Big picture considerations as the 87th Texas Legislature convenes amidst multiple crises

After spending a dramatic interim mostly on the sidelines of the policy response to the COVID-19 pandemic and its ill effects on the economy and the lives of Texans, state legislators now have their chance to respond to the impact of the crises in Texas as the 87th Legislature convenes in Austin this week. While they are empowered to legislate, they do so in conditions not of their own choosing – and those conditions are at best difficult, at worst grim. Below we explore the most important factors forming the context of legislators' attempts to address the problems facing the state, from the big structural factors like the pandemic, the economy, and racism to more mundane political conditions like the images of the state's leadership among the public and the politics of federalism after the election.

One aspect of politics looms largest over the legislature, affecting everything it will seek to do or avoid doing, and coloring the responses to all of the factors shaping politics in the state: the partisan polarization of both elected officials and their consituents. The seemingly ever-escalating levels of political polarization in national politics course through Texas politics, too. Already aggravated by President Donald Trump’s insistence on acting as if he won the election, partisan politics have taken their most dangerous turn yet with the attack on the U.S. Capitol last week during Congressional ratification of the Electoral College vote by Trump supporters who were egged on by the President. Many Texas Republicans are deeply implicated in the efforts to reject the results of the 2020 presidential election, which have been validated at the ballot box, in the courts, and by the well-established consitutional process based on the Electoral College and the validation of Congress. Senator Ted Cruz was a leader in the legislative efforts to obstruct the ratification of the vote, which was opposed by Texas’ senior U.S. Senator, John Cornyn, with more than half of Republicans in the Texas Congressional delegation voting to challenge the Electoral College results after the assault on the Capitol by Trump supporters. Senator Cruz is probably less interested in Donald Trump serving another term, given the Senator's demonstrated presidential ambitions, but his play for the affection of Trump supporters and the resurgent wing of conspiracists and white supremacists evident among the protesters, looters, and insurrectionsts who stormed the Capitol cued his only somewhat less ambitions GOP colleagues in Texas. Many Texas Republicans, including the Attorney General, Congressional Trump dead-enders, and even some state legislators, took to social media after the attack to side with Trump’s lies about the election yet again, and to deflect blame for the riot away from the Trump supporters who broke into Capitol facilities and appear to have beaten a member of the Capitol police to death. 

Both the divisions among Republicans on the fundamental issues at play in Trump's exit from the White House as well as the existential struggle between Democrats and Republicans exacerbate the same fundamental dynamics at play in state politics. The overarching condition shaping the path of the state legislature remains, as it has for several sessions, the political fragmentation created by the deep divisions between Democrats and Republicans, and the divisions within the Republican caucus. At the state level, the fractures over Trump’s disastrous and still unfolding exit from the White House, and the insurrection meant to undermine the election that deposed him, follows months of a deeply partisan lack of consensus in confronting the COVID-19 pandemic in Texas. The politics of the ineffectual pandemic response has been driven in equally depressing parts by the partisan payoff Republicans expect from trying to politically suffocate urban governmental bodies, and by GOP elected officials’ abject fear of the nihilistic resistance of conservative skeptics and outright denialists of the pandemic. The intensified political fragmentation around the COVID pandemic is already shaping the legislature. More on that below.

However much Texans’ pride themselves on doing things their own way, it’s hard to imagine the script in the Texas Capitol will be much different than the one we’re seeing acted out in Washington during the waning days of the Trump administration. Democrats will rail against the feeble response to the pandemic mounted by a Republican party in thrall to a minority of GOP voters granted seeming veto power out of fear of their potential impact in primary elections. The big difference in Texas is that Democrats continue to have little to no leverage after their failure to improve upon gains made in 2018, and so have scant ability to provide political cover for Republican elected officials who do accept the central realities of the pandemic – there will be no broad economic recovery without containment or widespread vaccination, and in the meantime, the pandemic will continue to kill, debilitate, and impoverish hundreds of thousands of Texans. Increasing polarization, the erosion of compromise, and legislative inaction have been systemic problems in the Texas Legislature for a long time. But the human cost is now exponentially higher than ever before given the impact of the pandemic: at this writing, over 30,000 Texans have been killed by the virus, and nearly two million have been infected, with at least 12,000 new cases a day every day so far this year.

Against this grim backdrop, we look briefly at five contextual factors that will shape the legislature’s efforts when they get to work: the continued failure to contain the coronavirus pandemic; the uneven “recovery” of the Texas economy and the fiscal position of the state given the economic downturn and other costs associated with the pandemic; the positions of the state’s relevant, elected Republican leaders; the sharply divergent views of Democrats and Republicans on fundamental aspects of prominent calls for social justice this summer and beyond; and the state’s relationship with a federal government recently subject to unitary control by the newly elected Democratic president and thin majorities in both houses of Congress.

1. Despite the development of vaccines and an abundance of wishful thinking and/or denial about the seriousness of the COVID-19 pandemic, efforts to contain the virus in Texas have largely failed to date. While state leaders strategically avoid accountability with a series of silence, redirection, and optimistic talk, the indicators of this failure are as plentiful as they are grim. Cases have been on a more or less steady increase since October, as have the number of COVID fatalities. The volume of cases has surpassed the first peak of the pandemic in July, though deaths have not thanks to improvements in treatment. But testing positivity rates and the COVID share of hospitalization are increasing steadily, too. (Graphics below courtesy of the TX2036 COVID-19 Tracker, accesssed 1/12/21.)

Now, vaccine distribution appears plagued by the same lack of coordination (or direction) that plagued early testing and containment efforts. Statewide leadership seems at least as intent on promising Texans that “we’re not gonna have another shutdown,” or even encouraging people to gather in bars and restaurants, as they are on providing frequent and clearly articulated urgency about the seriousness of the pandemic.

As legislators take clear measures to protect themselves even while the public continues to suffer, it seems likely that the pace and extent of public vaccination will determine whether the legislature will face public pressure from Texans who get a whiff of that hypocrisy. In recent weeks we have seen ample evidence that state leaders see how seriously the virus threatens them. Lt. Governor Dan Patrick has announced that the coronavirus is serious enough to force the senate to limit its opening day festivities, and more importantly, to limit press access during the session to four in the gallery of the chamber, and none in any committee hearings. The House has distributed suggested protocols for members that acknowledge the clear risks of in-person contact among the mostly older population, though, of course, has left office policies up to individual offices, as incoming Speaker Dade Phelan told Evan Smith in his pre-session interview with The Texas Tribune. Each member, it seems, has the right to create an unsafe harbor in their office. But despite the efforts to enable a commitment to individual liberty without regard for public health, the highest ranking elected Republicans in the state recognize the threat to themselves. In a telling moment in an interview for members of Professional Advocacy Association of Texas that was open to participating reporters, House Administration Chair Charlie Geren, discussing the wide range of measures to protect public health in the Capitol being considered at the time, noted that he was required to take a COVID test before meeting with the governor, and implied that he expected that would be the case for meeting with the Lt. Governor as well.

From this, we can see that the dangerous blitheness about the virus adopted by the president and a large share of his followers, has been promoted by a statewide leadership that nonetheless takes the virus more seriously personally than many convey to their constituents. (Remember when the Lt. Governor was supposedly ready to die for the cause of the economy?) By now, the virus-minimization of Republican elected officials following the soon-to-be ex-president’s lead and the attitudes of their base voters form the most vicious of circles.

We’ve written extensively about attitudes, and changing attitudes, towards the coronavirus, but the central issue has been a degradation of concern and an accompanying uptick in socially dangerous behavior by Republican voters, even as their leaders, at least in private, weigh the threat more seriously. Still, the emerging details of opening day at the legislature suggest that despite concerns, legislators, staff, and visitors may well find themselves attending opening day with hundreds, if not thousands of other folks, as Harvey Kronberg warned last week in a post on Quorum Report (paywall). The legislative community may be unable to avoid the danger posed to the overall population by just a few deniers unwilling to accept limits in the name of public health. It’s hard not to see as a portent the multiple accounts of Republican members of Congress refusing to wear masks while sheltering in close quarters with their mask-wearing colleagues during the invasion of the Capitol. As of this writing, three members of Congress in that group have since tested positive for COVID-19 so far. All three are democrats.

2. The Texas economy is booming for some while many continue to struggle. While optimists may be quick to point out that the economic picture in the state, like in the U.S. overall, is more mixed than was expected in the early days of the pandemic and during the first shutdowns, the negative effects of the ongoing winter surge aren’t yet fully clear. What has become more clear is that the economic impact of the pandemic, shutdowns or no shutdowns, has accentuated economic and racial inequality. Broadly speaking, the coronavirus has physically and economically impacted non-white Texans disproportionately, a facet of the pandemic that became clear very early and has not abated. (Graphic below courtesy of the TX2036 COVID-19 Tracker, accesssed 1/12/21.)

According to the Bureau of Labor Statistics, nationally, unemployment more than doubled from 3.7% in the third quarter of 2019 to 8.9% in the third quarter of 2020. White Americans saw their unemployment rate increase by 132%, from 3.4% to 7.9%. While the increase among African Americans was similar, 135%, the absolute shares who are unemployed were and are higher: 5.6% in 2019, 13.2% in 2020. Among Hispanics, the unemployment rate increased by 166%, from 4.2% to 11.2%, while among Asians, unemployment increased a staggering 278%, though from an extremely low level of unemployment in 2019, 2.8% compared to 10.6% at the end of 2020.

The importance of the failures of leadership and messaging discussed above is being echoed by economists. According to the Dallas Federal Reserve, surveyed Texas Businesses “said COVID-19 concerns and a lack of legislative clarity drove up uncertainty and a scaling back of operations” while Texas’ growth trails the U.S.

The strong influence of partisanship on views of the economy, historically driven by which party occupies the White House and apparent in UT/TT polling data is much more of a force during ostensibly good, than bad, financial times. For example, on the eve of the 2016 presidential election, only 14% of Texas Republicans said that their personal economic situation had improved over the last year, but by February of 2017, with a Republican in the White House, that share had doubled to 30%. Among Democrats, with a Democrat in the White House, 43% said that they were better off than a year ago; once Trump had assumed office, the share of Democrats who said the same had dropped to 23%.

More Texans are feeling the effects of an economic crisis more severe than the usual ebb and flow of the economy, and incorporating that experience into their assessments. Since the start of the Pandemic, the share of Texas voters who say that they are personally better off financially, declined from 41% in February to 28% in April, to 24% in June, to 23% in October. While partisanship continues to influence attitudes, objective conditions and experience weigh more heavily in Texans’ evaluations. The share of Republicans who reported being better off than a year ago dropped from 65% in February of 2020 to 33% in October; the share who reported being worse off increased from 7% to 19% in the same period.

The limits on the ability of the legislature to act decisively to address the effects of the sputtering Texas economy will weigh heavily on lawmakers. The economy is salient to most voters, particularly given their current situations, yet the legislature will still be hamstrung by both a tight budget as well as the usual constraints, both institutional and self-imposed. Fiscal constraint and a limited scope of government in social services are the historical norm for the state, and central tenets of the party in power. The Comptroller’s just-released biennial revenue estimate forecasts a significantly smaller budget hole than anticipated in his last estimate – $950 million, compared to the previous estimates of over $4 billion. While this falls well short of the disaster almost universally anticipated in previous months, there will still be no room to accommodate expected growth in spending as a result of prior commitments and population growth, nor to address new needs either created or revealed by the pandemic and its economic impact. The Comptroller, with characteristic deftness, emphasized both the high degree of uncertainty in the environment as well as the possibility of renewed economic growth as the pandemic subsides and, to paraphrase, pent up economic energy gets released. These qualifications provide an enormous amount of cover to GOP legislators and statewide elected officials to hedge on decisive action and head in the direction of muddling through with little major action.

3. Attempts to legislate around race, policing, and racial justice issues will be persistent and and differ starkly along intensely partisan lines. In the year and a half since the legislature last convened, the national discussion on issues of racial justice, especially though by no means exclusively in the realm of policing and criminal justice issues, has become even more intense than usual – and the comparative baseline is high. Asked in October whether the deaths of African Americans during encounters with police in recent years are signs of broader problems or isolated incidents, 85% of Texas Democrats say that these deaths are a sign of broader problems, while 76% of Republicans see these deaths as isolated incidents. While these results say little about broader attitudes towards systemic racism, it does speak to the extent to which different constituencies would be likely to embrace either more targeted (isolated incidents) or more systemic (a sign of broader problems) reform, to policing or otherwise. Additional poll results suggest that views of reform proposals – and even of what constitutes “reform” – will be reinforced by a range of related attitudes: views towards police (which are overwhelmingly positive among Republicans but decidedly mixed among Democrats); even more divergent views towards the protests that occured last summer in response to George Floyd’s death; and mixed but different views about the likely impact of the increased attention to the treatment of black Americans by police (the plurality of Republicans — 42% — say that this attention will make race relations worse, and only 14% saying that it will improve race relations, compared to equal shares of Democrats — 34% — who believe the attention will improve race relations, or have no impact).

Further complicating efforts to address social justice concerns are the disparate experiences faced by Anglo and non-Anglo Texans with respect to their interactions with police. Asked in June 2020 whether or not they’ve ever been treated unfairly by police because of their race or ethnicity, approximately 1 in 10 Anglo voters said that this has happened to them, compared to 3 in 10 Hispanics, and 1 in 2 African Americans.

At the root of these partisan differences are sharp differences in perceptions of the discrimination. While 60% of Democrats said that African Americans face the most discrimination in society today among 10 groups assessed, among Republicans, Christians were selected as the most discriminated against group by 28% (the most of any group), followed by Anglos (17%), and then African Americans (16%).

Legislators in both parties have campaigned on very different aspects of racial justice and policing issues that activate their respective constituencies, with little common ground existing between their respective priorities. When these issues have arisen in recent sessions – examples include the Sandra Bland law, the handling of Confederate art and monuments on public property, so-called “Sanctuary cities” legislation – they have been flashpoints for sharp partisan conflict as well as turmoil within the caucuses. Also, issues of racial equity and representation remain intrinsic to the redistricting process, and make for a combustible mix with the other main currents at work in drawing new maps – each member’s self-interest in maximizing their re-election chances and bareknuckle partisanship. Even if the leadership manages to tamp down conflict over racial justice issues by throttling the flow of legislation on the subjects that have inflamed politics in the last year and a half, this energy is sure to be channeled into redistricting. The fundamental differences in perceptions of racism remain central to the politics of redistricting, where Republicans have historically used partisanship as fig leaf for racial gerrymandering and Democrats are required, by both philosophy and the practicalities of their coaltion, to force disussion of the racial politics at play. The delay of the delivery of Census data until March at the earlies will put this discussion off until late in the legislature and the inevitable special session(s) to follow, but the racial politics of map drawing will hover over the process. 

4. The pandemic and Trump’s effect on politics have changed the position of the major elected officials in the state, particularly Governor Abbott and Lt. Governor Dan Patrick. The largest questions about the position of the state’s top two elected officials revolve around the position of the governor vis-a-vis the legislature. On one hand, the governor expended resources in the successful defense of the Republican majority in the House during the 2020 elections, and would likely have been blamed had the GOP’s position continued to deteriorate in the wake of their 2018 losses and close wins. On the other hand, he has been subject to attacks from both the Democrats and, more influentially, from the right wing of the Republican Party for his handling of the pandemic. Democrats have criticized his response as too minimal, poorly executed, and vaguely communicated. Dissident conservative Republicans, resurgent as a result of public resistance to COVID-19 containment measurees and the improbable rise of state party chairman Allen West, have railed against what measures Abbott has been willing to implement as, to paraphrase some of their language, tyrannical. While Abbott’s job approval numbers over the life of the pandemic have not cratered in the way that his opponents sometimes claim, they have eroded — and they’ve also tended to lag the approval ratings of other governors (which should be taken with a grain of salt given that Abbott is one of a few Republicans governing a large, urban, and diverse state). 

The Lt. Governor has also been tripped up by the pandemic. His early pronouncements earned him national notoriety for seeming to suggest that the elderly were expendable, but as session has neared Patrick, who will turn 71 in April, has exuded caution in considering how the Senate will convene, as noted above. Both have enormous incentive to hope that vaccination progresses as quickly as possible in order to end the pandemic, though both have found it expedient to work against the public interest by underlining that the vaccines aren’t mandatory — a counterproductive sop to the anti-vaxxers and COVID deniers in their party.

5. The emergence of unified Democratic control of the executive and legislative branches of the federal government will create new policy and political environments for legislators. The unexpected victory of Donald Trump in 2016 produced an abrupt shift in how Texas approached the federal government and vice-versa. The state-federal relationship during the Obama presidency (and even the late G.W. Bush regnum) had primarily been defined by the sparring over the spending of federal funds that consistently make up a third or more of state income and crabby litigation. The model of “getting up in the morning and suing the federal government” that Abbott so gleefully (and strategically) promulgated during his overlap as Attorney General with the Obama presidency was just as gleefully embraced by his successor, but shifted abruptly once Trump moved into the White House. Paxton’s eagerness to earn headlines by jousting with the feds will no doubt be on full display again during the Biden presidency. But while the GOP leadership will be comparatively a lot less eager to talk about it, the availability of federal funds to help plug a huge hole in the budget and to address the continuing effects of the pandemic will also loom large. 

In the first waves of economic slowdown that racked the economy, the huge infusion of federal funds, from stimulus checks sent directly to Texans to the billions of dollars in unemployment support and other transfer payments, prevented both immediate economic and budgetary disaster. The budget hole hasn’t gotten any smaller, and the economy is still precarious. Texas will still have its hand out, just like it did in 2009 when the state’s $27 billion budget whole got filled by federal stimulus money – provided by a Democratic president and a Democratic Congress. So the Republican leadership as well as GOP legislators in both bodies will have the federal government to kick around again — an interesting contrast to their other object of scorn, local government — even as they rely on both, the former for funds and the latter to manage the day-to-day of both the vaccine distribution that is central to the state’s (apparent) planned recovery, and the increased needs of the Texans whose first point of contact is local government. But there should be no doubt about the centrality of federal funds to Texas moving forward, a fact seldom acknowledged by the party in power. According to data from the Texas Comptroller, since 2003, federal funds have constituted slightly more than a third of Texas' net revenue, a figure which climbed to 41% in the last fiscal year, when revenue plummeted as a result of the pandemic and the bottoming out of the oil market. There can be no doubt that the Republican leadership in the state will be using unitary government in Washington as a foil before the weather in Texas warms up again. But the legislature will keep taking the money.