Forrest for the Trees

Patrick Michels

Judging from the reaction of national pundits and journalists, the verdict in the case of State of Texas vs. James Richard “Rick” Perry is already in: Rick Perry is not just innocent, he’s being railroaded by liberal Democrats in a vindictive, politically motivated prosecution. The rush to judgment happened almost immediately after the indictments came down on Friday, even as our friends in New York and Washington confessed that they knew little of Rick Perry’s legal troubles and in some cases hadn’t even read the two-page indictment, much less bothered to understand the issue in the larger political context. Jonathan Chait at New York Magazine called the indictment “unbelievably ridiculous” and fulminated that Perry “is exactly as guilty as” a “ham sandwich,” referring to the old saw that a good prosecutor could indict a ham sandwich.

On Twitter, top-shelf pundits were even more dismissive:

Perry indictment seems like weak sauce at first blush. Basing that on almost no info. So grain, salt etc.

— Joseph Weisenthal (@TheStalwart) August 16, 2014

Definitely crowd-source it. RT @mattyglesias: Does anyone think this Perry indictment makes sense?

— Forrest Wilder (@Forrest4Trees) August 16, 2014

Obama adviser David Axelrod, who knows a thing about expansive executive authority, weighed in:

Unless he was demonstrably trying to scrap the ethics unit for other than his stated reason, Perry indictment seems pretty sketchy.

— David Axelrod (@davidaxelrod) August 16, 2014

Axelrod’s tweets led to headlines such as “Rick Perry: Even David Axelrod Thinks Indictment Is ‘Sketchy.’”

The New Yorker’s Amy Davidson wrote that she “felt sorry” for Rick Perry and compared the case against the governor to the congressional Republicans’ lawsuit against Barack Obama.

Even legal analysts seemed strangely lazy about the whole thing. UC-Irvine law professor and blogger Rick Hasen admitted he hadn’t “studied Texas law or the indictment closely enough” but nonetheless went on to make the sweeping claim that the indictment represents the “criminalization of politics.”

Among elite commentators, this seems to be the emerging consensus—that the pursuit of Perry somehow was a fundamental departure from legal norms and represents an attack on the very practice of politics. Incidentally, this is precisely the line that Rick Perry is taking. On Saturday, he called  the prosecution a “farce” and lamented that “some would use partisan political theatrics to rip away at the very fabric of our state’s constitution.”

Since uninformed speculation is apparently the coin of the realm, allow me to opine on what I think is going on. In the last few months, political reporters have begun writing the Rick Perry 2.0 Comeback story. National Journal had a particularly credulous piece—titled “The New Rick Perry”—that spent more than a thousand words allowing Perry to explain his decision to adopt those MSNBC glasses. More significantly, the piece basically chucked out almost everything we’ve learned about Rick Perry over his decades in politics to posit that he’s suddenly, mutatis mutandis, some sort of serious “bipartisan uniter” who’s shucked off the focus groups and polling and is finally just being his charming, fun-loving awesome self. It’s at best meta-level campaign bullshit, but this is how political journalism is practiced. The indictment—and the possibility that Perry could be knocked out of the running and even facing prison time because he’s a corrupt bully—blows a giant hole in the script.

There’s also a tendency on the part of political journalists to criticize anything that sanitizes the bloodsport of partisan politics. Like those football fans who belly-ache about new safety-conscious rules that “sissify” the game, political junkies are wedded to the idea that all’s fair in politics. That’s one reason, I think, why the press outside of Texas has been so incapable of seeing this through anything other than a partisan lens. The zealousness with which that line has been pursued—and reinforced by Perry’s allies—has led to some serious factual blunders and misconceptions. In the interest of trying to bring this episode back to reality, here are a few things to keep in mind.

Partisan Democrats Are Not Leading the Perry Prosecution

The criminal complaint against Perry was filed in June 2013 by the liberal Texans for Public Justice but it was assigned to a Republican judge in Bexar County who appointed Michael McCrum—a former police officer and prosecutor in the George H.W. Bush administration—as special prosecutor. McCrum was previously tapped by U.S. Sen. John Cornyn and former Sen. Kay Bailey Hutchison (both conservative Republicans) to be the U.S. Attorney for the Western District of Texas. There is no evidence that McCrum has a partisan axe to grind—quite the contrary.

The Travis County DA’s office, including Rosemary Lehmberg, had nothing to do with the indictment.

It’s Not About Rosemary Lehmberg’s Disgraceful Behavior… Or Even Perry’s Veto

As much as Perry and some in the media would like to make this about Lehmberg’s outrageous drunk driving—Perry’s legal team played a tape of her buffoon-ish behavior at the jail—the legal case against Perry is not about that.

I was someone who thought Lehmberg should have resigned for the simple reason that it is unseemly for a prosecutor guilty of drunk driving to send people to jail for the same crime. However, the process for removing Lehmberg is a local one. The local system opted not to remove her and Lehmberg pleaded guilty and went to jail. She plans to step down at the end of her term.

The Travis County DA is no different, in almost every respect, than the more than 300 local elected prosecutors in Texas. She is locally elected and is a servant of the jurisdiction she represents. The only thing unique about the Travis County DA’s office is that it contains the Public Integrity Unit, which polices corruption in state government. Practically speaking, this anti-corruption unit is one of the few checks on the power and influence Perry has accumulated over 14 years in office.

The Public Integrity Unit is largely funded by the Texas Legislature. That money isn’t earmarked for Rosemary Lehmberg; it’s earmarked for the oversight function of the Travis County DA’s Public Integrity Unit. It is that money that Perry threatened to line-item veto if Lehmberg did not resign. When she did not, and Travis County opted not to remove her, Perry then yanked the funding. Afterwards, he continued to make offers to restore the funding in exchange for Lehmberg’s resignation, according to media reports. One account says he signaled that he would find Lehmberg another well-paying job within the DA’s office. Had she resigned, Perry would have appointed her successor.

The criminal case against Perry centers on his “coercion” of a local elected official using threats and promises. It is not premised—as has been repeatedly misreported—on the veto itself. Craig McDonald, the head of Texans for Public Justice and the original complainant, has said as much. As McDonald told CNN:

“The governor is doing a pretty good job to try to make this about [Lehmberg] and her DWI conviction. But this has never been about his veto of her budget and about her. This is about his abuse of power and his coercion trying to get another public citizen to give up their job.”

There is a Lot We Don’t Know…Yet

It is quite possible that the case against Rick Perry will fizzle. Perhaps it is “flimsy” and “thin” and all the rest. Credible legal experts have said they think the prosecution will have a difficult time securing a conviction. However, none of us is privy to the evidence and testimony presented to the grand jury. According to Peggy Fikac of the San Antonio Express-News, McCrum said he “interviewed more than 40 people, reviewed hundreds of documents and read many dozens of cases.” Fikac and other reporters who staked out the courthouse long before the national press spent five minutes reading the indictment watched “current and former Perry staffers, Travis County employees and state lawmakers” entering the grand jury room over the summer.

It is possible that McCrum has gathered more information on Perry’s motives that will come to light later. Although the indictment doesn’t mention it, the Public Integrity Unit is investigating a scandal involving the $3 billion Cancer Prevention and Research Institute of Texas, a fund close to the governor’s office that suffered from cronyism and lax oversight. The Public Integrity Unit indicted one CPRIT official in December for deceiving his colleagues and awarding an $11 million grant to a Dallas biotech firm without a proper vetting.

What else, if anything, did McCrum turn up in his interviews and document search? At this point, we just don’t know.

This doesn’t make for explosive headlines but the fact is, we’re just going to have to wait and see how the case unfolds.

Patrick Michels

Attorney General Greg Abbott

Yesterday, we got a look at the arguments Greg Abbott is deploying at the Fifth Circuit Court of Appeals in favor of upholding Texas’ ban on same-sex marriage. His legal brief follows a decision in February by a federal district court judge in San Antonio that banning same-sex couples from marriage is unconstitutional and “demean[s] their dignity for no legitimate reason.” As state marriage bans crumble in rapid succession around the nation and public support (even in Texas) for marriage equality grows, it’s fascinating to see what arguments the attorney general of the nation’s biggest, boldest red state airs in front of the most conservative appellate court in the country. How do you win a battle when your side is losing the war? The 42-page brief contains many well-worn conservative hobby-horses as well as some startling views of sex and marriage. We’ll go into the details below but for those of you with short attention spans, here are a few highlights:

• Texas can ban same-sex marriage, Abbott argues, because the state has a legitimate interest in promoting procreation, a biological feature of the pairing of men and women. “Because same-sex relationships do not naturally produce children, recognizing same-sex marriage does not further these goals to the same extent that recognizing opposite-sex marriage does.”
• Abbott argues that Texas should ban same-sex marriage so outcomes can be studied and compared to states where it’s legal. “[S]ame-sex marriage has not existed long enough to generate reliable data regarding its effects,” the brief states.
• Gay people still have the freedom to marry… members of the opposite sex. “The plaintiffs are as free to marry an opposite sex spouse as anyone else in the State.”

• Abbott explicitly rejects the notion that marriage is primarily about love and commitment. “The primary purpose of legal marriage in Texas is to generate positive externalities (and avoid negative externalities) for society by encouraging responsible behavior among naturally procreative couples, not to publicly recognize the love and commitment of two people.”
• Abbott seems to suggest that legalizing same-sex marriage opens the doors to legitimization of other deviant behaviors. “If courts and litigants can create a constitutional right to same-sex marriage by defining it as part of a more general ‘right to marry,’ then any conduct that has been traditionally prohibited can become a constitutional right simply by redefining it at a higher level of abstraction.”
• Abbott warns the Fifth Circuit away from judicial activism, positing that moderate federal jurists will have trouble being confirmed in the future if same-sex marriage bans are struck down by federal courts. “Indeed, jurists who envision a modest or restrained role for the judiciary in resolving our nation’s disputes—such as Oliver Wendell Holmes, Learned Hand, or Henry Friendly—will likely become un-appointable.”

The crux of Abbott’s case is not all that different from what he put forward in the San Antonio district court. As the San Antonio Express-News put it in a headline yesterday: “Gay marriage ban instituted for kids’ sake.” But that’s not quite precise (which is fine; it’s a headline). If you read the brief closely, it actually has less to do with the well-being of children and child-rearing than it does with procreation. Well, not even procreation per se—more like, the statistical relationship between excluding gay couples from marriage and the increased likelihood of procreation within straight marriage.

The State’s recognition and encouragement of opposite-sex marriages increases the likelihood that naturally procreative couples will produce children, and that they will do so in the context of stable, lasting relationships. By encouraging the formation of opposite-sex marriages, the State seeks not only to encourage procreation but also to minimize the societal costs that can result from procreation outside of stable, lasting marriages. Because same-sex relationships do not naturally produce children, recognizing same-sex marriage does not further these goals to the same extent that recognizing opposite-sex marriage does. That is enough to supply a rational basis for Texas’s marriage laws.

Patrick Michels

Put another way: Abbott wants to ban gay couples from getting married to encourage straight couples to have children. Abbott cannot argue that marriage is about child-rearing, or the welfare of children, because gay couples are perfectly willing and able to raise children. (Indeed, gay couples raising kids in Texas face all sorts of legal problems because of Texas’ ban on same-sex marriage; the Abbott brief says not a word about this real-world problem for children and their parents, including Cleopatra de Leon and Nicole Dimetman, the plaintiffs in the case.) So he’s stuck saying that the state’s interest in banning same-sex marriage has to do with procreation. But what about lesbian couples who get pregnant via donor insemination or in vitro fertilization? What about straight married couples who choose not to get pregnant, are infertile or get married late in life? In any case, isn’t marriage now (but not always in the past, of course) more about love than it is purely procreation? Those are some of the objections that District Judge Orlando Garcia raised when he found Texas’ ban on same-sex marriage unconstitutional. Before delving into a clinical utilitarian argument, the brief gets a little philosophical—generous, even—on these points.

What is marriage? What is its nature? What are its purposes? Why ought the State to recognize it? People genuinely disagree about the answers to these questions, and it is that disagreement—not a desire to discriminate against anyone or to undermine the institution of marriage—that underlies the same-sex marriage debate.

With that thumb-sucking out of the way, Abbott addresses the obvious defects with the “procreation-focused view of marriage” (his phrasing).

[T]he plaintiffs and the district court are wrong to assert that recognizing infertile or childless opposite-sex marriages fails to advance the State’s interest in encouraging stable environments for procreation. By recognizing and encouraging the lifelong commitment between a man and woman—even when they do not produce offspring—the State encourages others who will procreate to enter into the marriage relationship.

By encouraging faithfulness and monogamy between a fertile person and an infertile opposite-sex spouse, these marriages—even though infertile—serve to channel both spouses’ sexuality into a committed relationship rather than toward sexual behavior that, for the fertile spouse at least, may result in costs that are ultimately borne by society.

But, still, how does allowing same-sex couples to marry discourage straight couples from getting married and procreating? Abbott argues that it’s enough for a same-sex marriage ban to pass constitutional muster “if one could rationally believe” that it “might be the case” that opposite-sex marriages are better for society than same-sex marriages. For gay couples who want to get married, Abbott hints at a solution: Find an opposite-sex partner.

All persons in Texas—regardless of sexual orientation—are subject to the same definition of marriage, and the plaintiffs are as free to marry an opposite-sex spouse as anyone else in the State.

I have no idea if Texas will prevail at the Fifth Circuit. The cause of marriage equality has done very well so far at the district court level and just yesterday a three-judge panel for the Fourth Circuit Court of Appeals in Virginia struck down that state’s ban. Ditto for the 10th Circuit Court of Appeals. The Fifth Circuit is the most conservative in the nation, so Abbott has that going for him, and he pulled out all the conservative stops in his legal brief, signaling to the justices that they would be on the right side of tradition, history, judicial restraint, the democratic process and, yes, the kiddos. But you do get the sense from reading Abbott’s brief that the “anti” arguments have become enervated and do little more than paint a fast-fading bigotry with a thin coat of highfalutin legalese.

Patrick Michels

Wendy Davis

In July, Wendy Davis went on a seven-city campaign tour to call attention to Greg Abbott’s “decision to keep explosive chemical locations secret from parents.” In case you weren’t following along, Abbott decided in May to block public access to information about hazardous chemicals stored at certain facilities, including fertilizer plants like the one that exploded in West last year. Quizzed by reporters later, Abbott said citizens need only “drive around” their neighborhoods and ask companies for the information. It was a hilarious and stupid thing to say. One imagines weary moms and dads packing the kids into the car after a long day: “Dinner will have to wait, kids. We’ve got a full tank of gas and a long list of light-industrial facilities to cruise.”

Reporters and political wags had a field day with it. Local TV crews visited industrial sites, cameras in tow, to show the absurdity. Rachel Maddow ran a 22-minute segment on the issue. The Observer sent letters to chemical facilities, asking for a list of chemicals reported on what are called Tier II forms—two of the four fertilizer plants we contacted refused. “Who the hell is Greg Abbott?” one owner asked us.

Davis decided to make it a major issue. Ahead of her tour, she announced a proposal to strengthen the Texas Community Right to Know Act, the primary law requiring businesses to disclose the location and quantity of certain dangerous chemicals.

There’s no doubt that Abbott screwed up. And you can’t fault Davis for seizing on the issue. How could she not? The media jumped all over the story because nothing pisses off the press like being denied access to information. But while Davis’ emphasis on a fairly obscure issue—We Want Our Tier II Reports!—generated headlines and won a few news cycles, it seems unlikely to excite the electorate, much less bring to an end two decades of losses for Texas Democrats.

It’s part of a larger pattern for Davis. Her campaign has been largely reactive, keying off Greg Abbott’s mistakes rather than articulating a vision for Texas. For long stretches, the Davis campaign has talked about little more than the latest outrage from Abbott’s supporters: In May, a Republican woman in Midland paid a California artist to design a grotesque poster depicting Davis as a pregnant “abortion Barbie.” The campaign sent out no fewer than five Buzzfeed-style fundraising emails about that. It’s the kind of minor outrage inducement that an Internet-saturated generation is addicted to, but it wears off fast.

On women’s health and abortion—the issues that launched Davis into the political stratosphere—she’s said little. At an event celebrating the one-year anniversary of her filibuster, Davis barely mentioned a woman’s right to choose. Worse, her campaign attempted to reinvent her filibuster as a fight against “Austin insiders.”

It is understandable that Davis hasn’t made abortion—or even women’s health—a cornerstone of her campaign. This is Texas, after all, and it’s wise for a Democrat to run on issues that are more unifying. But why not a seven-city tour on, say, Medicaid expansion? Expanding Medicaid under the Affordable Care Act will not only save lives and put more than a million Texans on health insurance, it’s a terrific deal for the state. The feds will pay 90 percent of the cost. By rejecting the expansion, Rick Perry and Abbott are leaving $100 billion on the table, according to recent estimates. 

It’s good politics too—even if Republicans start hollering about “Obamacare.” (They will anyway.) Democratic governors in some red states, like Kentucky, have made Obamacare a winning issue. In Arkansas, Gov. Mike Beebe—one of the most popular governors in the nation—got a Republican-controlled Legislature to sign off on a Medicaid model that uses federal dollars to help people buy private insurance. That’s the same basic idea touted by some Republicans in the Texas Legislature. Polls, including one by Rick Perry’s own pollster, also show that a solid majority of Texans favors expanding Medicaid.

Davis, when asked recently by MSNBC’s Chris Hayes, was unequivocal in her support (“I absolutely do”) for Medicaid expansion. And in mid-June, she unveiled her economic development plan, which included Medicaid expansion. But otherwise she’s rarely discussed health care so far. The word “Medicaid” doesn’t appear once on her campaign site. 

Democratic strategists I spoke with cautioned that it’s still early in the campaign; that the Davis grassroots effort feels and sounds different than the “messaging” in the media; and that her team has been frustrated by the media’s indifference to her policy ideas.

As Paul Burka of Texas Monthly has pointed out, if she made it a central issue she’d have the doctors on her side, the hospitals, and much of the business community, not to mention local governments and—most important—millions of Texans who would see the benefits of healthier families. 

Maybe I’m naive, but I like to think that this is the kind of alternative that Texans fed up with the tea party, and with “Austin insiders,” are craving. 

Forget about the policy merits for a moment. Davis needs to find a way to be a hero again. Right now, she’s a focus-grouped, poll-tested, highly mediated, stage-managed candidate running a somewhat moribund campaign. I’m aware that it’s almost cliche for a journalist to call for a candidate to “be herself” or “take off the gloves” but Davis is no ordinary candidate. To many, she’s Wendy, the inspiring and brave woman who put her body on the line and stood up to a bunch of bullies. Where did that Wendy go?

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Outgoing San Antonio Mayor Julian Castro convinced voters to pass a tax increase in 2012 to help fund full-day pre-K.

Rick Perry is fond of saying that the 50 states are “laboratories of innovation” where the real work of democracy occurs.

Quick—name one innovation the Texas Legislature has produced in the last, say, three sessions. Name one big idea of Rick Perry’s during his 14 years in office. And no, colossal failures like the Trans-Texas Corridor and HPV vaccinations for teen girls don’t count.

But Perry does have a point: The descent of the Congress into a depressing burlesque of corruption and gridlock has made state government more important than ever. But in Texas, state government is increasingly suffering from the same malaise we see in Washington, D.C.: small-mindedness, ideological extremism on the right and a toxic anti-government strain that ricochets between a steadfast unwillingness to use the public sector to solve problems and an active campaign to dismantle successful programs. The list of things the Texas Legislature ought to address, but doesn’t, could occupy many column inches. If anything, it’s going to get worse before it gets better (if it gets better), due to the tea party takeover of the Texas GOP.

Perry wants to wage a war of state vs. state and state vs. fed, but in Texas it is our cities—especially the big six of Austin, Dallas, El Paso, Fort Worth, Houston and San Antonio—that are left to seriously grapple with citizens’ most urgent needs. While Texas cities are by and large run by Democrats, their leadership tends to be—by necessity and by tradition—progressive but pragmatic. Think Julian Castro of San Antonio or Annise Parker of Houston.

In city government, the corrupting influence of corporate dollars doesn’t have the same reach, and citizens are simply more engaged. You go to a city council hearing and it’s packed with ordinary folks; you go to a legislative hearing and often you can’t find a seat not taken by a lobbyist.

And city government is about more than potholes and trash service. Cities are increasingly taking on the tasks that state and federal government won’t. A few examples:

The Texas Legislature is so overrun by money from predatory payday lenders that it refuses to impose even the most cursory of regulations to deal with runaway interest rates and a vicious cycle of debt. So this arcane area of consumer finance has fallen to the cities to deal with. At least 18 Texas cities have passed payday loan ordinances over the past three years, including conservative strongholds such as Midland. Unlike at the Legislature, the lenders’ arguments about tampering with the free market were unpersuasive compared to the outcry of faith groups, community activists and borrowers.

Also, the Lege has taken a completely laissez-faire attitude toward fracking, ignoring the complaints of residents around the state that drilling in sensitive and populated areas may have downsides that need to be addressed. Cities have tried to step up. In Denton, city leaders and a bunch of pissed-off citizens are considering desperate measures—including a total ban—to deal with the glut of fracking activity in the area. The City Council, which is mixed on the ban, has nonetheless imposed a moratorium on new drilling until September.

In San Antonio, Mayor Julian Castro, who is stepping down to become President Obama’s Department of Housing and Urban Development secretary, convinced voters to pass a bona fide tax increase in 2012 to help fund full-day pre-K—a response, in part, to cuts the Legislature made to its pre-K funding.

And in Austin, city and county officials are dealing with the thorny issue of how to finance the infrastructure needs of a boomtown without pricing working people out of the city. Property values are soaring, but wages aren’t keeping up. The lack of a state income tax and the stinginess of state budget writers means local governments must rely overwhelmingly on property taxes to pay for services, infrastructure and public schools. It’s never been a particularly equitable system, but cities like Austin, which are transforming from regional hubs to major-city status, are groaning under the burden. State lawmakers have designed a system that allows commercial property owners to wriggle out of paying their fair share, pushing more and more of the load onto homeowners.

Texas’ other big cities face similar problems with the state’s dysfunctional tax system. This is one that local government can’t solve without help from the Legislature.

“Local control”—a long-standing Texas tradition—shouldn’t mean “you’re on your own.”  

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Beto O'Rourke

A lot of Texas politicians are having a political pachanga with the influx of child refugees fleeing Central America.

Rick Perry has practically lived in front of a TV camera over the last month, talking tough about a border crackdown, bashing Obama for not visiting the Rio Grande Valley, and posing with Sean Hannity on a DPS gunboat. On Monday, the governor—joined by Lt. Gov. David Dewhurst and Attorney General Greg Abbott—announced that he was dispatching 1,000 National Guard troops to the border, part of a Texas-led border surge costing $12 million a month. Ted Cruz is floating a proposal to roll back modest protections afforded by President Obama to DREAMers. Wendy Davis keeps calling on Perry to declare a state of emergency and hold a special session on immigration at the Texas Legislature—for reasons even her most ardent supporters have struggled to articulate.

Sen. John Cornyn and Congressman Henry Cuellar, a Laredo Democrat, are sponsoring the hopefully named HUMANE Act, which would undo rewrite a 2008 anti-trafficking law that allowed children from countries other than Mexico and Canada to be released to family members in the U.S. while their cases are processed. Under the proposed legislation, Central American kids—six, seven, eight years old—would have to convince a Border Patrol agent that they should be allowed to stay in the U.S. long enough to plead their case, and then would have just seven days, probably unassisted by an attorney, to make a case for asylum, or other protections, in front of an immigration judge. The effect—and one assumes, the intent—would most likely be to greatly diminish the number of children and families receiving asylum and refugee protections.

The most powerful politicos in the state pretty much agree: the border is in crisis, the Central American children are a sad case but, alas, must be deported and the federal government is all to blame. Unspoken: The border crisis makes for great election-year politics.

For Congressman Beto O’Rourke (D-El Paso), it’s all sickeningly out of touch with reality. There is no border crisis, he told me in an interview on Tuesday. Apprehensions are at historic lows. El Paso, and other border cities, are among the safest in the nation. In any case, the U.S. bears much responsibility for the conditions in Central America driving the exodus. And we should be expanding protections for refugees, not gutting them. The HUMANE Act—or as he calls it, “the quote-unquote HUMANE Act”—is a “very short-sighted, inhumane, irrational response” to a flood of refugees that deserve compassion, not neglect or opprobrium, O’Rourke said.

It’s not exactly the message you’re hearing from Texas elected officials. But O’Rourke, who grew up in El Paso and speaks fluent Spanish, brings a border sensibility to the issue, tempered by a wide-angle internationalism that’s a rarity among Texas pols. He’s more Open Veins of Latin America than Fox News.

O’Rourke is but a freshman congressman in a Republican-controlled House, so his ability to craft policy in Washington is admittedly limited. But he’s pledging to work within the Democratic caucus to torpedo the HUMANE Act, especially if it’s tied to the president’s $3.7 billion request for funding to pay for handling the surge of child refugees.

Beyond the legislation, O’Rourke offers a remarkably different perspective on border and immigration realities than the hysteria that’s taken hold in some quarters. Here are some highlights of our interview:

On the HUMANE Act:

“I’m trying to find polite words, quotable comments. It’s terrible legislation, I find nothing redeeming in it. It will rush these kids back to the communities from which they fled, which in many cases will almost certainly mean death, will mean suffering, and adding to the workforce of these criminal syndicates that are pressing them into service in cities like San Pedro Sula in Honduras.”

“One of the terrible bargains that whoever was here in 2008 made was in order to treat child refugees or child asylum-seekers from other countries humanely we will not treat asylum seekers from Mexico humanely, so we’ll reduce the level of due process that they get. So what Cornyn, Cuellar and [Rep. Ron Barber (D-AZ)] want to do is take that reduced level and apply it to everyone else, and obviously that means the kids from Guatemala, El Salvador and Honduras.

“The HUMANE Act changes the [asylum] framework and accelerates it so that within seven days—and I’ve got three little kids and I can only imagine them having to struggle with this—within a week they have to prove to a judge in a language that’s not their own, without the assistance of an attorney, that they should qualify for an asylum process, a trafficking visa or some other legitimate reason to stay. If they can’t, they are deported—that’s so wrong on so many levels. And we can see the evidence from how we’ve treated children from Mexico: This almost certainly guarantees that the vast majority—I think in the case of Mexican children it’s been well over 90 percent—will be returned to their country of origin. And we know what’s going to happen to those kids.

“I’m confident, absolutely confident that once my colleagues have the facts and realize what this will do to kids they will also vote against it.”

On why Cuellar would sponsor the HUMANE Act:

“That is what has been so hard to understand for me… You’re asking a really good question. Why these kind of—I don’t know what the right word for them is—these proposals that just really don’t make any sense and aren’t responsive to what we’re seeing and what we know about the border. That I don’t know.

“It is not helpful when you have Democrats who traditionally have been the party that would want to see due process, especially for kids fleeing violence, who I feel like have upheld some of the best humanitarian traditions of this country, it makes it tough when you have Democrats sponsoring bills like the the HUMANE Act, which for all the talk and attention could become part of this deal, then it becomes much harder to say any one party is responding appropriately.”

On the notion of a border “crisis”:

“We really don’t have a crisis. You look at total apprehensions this year, last year, the year before, the year before that, we’re at an all-time historical low. If you compare the data as of June this year and compare it to 1999, you’re down about 68 percent in terms of apprehensions at the southern border. It’s not a law enforcement problem. Cities like El Paso are safer than any other city in the country. The U.S. side of the U.S.—Mexico border is safer than the average American city.”

On the root causes of the exodus from Central America:

“You look at these three countries and the enormous stresses that are placed on them right now, whether it’s the volume of drugs being trafficked through them, whether it’s our drug interdiction efforts that are further destabilizing civil society there.

“A much more difficult, but probably much more fundamental issue, is just the very long history of U.S. involvement in Central America to the detriment of the people who live there going back to Jacobo Arbenz to the military strongmen who succeeded him to the tens of thousands who were killed to our involvement in the civil wars in the 1980s to the kids—and you’ve probably seen this in the [Observer] archives—you look at the reporting in the mid-’80s, kids are fleeing Central America for the United States, many of them because we had no process then to accept them.

“There was no trafficking victims law, so they weren’t sent over to [U.S. Health and Human Services]. Many of them ended up in jails and became hardened criminals, got involved in gangs and then upon release from jail are deported back to the countries where they haven’t spent the majority of their lives in, and end up organizing gang cells, essentially, in those countries and helping to contribute to the problem we see today.

“We’ve tried our best to ignore Central America, prioritizing Pakistan, Afghanistan, Iraq, Iran, Israel—all for good reasons, it seemed at the time, but we neglected [Central America] and the consequence is that there are now literally tens of thousands of kids literally knocking on our door, saying ‘Hey, what about us?’ And we’ve got to do something about it. And I think the very short-sighted, inhumane, irrational response is embodied in the HUMANE Act. You can deport those kids back and some of them are going to be killed, many of them are going to be hurt and live worse lives for being deported, but those problems aren’t going away.”

On what should be done:

“No. 1, let’s get these kids attorneys. Anyone who has children can put themselves in the place of the parents of the children who are now in this process. When you can do that, when you can empathize, you immediately understand that those kids need an attorney. These are really complex laws, these are frightening situations and to put a child before an immigration judge at age 7, 8, 10, 11, 12 without an attorney is just wrong and on the flip side to give that child counsel allows them to tell their story, to make a legitimate application for asylum. And we will find in some cases that there is not a legitimate case, that they have not passed the credible fear bar and they should be sent back to their country of origin. That’s a very difficult thing to say but that’s going to have to happen in some cases. But I think we will find in quite a number of these cases, and I would argue in the great majority of them, that we have legitimate asylum requests and they should be honored. That’s just the right thing to do…

“The most important, most difficult and long term answer, is to help get these countries back on the right track. We know that kids and families leaving these three countries are not just going to the U.S. Asylum applications in neighboring countries are up 700 percent over the last five years. So let’s work with Mexico, Belize, Costa Rica, Nicaragua and join them with these three countries—Honduras, El Salvador and Guatemala—and come up with a truly regional response. Part of which is just gonna be let’s acknowledge that we need to take some of these children and families. They are legitimately refugees.

“And then we need to address the civil society, rule of law, governance, corruption issues in these three countries that have made life so unbearable and so unsafe. And that’s why I say it’s so difficult. That’s a many years process. There are sovereignty issues, there’s a lot of history with the U.S. in these countries that’s not necessarily positive. So it’s going to take a lot of doing. But if we are so bold to think we can solve the impasse between Israel and Palestine, if we think we can build nations in Iraq and Afghanistan, all of which may or may not be the right thing for us to be involved in, certainly these countries in our own hemisphere whose citizens are literally knocking on our door right now, that deserves our attention. I think it’s going to be very difficult to do, but very doable once we decide we want to do it.”

Correction: The original version of this story stated that the HUMANE Act would “undo” the 2008 William Wilberforce Trafficking Victims Protection and Reauthorization Act. It is more accurately described as rewriting that 2008 law. The story has been corrected.

Office of the Governor

Rick Perry at a press conference in Weslaco

Rick Perry has a plan for the thousands of refugee children streaming across the border from Mexico and Central America: Deport them at once. At a congressional hearing in McAllen today, the governor did his best to sound compassionate while calling on Congress and President Obama to further militarize the border and enact mass deportations of children despite laws and rights protecting refugees and asylum-seekers.

“People think allowing them to stay in the U.S. is doing them a favor,” he said. “It is not. Allowing them to remain here will only encourage the next group of individuals.”
Perry downplayed the deteriorating situation in Honduras (presidential coup in 2009, homicide capital of the world), Guatemala and El Salvador—the source of most of the unaccompanied minors—instead blaming Obama and drug cartels for the exodus of kids.  And he nodded, ever so slightly, at some of the wilder notions of what’s driving the surge in child refugees.

“I truly believe this is manufactured to some degree by the drug cartels,” Perry said.

He went on to suggest that U.S. policy toward the influx of unaccompanied minors should be a response to the drug cartels’ “change in tactics.”

As with many things border- and drug war-related, Perry’s glib solutions had a perverse, ironic logic. By most published accounts, including hundreds of interviews with unaccompanied minors conducted by the United Nations High Commissioner for Refugees, the child refugees are fleeing abuse and extreme violence, much of it cartel-related, in their home countries. (Many of them, it’s important to note, are seeking asylum in countries other than the U.S.; according to the UN, Mexico and more stable Central American nations registered a 435 percent increase in asylum claims from Guatemala, El Salvador and Honduras between 2009 and 2012.) Is the best way to fight the cartels to deport kids back to the cartel-plagued communities they just fled?

Experts contend that deporting them back to their homes could lead to certain death or conscription by the cartels. “This expedited deportation thing will kill children,” said Amy Thompson, a social work Ph.D. student at the University of Texas who authored a 2008 report on unaccompanied minors. “Children will die because of this.”

Thompson said that U.S. policy on how to treat unaccompanied minors largely takes a law enforcement approach that emphasizes deportation and not the safe repatriation of kids following child welfare standards. The U.S. does little to ensure that when children are sent home that their return is coordinated and safe.

Still, minors from countries other than Mexico have some extra protections under the 2008 reauthorization of the Trafficking Victims Protection Act. Today, congressmen at the hearing suggested that the law needed to be overhauled by making it easier to deport the Central American kids without looking closely at their situation. Children, some as young as four or five, would have to convince border agents that they deserve to have a chance to stay. Such a change would be along the lines of what Obama is asking from Congress. Gutting it would mean reversing decades of work by child welfare advocates to secure additional consideration for the most vulnerable immigrants.

But Republicans at the committee hearing today went even further, trying to conflate the child refugee crisis with a larger narrative about sealing the borders from terrorists and cartels.

Perry struck what might be termed a “si se puede!” (yes we can) tone, repeatedly telling the committee that he “truly believes” the border can be sealed.

“You can secure the border,” Perry said. ” We can do this…We’ve got the resources.”

That line was echoed by other Texans on the committee, including chairman Michael McCaul (R-Austin), who said, “Now’s the time to finally secure the border.”

No matter that apprehensions of those crossing illegally are at historic lows or that refugees are a protected class different from immigrants.

Immigrant advocates and some Democrats on the committee tried to make that distinction.

“These children have been forcibly displaced,” said Rep. Sheila Jackson-Lee (D-Houston). “A massive deportation or detention policy for children is not a humane thing to do.”

But Perry’s solution has a seductive simplicity. The talisman of sealing the border—just like winning the War on Drugs or defeating terrorism—is so powerful because it can never be accomplished; the militaristic tools to achieve the elusive 100-percent security often exacerbate the problem; and every failure to achieve the goal only leads to a doubling-down. Even a child can understand that.

Office of the Governor

Rick Perry at a press conference in Weslaco

Beneath the compassion expressed by Texas’ top elected leaders for the Central American kids pouring over the border lurk some dangerously uninformed, untenable and inhumane proposals.

Rick Perry, for example, has mixed empathy for the kids with calls to action that could lead to even worse suffering for the unaccompanied children and their families. Wendy Davis has inexplicably called for a special session of the Texas Legislature to deal with the situation, which would probably be as productive as those special sessions on abortion.

By treating what is arguably a refugee crisis like a national security threat—with the attendant calls for sealing the border and ratcheting up exaggerated fears of disease and “Amnesty!”—it’s inevitable that we’d end up with a martial approach.

Following a visit to a Border Patrol detention facility in McAllen, Rick Perry penned an op-ed this week that is uncharacteristically interested in human suffering but ultimately amounts to so many crocodile tears:

The first thing I saw was a boy crying. Terrified and sobbing against the window of the holding cell, he couldn’t have been more than 12 or 13. The room was full of other young boys, their curious eyes peering out at us as we walked by. These were the ones who made the trip alone.

[...]

The very real human consequences of our country’s lax border security and muddled immigration policies huddled right there, under an open shelter in the stifling Texas heat.

Anyone with a heart, including Perry, would be moved by the sight of some very brave, and one assumes, very scared kids, who’ve just made a dangerous trek thousands of miles to a foreign country, only to find their lives as precarious as ever.

The governor also struck a thoughtful, if vague, note on the general outlines of the problem:

This is a complex situation and a growing humanitarian crisis that will require a multifaceted solution.

All well and good. But what does Perry propose?

The U.S. needs to act decisively. First off, the federal government needs to make it crystal clear that attempting to cross our border illegally simply isn’t worth the considerable risk. People in Guatemala, El Salvador, Honduras and elsewhere who are considering making the trip need to know that they will be immediately sent back to their country of origin when they’re detained, not sent to various locations across the United States or placed in the care of loved ones.

[Emphasis mine]

Although the context does not make it entirely clear, it appears that Perry is proposing that immigrants from Central America be immediately deported back to their home countries. According to immigration attorneys, this would be illegal, untenable and reverse this nation’s recognition of the rights of refugees, asylum-seekers and others who have a legitimate claim to remain in the U.S.

“That’s just flat wrong,” said Dan Kowalski, an immigration attorney in Austin. “The only people who are being sent back immediately are those who agree to be sent back. … That can’t happen under federal law. You’d have to get Congress to change the statutes. We also have one or two treaty obligations.”

Typically, unauthorized immigrants caught at the border—if they’re not prosecuted first—are put into deportation proceedings and will, if they stick it out, be ordered to appear before an immigration judge. No attorney is provided to them. There are a number of reasons why a judge might allow an immigrant to stay: She’s a bona fide asylum-seeker, she’s a victim of violence and can help U.S. authorities solve a crime, she’s a refugee, etc.

The unaccompanied kids from Central America, in particular, could have compelling claims. A recent United Nations report, based on interviews with 404 minors who entered the U.S. in the past few years, found that 58 percent “were forcibly displaced because they suffered or faced harms that indicated a potential or actual need for international protection.”

Barbara Hines, who directs the immigration law clinic at the University of Texas School of Law, wrote in an email that the Central American children are afforded “special protections under the law and may qualify for reunification with family in the U.S., special immigrant juvenile status or asylum, depending on their circumstances. Second, under our international law obligations, incorporated into the immigration statute, a person fleeing persecution may not be returned to his or her own country if he/she establishes a fear of persecution. So clearly not everyone can be sent ‘immediately back’ as Perry claims.”

There’s also the glibness of Perry’s solution. If you care about these kids, then you have to care about what would happen to them if you booted them back over the border. Melissa del Bosque reported extensively in 2010—where was Rick Perry then?—on the fate of Mexican minors who are deported back to Mexico. Some of them, abandoned, become victims of violence or rape, fall into the hands of cartels, or meet fates we’ll never know. Others, desperate to flee the violence and poverty of their homes or eager to reunify with family members in the U.S., will attempt to cross over and over again. “Where I come from,” one 15-year-old Mexican boy told Melissa, “we’re not afraid to die.”

And what does Wendy Davis have to say about the “humanitarian crisis” at the border?

In a letter to Rick Perry, she mostly echoed the Republican-led effort, including the deployment of Texas law enforcement to the border. She did suggest that “adequate food, shelter, clothing and healthcare are equally important” but proposed a special session of the Legislature to take up how to pay for it—an idea that was roundly condemned and mocked by immigrant advocates. John-Michael Torres, an activist in Mission in the Valley, wrote on his blog that a “special session would open the legislature to a flood of anti immigrant bills. We’d see a repeat of 2011, when more than 90 anti immigrant bills were introduced.”

Davis also called on Obama to provide “a sufficient number of [immigration] judges” to provide for “immediate hearing[s]” for the Central Americans. How such judges could be found, trained, deployed to the border and provide due process in adjudicating complex claims “immediately” she didn’t explain.

This also didn’t sit well with activists. “So basically a call for more immigration judges without a call for additional legal aid means a faster deportation process,” wrote Torres, who helped organize a “Facebook bomb” of Davis’ Facebook page in response. “So she wants to deport them back to the extreme violence they’re fleeing. WTF.”

But after Torres and his group, La Union del Pueblo Entero, targeted Davis, her campaign pointed them to a letter she had sent Obama on June 23rd. The letter is very similar to the one that she sent Rick Perry but with one key difference: She asked Obama to provide for attorneys ad litem for the kids in addition to more immigration judges. I’ve asked the Davis campaign for clarification on why this wasn’t included in her widely touted letter to Perry.

Kids crossing the border alone is not a new issue. Folks on the front lines have been struggling with this vexing phenomenon for years. Politicians who show up during a crisis moment proffering quick-fix solutions will do more harm than good. It’s easy to express some cheap form of empathy. It’s much harder to come up with real solutions. On that thought, I’ll leave you with what Melissa wrote in 2010:

If government leaders could rise above the divisive politics, they could stop this humanitarian crisis. Mexico and the United States have binational accords and a repatriation program to protect migrant children, yet neither country ensures they’re safely returned home. The U.S. Border Patrol and the DIF could set up a database to monitor children at risk to prevent them from ending up on the streets. The U.S. Congress could pass comprehensive immigration reform that includes a family reunification process to prevent children from being dumped in Mexican shelters. The Border Patrol already has a congressional mandate to screen for vulnerable kids and refer them to U.S. agencies that can help, yet advocates say it’s not being done. One thing is for certain: Until politicians on both sides of the river eradicate the poverty that uproots these families, children won’t stop coming. Even if the United States puts soldiers on the border and spends billions on fences and high-tech equipment, they’re not going to stop the exodus.

Timothy Faust

Texas GOP Convention 2014

For connoisseurs of WTF—I’m looking at you trolls—there is but one ur-text, the guiding document from which all others emanate, and are compared to. And though it is based on immutable laws of nature and God, it is nevertheless a living document too, revised every couple years by a gathering of wise men and women, who puzzle and debate over the text with the passion and intensity of a gathering of Talmudic scholars. I am of course referring to the Texas Republican Party platform.

The Texas GOP convention is meeting this week in Fort Worth and one of the most important items of business is revising the Platform—a task that is taken very, very seriously by many of the delegates. The Platform isn’t binding on Republican elected officials (though some in the grassroots would like it to be) but it matters for symbolic reasons. It’s also a fascinating glimpse into the id of conservatism. The folks who write it are the true believers and this is their wish list, their vision of a world that conforms to their ideals and beliefs. The Platform (I’m capitalizing “platform” in honor of The Platform’s RANDOM use of Capital Letters) is also contested ground: the turf on which the GOP’s various factions fight, usually over brown people and immigration.

This year’s Platform debate features a reprise of sorts from last year, when less xenophobic, more practical GOP-ers jettisoned a part of the platform that ranted at length against amnesty and undocumented immigrants. The reformers instead fashioned something grandiosely named the “Texas Solution,” a rather vague and untenable guest worker program that was nevertheless widely praised in the media because it seemed at least somewhat tethered to reality.

The anti-amnesty crowd this year wants to delete the “Texas Solution”—an updated version of which cleared the temporary Platform committee—and that fight is likely headed to the floor of the convention for a public fight.

Meanwhile, what’s in the Platform at this point? Here are some of the items that caught my eye in an early draft that leaked Wednesday.

Unlike the 2012 Platform, this year’s Platform takes on climate change—or what the GOP calls “climate change”—that international, multi-decade conspiracy among thousands of scientists and governments to artificially increase the planet’s temperature in order to secure that sweet, sweet grant money.

While we all strive to be good stewards of the earth, “climate change” is a political agenda which attempts to control every aspect of our lives. We urge government at all levels to ignore any plea for money to fund global climate change or “climate justice” initiatives.

The Platform committee has left in its unequivocal opposition to the United Nations’ diabolical Agenda 21.

The Republican Party of Texas should expose all United Nations Agenda 21 treaty policies and its supporting organizations, agreements and contracts.

They also are freaked out about various international commie plots to control the kiddos: CSCOPE, Common Core and “UN Inclusion.”

We oppose use of a national or international core curricula in the State of Texas (i.e. Common Core, CSCOPE, UN Inclusion, etc.)

They like the 10th Amendment (God-given states’ rights) and the 2nd Amendment (God-given gun rights). But the GOP is not too happy with the pesky 17th Amendment, which provides for the direct election of senators, like, say, Ted Cruz.

The draft Platform calls for the “full repeal” of the 17th.

Return the appointment of U.S. Senators by the State Legislatures.

The Platform addresses socialism: It’s bad. Against it.

Socialism breeds mediocrity. America is exceptional. Therefore,
the Republican Party of Texas opposes socialism, in all of its
forms.

Note: If America is exceptional and socialism isn’t (since it’s mediocre) therefore Barack Obama has not plunged America into socialism. QED.

The Platform has arguably gone backwards on The Gay Issue, at least in one respect. The draft actually endorses the wholly discredited, cruel and laughable-if-it-wasn’t-so-damaging “reparative therapy” racket that attempts to turn gay people straight.

Homosexuality must not be presented as an acceptable alternative lifestyle, in public policy, nor should family be redefined to include homosexual couples. We believe there should be no granting of special legal entitlements or creation of special status for homosexual behavior, regardless of state of origin.

Additionally, we oppose any criminal or civil penalties against those who oppose homosexuality out of faith, conviction, or belief in traditional values. We recognize the legitimacy and value of counseling which offers reparative therapy and treatment to patients who are seeking escape from the homosexual lifestyle. No laws or executive orders shall be imposed to limit or restrict access to this type of therapy.

Oh, wow, The Platform endorses “a woman’s right to choose…”

We strongly support a women’s [sic] right to choose to devote her life to her family and children.

The UN Treaty on the Rights of the Child, which has been ratified by every nation on the planet except for Somalia, South Sudan and the United States.

We unequivocally oppose the United States Senate’s ratification of the United Nations Convention on the Rights of the Child.

Well, it goes on like this for 40 pages. The copy I have does not appear to be written in crayon but you can look for yourself.