April 28, 2007

Extraordinary Power Play in State Senate
Fails to Derail Transportation Moratorium

By Mike Hailey
Capitol Inside Editor

The state Senate set up a showdown with Governor Rick Perry on the hottest issue in last year's elections when it approved a two-year moratorium on privately financed toll roads after an extraordinary test of the presiding officer's authority by one of the chamber's most powerful members.

The power play unfolded when State Senator Robert Duncan challenged a decision by Lieutenant Governor David Dewhurst to sustain a point of order that appeared to kill an ethics amendment that the Lubbock Republican attempted to tack on to the transportation package that included the toll road moratorium.

None of the Senate's current members had ever witnessed the formal appeal of a ruling from the chair like Duncan raised after the lieutenant governor ruled that the amendment in question was not germane to the transportation bill. Duncan's amendment would have prohibited highway contractors from making political contributions to county judges or commissioners who would be making calls on local transportation projects if the legislation becomes law.

Duncan, a 10-year Senate veteran who served two terms in the House as well, admitted that he'd never made such an appeal - and he suggested half-jokingly that he hoped he would not lose his job as a committee chairman as a consequence of it. Duncan is the State Affairs Committee chairman.

But Duncan insisted that the amendment he'd offered was indeed relevant to the legislation at hand because the proposal had been part of the transportation measure when the House approved it earlier this month. The ban on contributions from contractors was removed from the legislation when the Senate Transportation & Homeland Security Committee replaced the entire House bill with a similar plan of its own.

Duncan argued that senators would be setting a dangerous precedent if a majority upheld Dewhurst's ruling in support of the point of order that had been raised by State Senator Tommy Williams, the transportation bill's Senate sponsor. Duncan contended that Senate committees would be guaranteed of "exclusive jurisdiction" on what goes in and comes out of legislation that's sent over from the House if the Senate didn't reverse the ruling on the point of order.

The complex chain of events that followed the debate on Duncan's challenge unfolded quickly. When it appeared that the Senate was about to vote on the appeal, State Senator John Carona, a Dallas Republican who chairs the Transportation & Homeland Committee, suddenly "moved to call the previous question" - a parliamentary tactic that effectively cut off debate on the challenge.

Duncan immediately shifted gears, withdrawing the appeal and moving instead to suspend the Senate rules on which Dewhurst's decision to affirm the point of order was based. But most of Duncan's colleagues rallied behind the lieutenant governor when they voted 27-4 to reject the motion to invalidate the rules in question as they pertained to the transportation bill. Republican State Senators Kip Averitt of McGregor and Steve Ogden of Bryan and Democratic State Senator Carlos Uresti of San Antonio sided with Duncan on the motion to suspend the rules at the center of the rare fight involving the Senate president's power as the chamber's referee on parliamentary procedure.

Dewhurst had relinquished the chair to State Senator John Whitmire, the dean of the Senate, during the unexpected skirmish over the ruling on the point of order. The Senate moved quickly from there, finally approving the transportation package on a vote of 27-4. The only votes of dissent on the final vote were cast by Duncan, Averitt, Ogden and State Senator Eddie Lucio Jr., a Brownsville Democrat.

The transportation measure's opponents suggested that the proposed moratorium was more of an emotional reaction to the public uproar over the private financing of toll roads than a deliberate contemplation of a complicated policy question. The bill's foes argued that their colleagues were rushing to judgment in order to have time to override a possible veto from Perry.

And a terse statement that the governor issued late Friday left the impression that he would veto the bill. The measure could be on its way to the governor's desk early next week because the House sponsor, Republican State Rep. Wayne Smith of Baytown, has indicated that he will ask his colleagues in the lower chamber to concur with the Senate amendments in order to avert a potentially fatal conference committee showdown. Here's what Perry had to say about House Bill 1892:

“The legislature claims Texas needs a moratorium on private financing of toll roads, yet seeks to exempt every privately planned toll road on the drawing board from their moratorium. The legislature states that we need to pause and reconsider public private partnerships to build roads, yet expand this concept by granting this exact same authority to local toll road authorities all over the state. This bill appears to do little to address the serious concerns raised by the Federal Highway Administration earlier this week. Instead, it jeopardizes billions of dollars in federal funding for Texas and clean air compliance in Houston. Both consequences would be devastating for the Texas economy. I will review this bill carefully because we cannot have public policy in this state that shuts down road construction, kills jobs, harms air quality, prevents access to federal highway dollars, and creates an environment within local government that is ripe for political corruption.”