatives are very unhappy with Texas government despite the fact that conservatives been in control for years. Maybe it’s not the old conservatives. Maybe it’s the old biennial system.

Many people assume that shorter legislative sessions means less government. That only works part of the time and the idea that less supervision over government by elected officials will produce better government is naive. Again, if that was true people would not be insisting that state government did not have a problem with waste. The Legislature’s work must be done by May 30. There’s not much time for close examination of government programs or executive branch appointees in those 140 days.

Also, a part-time legislature generates part-time staff. A little more expertise might have nipped this problem in the bud. Who is full-time in Austin? The media and interest groups. So, if the Austin-American Statesman and Texans for Public Justice didn’t catch this…

Part-time legislators help empower full-time lobbyists. Legislative staff will tell you that they rely heavily on the information and effort provided by special interests and their lobbyists. The rush of the legislative session only facilitates lobbyists who have arguments ready and bills drafted that reflect the needs of their clients. It’s the legislators playing catch-up.

There is the notion that less time in session means less time for bad decisions. However, bad decisions generally take less time than good decisions. Conservatives and liberals have seen some of their favorite bills die for lack of attention this session. Good legislation takes time, whether you want to cut government or expand government.

Texas is one of the most rapidly changing states in the nation. The state is already saddled with a state constitution that needs to be updated. We need some way to play catch up.

Despite this, the philosophy of Texans seems to be: “Even if it’s broke, don’t fix it.”

The costs of justice for all

Chief Justice Wallace Jefferson and Justice Nathan Hecht, both elected to the Texas Supreme Court (as Republicans) in state-wide election, issued a strong plea to legislators to restore funding of the state’s legal aid programs. I emphasis their status as elected officials because they carry a mandate of sorts because they have been chosen by voters state-wide. Jefferson and Hecth re-elected in 2006 with 2.5 million votes the same year Perry won 1.7 million votes. Jefferson won almost 4.1 million votes in 2008. Any elected official with more votes than these fellows can ignore their advice. Everyone else should at least give their suggestions a little consideration.

I have included the entire letter so you can see the range arguments offered and not have to worry about selective editing (I did add a couple of links):

For its own integrity’s sake, the civil justice system must be available to every Texan victimized by domestic violence, to each veteran wrongly denied the benefits our country has promised, and to all families who have paid their bills but are nevertheless evicted from their homes. These situations occur in Texas. But under current funding sources, we can reach less than one-fourth of those in need.

You have asked what the probable consequences will be if we are unable to secure funding to give these citizens access to our courts. We hesitate to contemplate that outcome. But having consulted the Texas Access to Justice Foundation, which administers grants to legal aid providers in Texas, supervised by the Supreme Court, we are offer the following report.

First, we know of no way to replace the $20 million that the Legislature appropriated in 2009. For decades, the IOLTAprogram has been a principal source of funding for Texas legal aid. But IOLTA funds are a product of federal interest rates, which are near zero. Those funds have fallen over 75%, from about $20 million in 2007, to a projected $4.4 million this year. The other major source of funding, the Legal Services Corporation, has been cut 4% this year. Deeper cuts are forecast for next year.

Second, we know that, for lack of a minor investment, Texas will be denied great rewards. The forty programs the Foundation funds help about 104,000 families a year. The Foundation estimates that a $20 million reduction in funding would result in the denial of basic civil legal services to some 25,000 struggling Texans. As many of those Texans are single-parent heads of households, the number truly impacted would exceed 75,000.

Third, lawyers that work in legal aid organizations (for a fraction of what their peers earn) not only represent poor Texans, but also coordinate and support volunteer efforts by other Texas lawyers. It is triage work; the legal aid lawyers help when they can, and enlist the services of private attorneys who donate their time and money to provide free assistance. When legal aid organizations perish through lack of funding, the portal through which clients are aligned with private attorneys will collapse.

Fourth, the funding we seek is not to compensate lawyers. The lawyer who represents an indigent victim of domestic violence works for free or for sums vastly below what the private sector commands. Legal aid lawyers work to preserve the rule of law, and thus the integrity of our civil justice system. They represent our neighbors who fall below the poverty level (annual income of $13,613 for an individual, $27,938 for a family of four). These include veterans and their families, the disabled, children, the elderly, and victims of natural disasters. About 5.7 million Texans qualify for legal aid.

Some consider this Court conservative. Conservative principles do not call for the rule of law to be denied the most vulnerable members of our community. The civil justice system is where people can claim for themselves the benefits of the rule of law. It is where the promises of the rule of law become real. A society that denies access to the courts for the least among us denigrates the law for us all. For these reasons, securing funding for basic civil legal services has been a priority for the Supreme Court, one to which its members are unanimously committed.

Access to the court system is fundamental to justice and democracy. If the government has created a legal system that is beyond the understanding or affordability of most Texans, the burden is on the state to re-open the process. Government needs to defined to meet the needs of citizens–not the other way around.

Do we need all those rules?

Many Texans opposed annual legislative session, changing the rules of the Texas legislature, or streamlining the Texas Constitution. We have multiple readings of bills, restrictive deadlines, and a host of other barriers that provide few meaningful protections against a corrupt legislative. At the same time, they complain when a filibuster derails the process as the time runs out on the 140-day session.

This reminds me of a line in the Disney movie, The Emporor’s New Groove: “Why do we even have that lever?”

When your legislative process makes less sense than a Disney film…

**** Update ****

A similar observation came up in Brewester Rockit