Legislative Update - March 5, 2021

The ULLCO Sentinel

Weekly Labor Update on the 87th Texas Legislature

March 5, 2021 — #9
87 Days to Go in Regular Session

Celebrate when you're half done,
And the finish won't be half as fun

—From The Slippery Slope by Lemony Snicket (pen name of Daniel Handler), book 10 in A Series of Unfortunate Events.

* * *

Abbott 'Spikes Ball on 30-Yard Line' — Shedding a group of experts who provided him scientific credibility on state policy during long months of the pandemic, Gov. Greg Abbott went on television to pronounce Texas ready to end a statewide mask mandate and to let businesses return to 100 percent capacity. Abbott said in a Lubbock restaurant with a large majority of mask-less patrons, Texas residents can stop mask wearing without penalty beginning next Wednesday. Criticism was swift. Scientists and other acute observers pointed up that while COVID-19 numbers are down from early-year peaks, they remain about where they were when Abbott imposed the mandate in the first place. Many businesses and government building overseers said no thanks, they intend to continue requiring people to wear masks. As for the Legislature, House Speaker Dade Phelan suggested lawmakers might consider reverting from pandemic rules that limit public access to the House chamber and committee meetings; no word yet from Lt. Gov. Dan Patrick, whose Senate is requiring COVID-19 tests just to enter the premises.

'A Matter of Life and Death' — Abbott's political frame is individual choice. Avoiding COVID-19, however, depends on cooperation, and one person's "freedom" to go mask-less in public affects entire communities trying to avoid the virus. Local newspapers began publishing lists of businesses that would continue to require masks, but large mask-less gatherings in other locations may cause spikes. The Texas AFL-CIO said Abbott's example could cost lives. "The statewide mask mandate followed the science. Lifting the mandate does not," Texas AFL-CIO President Rick Levy said. "Working families in Texas, who have sacrificed so much to get us this far, deserve better than a governor who is about to repeat the same deadly mistake he has made before...Gov. Abbott, this isn't a political play. It's a matter of life and death."

Important Win for Teachers — COVID-19 vaccinations are accelerating but are nowhere near the level needed to convey "herd immunity." So it was especially good news that public school employees and day-care workers will get elevated priority in pharmacies thanks to federal action. Texas American Federation of Teachers President Zeph Capo said while other health concerns remain regarding the physical reopening of schools, the stepped-up availability of vaccines amounts to an "amazing victory." Read more: http://bit.ly/388su4y.

Texas Lags on Number of Women in Legislature — It's Women's History Month, and the blog of Pew Trusts found in a new survey that the proportion of women in state legislatures — 30.6 percent — still falls well short of the slight majority held by women in the general population. Texas is even further behind, at 25.4 percent. Reasons are complicated, but at least one state, Nevada, has more than 60 percent women in its legislature. One thing we know: The role models in the Texas Legislature are inspiring other women to run. For more data, see: http://bit.ly/2PsHILb.

Elephant in Room Takes a Walk? — Abbott's mask announcement might not have gone over as he hoped in Texas. Less surprisingly, President Biden called the thinking "Neanderthal," which raises independent questions because Neanderthals are now believed to have been highly intelligent, adaptable tool-makers, but you get the idea. Abbott responded to Biden by scapegoating undocumented immigrants, whom he suggested were being released to spread COVID-19 in Texas, and he lost his cool in a TV interview on the subject (see https://bit.ly/30ec5Hs). Yet at least temporarily the brouhaha over masks turned attention from the more recent state failure in a disaster — the one in which Texas families shivered in their homes, lost water service and, in some cases, died during a series of winter storms. The news on a looming rearrangement of deck chairs in the Texas power grid was significant. Under severe criticism from lawmakers over failure to communicate the dangers of the storms, the chair of the Public Utility Commission, DeAnn Walker, resigned while the CEO of the Electric Reliability Council of Texas, Bill Magness, was dismissed by his board, which itself has been decimated by resignations. News outlets reported ERCOT miscalculated during the crisis, charging utilities $16 billion more than they should have. So far, leadership legislation on the winter crisis focuses on house-cleaning at ERCOT, not the larger frame of deregulation that failed Texas at the most crucial moments.

Gubernatorial Power — Gov. Abbott has suspended an array of laws and regulations during the pandemic. Lawmakers began the session with plans to recalibrate a Texas governor's power when a disaster runs long — in this case, nearly a year and counting. Some proposals would require the Legislature to come into session, and many bills have focused on matters like outlawing mandates regarding religion or guns. The most closely watched one so far is HB 3, an omnibus pandemic response bill by Rep. Dustin Burrows, R-Lubbock. (The low number "3" in that designation means it is a leadership priority.) The bill reinforces gubernatorial power in most respects, but also dials in the Legislature. Under HB 3, the Secretary of State would have to approve local adjustments to voting procedures. A school voucher provision could funnel state money to private schools that remain open. The Senate appears to be focused on ERCOT, on visitation rights at nursing homes, and on "First Responders Pandemic Care." Bottom line: Unless a constitutional amendment can garner two-thirds support in each chamber, any legislation on gubernatorial power would need Abbott's support to succeed, placing practical limits on lawmakers who might be upset with Executive Orders. For a fuller discussion, see: http://bit.ly/3sS8Z8d.

Schedule — The House and Senate again held full floor sessions only on Tuesday, followed by short sessions Wednesday to refer bills to committees. The House returns 2 p.m. next Tuesday, March 9, and the Senate at 3 p.m. that day. Next Friday, lawmakers arrive at the 60-day mark, the deadline for routinely filing bills. At the end of that day, it would take super-majorities to permit bill filings. Also after 60 days, procedural shackles go away and lawmakers may begin passing bills on which there is sufficient consensus.

* * *

The Basics

Does Texas have a "weak governor" system?

On paper, yes. The post-Reconstruction state government set up by the Texas Constitution of 1876 followed a pattern of decentralizing state governments in the South. Texans of the era wanted to minimize governmental intrusion on their lives. Along with a part-time Legislature, the Governor has no official cabinet, with voters choosing heads of many major departments. Until the 1970s, the Governor served terms of just two years, keeping the position before voters on a constant basis. And because terms on major agency boards are staggered, governors could not immediately seize the administrative apparatus, often having to negotiate with holdovers from prior administrations.

But don't Texas governors exercise major powers anyway?

Again on paper, yes. Several factors enable "weak governors" to amass strong powers: longevity, which has let governors like Rick Perry and Greg Abbott influence the bureaucracy through appointment and the political bully pulpit; the veto power, which under the rules and practices of the Texas Legislature is virtually impossible to override; the line-item veto of state budgets, which allows governors to surgically trim spending and use appropriations as leverage; and the unique ability to call special legislative sessions on topics of the governor's choice.

Hasn't Greg Abbott seized even more power?

Yes, but in tragic circumstances. The Legislature's statutory prescriptions for when disaster strikes may not have anticipated a year-long pandemic. Abbott has filled a vacuum and, despite some bipartisan criticism and some failed court challenges, has issued major Executive Orders. He created, and this week withdrew, a statewide mask order, he suspended regulations and laws (think take-out booze, for example), he extended early voting in the Nov. 3 election, and he directed that minor surgeries be postponed, among other things. The Legislature is discussing gubernatorial power, but it does not look like a dramatic reduction in disaster powers is in the offing.

Could future governors become 'weak' again?

Yes. Gubernatorial power depends heavily on cooperation with legislative leadership, on comity with other statewide elected officials and, always, on persuasion of voters. If you posit a governor who lacks one or more of these ingredients — something not uncommon in the past — all sorts of checks and balances come into play. The Senate can bust appointments. Lawmakers can deny budget funds. Rival officeholders can engineer challenges. Gubernatorial power depends heavily on the skills and popularity of whoever is holding the office, but even more so on what voters do.

* * *

Bill Positions

ULLCO took action on five Unemployment Insurance bills on subjects previously discussed in this newsletter. ULLCO:

ENDORSED HB 1782 by Rep. Joe Deshotel, D-Beaumont, which would provide for alternative base periods for determining eligibility for benefits. Under current law, interruptions in wage-earning for matters like injuries or illness can render a worker ineligible for Unemployment Insurance benefits at a later date;

ENDORSED HB 2128 by Rep. Chris Turner, D-Grand Prairie, which is a similar alternative base period bill; HB 2129 by Turner, which would increase extended benefits in situations causing large-scale unemployment; and HB 2130 by Turner, which would continue benefits when workers reject a job offer in a workplace that is not complying with federal, state or local standards for protecting against COVID-19; and

ENDORSED HB 2273 by Rep. Mary González, D-El Paso, which would provide benefits to a worker who leaves a workplace because of sexual harassment that he or she has reported.

Some key bills filed recently on which ULLCO has not yet taken a position:

—SB 871 by Sen. Robert Nichols, R-Jacksonville, is a version of a bill that would continue the Board of Plumbing Examiners. After a successful fight led by plumbers last session to keep the agency alive ended with a temporary extension granted by Gov. Abbott, the agency needs legislation to continue. Plumbers are combing through this bill alongside HB 636 by Rep. Senfronia Thompson, D-Houston, an ally who led the fight to keep the agency in the Texas House.

—Speaking of Rep. Thompson, she filed HB 2507S, which would attack wage discrimination. The bill would allow discrimination claims to proceed in cases where workers only find out about the pay disparity years after the fact and it would bar most employer inquiries on past wages during the hiring process;

—HB 2810 by Rep. Chris Turner, D-Grand Prairie, would allow Unemployment Insurance benefits for Texas workers who cannot work because of labor disputes occurring outside Texas. That measure has had ULLCO's endorsement in the past, but this time it has been filed by the chairman of the key House committee with jurisdiction over the bill;

—Though not necessarily a labor bill, HB 2471 by Rep. Bryan Slaton, R-Royse City, would enter a running fray between Gov. Greg Abbott and Austin Mayor Steve Adler over policy toward homeless Texans by designating an area between Austin's 4th and 11th Streets and I-35 as "Steve Adler Public Restroom Highway." While the measure may be frivolous, it is a good indicator of the high temperature on bills that seek to supersede local power — with a progressive Austin City Council at the center of the bull's-eye for some lawmakers.