Yet it is Perry’s June 17, 2001, record that seems more remarkable. In an assault on the Legislature in which he had served for five years, Perry vetoed 79 bills on the last day he could do so after the session adjourned, ensuring that no veto could be overridden.
Perry’s total veto count for the 77th legislative session was actually 82; he had vetoed three bills before adjournment. His 79 June 17 vetoes were quickly dubbed the “Father’s Day Massacre.”
No Texas governor had ever come close.
Bill Clements, an obstreperous Republican oilman elected with the help of Karl Rove while Democrats still controlled the Legislature, comes in a distant second, with 59 vetoes in 1989.
And Clements had been an elected governor. Twice in fact, the second time after losing as an incumbent and going home to Dallas for four years.
Six months before Perry went over the edge with executive power, he had been a lieutenant governor, waiting on the Supreme Court to hand down its Bush v. Gore ruling.
Lawrence Wright referred to the vetoes in the August 29 issue of The New Yorker, but didn’t address their content.
Vetoes are usually informed by ideology, or by red lines a governor warns legislators not to cross. Perry’s June 17 vetoes were all over the map. A few were ideological, such as Perry’s predictable rejection of a bill that would have allowed employee associations in the city of Houston to “meet and confer” with city administrators to discuss wages, benefits, or other workplace issues.
Texas is a “right-to-work” state, and any Republican governor would reflexively react to legislation that might make it easier for organized workers to discuss workplace concerns with their employers.
Other vetoes are so inexplicable they could only have been motivated by the governor’s decision to settle a score. Such as a bill passed by a Republican senator from San Antonio and a Republican representative from El Paso, which would have made a technical change in the process of licensing professional engineers.
No one on the committee that heard the bill had opposed it. Every witness who testified at the pro forma committee hearing supported it. The House passed the bill on a non-record vote. In the Senate, the bill passed 30-0 on the “Local and Uncontested Calendar.”
Yet a Republican governor rejected a Republican bill captioned “Revising regulation of the practice of professional engineering.”
ECLECTIC LIST—Dozens of Perry’s vetoes were equally bewildering. Consider:
A bill filed by an innocuous Corpus Christi Republican rep, which would have allowed municipalities to pass ordinances permitting drivers to park on a portion of a sidewalk if they did not block the sidewalk. A local bill filed by a Dallas Republican (who perennially fell into the “legislative furniture” category) that would have allowed Dallas police officers and firemen to use comp time to travel to Austin to testify before the Legislature. The bill was only halfheartedly opposed by the American Civil Liberties Union. It passed 30-0 in the Senate and 144-2 present-not- voting in the House. Only to be stopped on Perry’s desk. A bill filed by an El Paso Republican representative that would have required valet parking operators to carry liability insurance. (Perhaps this veto was informed by Perry’s rugged Texas libertarianism. “Texans have a choice whether to use valet parking services and may do so at their own risk,” he wrote in his veto proclamation.) A bill co-sponsored by a Republican senator and Republican representative, both from Dallas (and promoted by a lobbyist revered for his generosity with neophyte members and public-interest lobbyists). The Texas Automobile Dealers Association bill was opposed by the Consumers Union, which Perry normally treats as a subversive organization. Only one senator bothered to vote against the bill that added $25 to the cost of buying a car. Perry vetoed the only “motorcyclists’ rights” bill to make it through the session, which legislators probably passed in hopes of ending biennial lobbying rallies, in which bikers in denim, leather, and do-rags swarm the Capitol to demand freedom from helmets and legal protection from discriminating maître d’s. In his veto message the governor objected to designating bikers as a “legally protected class.”
The governor even slapped down a bill that would have removed from state regulation summer camps held on college campuses.
Perry’s vetoes came from out of nowhere. The governor’s legislative staff didn’t attempt to get in the way of the bills. Legislators didn’t get courtesy calls.
“This was mean-spirited,” a lobbyist told me. “This was the governor getting even.”
“There was no playbook that he was working from,” said a state employee who had been chief of staff for a legislator at the time.
“Everybody was shocked — Republicans, Democrats, members, and at the staff level — because it was so chicken shit.
“There was no overarching philosophical rationale. And the way he did it made no sense. If you’ve got a problem with a bill, fine, let us know, but don’t wait until it goes through the whole process.”
For Perry, killing legislation at the end of the process was precisely the point. Almost every bill he vetoed had been passed by a veto-proof super-majority. Perry was warning legislators that while he might be filling a vacancy caused by George W. Bush’s move to the White House, he had no intention of being a place holder.
If he hadn’t earned legislators’ respect as a colleague, as a commissioner, as lieutenant governor, or in his six months as governor, he would take it by force, unapologetically walking all over their bills.
CRUEL AND UNUSUAL—Not all the bills Perry vetoed after the 77th Legislature adjourned were small-bore attempts to regulate parking, licensing, and camp counseling. Some dealt with problems as persistent as drought in Texas.
Perry’s longest and most impassioned veto proclamation addressed a bill that required a judge to hold a competence hearing to determine if a defendant in a capital case were mentally retarded, a finding that would preclude the death penalty.
That’s not how Perry read the bill.
“To characterize House Bill No. 236 as a law to ban the execution of the mentally retarded is misleading,” Perry wrote in his two-page proclamation.
Who was misled? Certainly not anyone who had read this passage in the bill the Legislature sent to the governor:
“If … the court finds by a preponderance of evidence that the defendant is a person with mental retardation, the court shall sentence the defendant to imprisonment. … If the court does not find by a preponderance of the evidence that the defendant is a person with mental retardation, the court shall sentence the defendant to death […]”
Perry also missed the mark when he claimed in his veto proclamation that: “We do not execute mentally retarded murderers today.”
At the time, two recent Supreme Court decisions had put on hold the execution of one mentally retarded inmate on Death Row in Texas.
In the first decision (Penry v. Lynaugh, 1989), Justice Sandra Day O’Connor wrote that the Texas jury that convicted Johnny Penry and sentenced him to death should have been instructed that it could have considered his mental deficiencies as a factor in sentencing. The justices did not rule that execution of the retarded is “cruel and unusual punishment.”
The second Supreme Court decision (Penry v. Johnson) was handed down 13 days before Perry’s June 17, 2001, vetoes. Again Justice O’Connor wrote the majority opinion, which essentially held that a Texas judge had botched the retrial of Johnny Penry.
“A reasonable juror,” O’Connor wrote, “could well have believed that there was no vehicle for expressing the view that Penry did not deserve to be sentenced to death based upon his mitigating evidence [mental retardation].”
As in the first Penry case, the Court did not rule that executing the mentally retarded was unconstitutional.
Governor Perry was correct when he wrote — “We do not execute mentally retarded murderers today” — only in so far as the Supreme Court two weeks earlier had, for the second time, blocked the execution of Johnny Penry.
Penry, who raped and violently murdered a woman in Livingston, Texas, is serving three consecutive life sentences. He has an IQ of 58.
Jim Harrington is an Austin lawyer who directs the non-profit Texas Civil Rights Project. In 2001 he was a Senate committee witness in support of the ban on execution of the retarded.
Ten years after the fact, and working from memory, Harrington demonstrated a better grasp of the content of the bill than Perry did when he vetoed it. Harrington said the bill addressed two issues.
“One was that the reason you punish somebody is because they have knowledge of their culpability,” Harrington said in an interview. “That’s the question with mentally retarded people. The whole issue of culpability.
“The other was how to determine if the defendant is mentally retarded. Do you give it to a judge or to a jury? And the reasoning was, if you give it a jury and it is a heinous crime, they are going to make a finding of ‘not mentally retarded.'”
The bill that Perry vetoed in 2001 banned the execution of the mentally retarded and required that judges, not juries, determine competence.
“It was reprehensible, given our history and given where science was on this, to go ahead and make it easier to execute the mentally retarded,” Harrington said.
In 2002, the Supreme Court brought American criminal jurisprudence in line with the bill that Perry killed in Texas, ruling that the execution of a mentally retarded defendant is cruel and unusual punishment.
No High Court decision has slowed the execution of the mentally competent in Texas. At 234, Perry has broken the record held by his predecessor, George W. Bush, for the number of executions over which a governor has presided.
Before this issue arrives in your mailbox, Perry should reach 235.
BORDERLINE POVERTY—If there was a pattern in Perry’s 2001 vetoes, it pertained to government programs to alleviate poverty. Perhaps the most egregious example: killing a bill that provided a living wage for the poorest residents of Texas.
The Lower Rio Grande Valley perennially ranks as one of the poorest regions in the United States, with Cameron and Rio Grande counties usually identified as the poorest two counties in the country.
By 2000, Valley Interfaith, a congregation-based advocacy group, had succeeded in pressuring area school districts to ensure that contractors working for them paid a “living wage” — at the time approximately $8 an hour.
Then Texas Attorney General John Cornyn, now a U.S. senator, ruled that school districts didn’t have the authority to exceed the regional prevailing wage unless the Legislature authorized them to do so.
So Valley Interfaith went to the Legislature and managed to get a living-wage bill passed, requiring contractors working on public school projects to pay their workers a wage “that would amount annually to the federal poverty level of a family of four.” State law at the time required “prevailing wage” — which in the counties along the Texas-Mexico border is always substantially below a poverty wage.
Perry must have missed Cornyn’s memo. The governor’s one-sentence veto message claimed that school districts already had the authority to pay contractors at rates established by locally elected boards. They did not.
“To this day I do not understand why he did that,” said Carlos Truan, the Democratic senator from Corpus Christi who sponsored the bill. “It was incomprehensible, and in my opinion, lacked sympathy for people working for poverty wages in the Rio Grande Valley. This is one of the poorest regions in the country, and in some of those counties the school district is the largest employer.”
Jerry Frank, a Catholic Priest who had worked on Valley Interfaith’s living-wage campaign, was also blindsided by the veto.
“We had done our work in the House and Senate,” Frank told me. “It never occurred to us that we had to lobby the governor.”
Judy Donovan, a nun who worked on the campaign, was more blunt. “On top of callousness, he’s added stupidity, to dismiss such an important border bill without researching it thoroughly,” Donovan told a reporter after the vetoes.
CLASS ACT—Bills that included the word “Medicaid” were also targeted. Perry vetoed five bills that would have made Medicaid more accessible to the poor and working poor receiving health care through the federal-state program. Three of the bills were sponsored by Austin Democrat Elliott Naishtat (in whose House district Perry resides).
The big-ticket Medicaid bill Perry vetoed was sponsored by Laredo Senator Judith Zaffirini. It would have saved the state $416.8 million over five years, and drawn down additional federal dollars from Washington for services for legal immigrants who had been in the state for more than five years; demonstration projects on HIV and mental health services; and increased screening and contraceptive services for women. (That is, poor women.)
Naishtat won the 2001 veto lottery, with five bills targeted by the governor. Added to his three vetoed Medicaid bills was a bill that pertained to Temporary Assistance for Needy Families and another that provided funding for vocational training as a transition from welfare to work.
Five vetoes in 2001. The price of sponsoring class-biased legislation.
“I was caught by surprise,” Naishtat said. “And my staff was caught by surprise. We had no idea these bills were going to be targeted for vetoes. And all of the bills that were vetoed were bills that were passed to help the poor and underprivileged.”
Naishtat said that Perry broke with a tradition established by previous governors, regarding vetoes.
“Historically, there are conversations between the governor’s staff and my staff and we know a bill is going to be vetoed,” Naishtat said.
Not this time.