Senator Eliot Shapleigh - El Paso, Texas

AUSTIN – Rep. Dan Branch, a key player in the negotiations on school finance, often found himself pacing the terrazzo floor outside conference committee meetings.

But then Rep. Rob Eissler, R-The Woodlands, would come out, and Mr. Branch, R-Dallas, could go back in.

The shuttle of conferees in and out of the closed door was not done because of space limitations, but as a way to subvert open government rules. If a quorum of the five House conferees were present, then the meeting on one of the most important issues of the special session would automatically be opened to the public.

In both the House and the Senate, negotiations on public school finance and taxes have been done in marathon private meetings by a handful of lawmakers without a public peek at how the final plans might come together, or ultimately, fall apart.

Open-government advocates are "outraged that this is how we think we best do the people's business – behind closed doors having closed the people out," said Suzy Woodford, state director of the watchdog group Common Cause.

The steps taken to keep negotiations private are not illegal, because House and Senate rules supercede state open meetings laws. Other tactics used to limit public information include having all 31 senators meet as a caucus and Senate tax writers' decision not to request a nonpartisan analysis of a major tax-shift bill.

And while such moves are common to every legislative session and most major bills, in this special session, the House and Senate are trying to unknot differences on two major bills dealing with more than $7 billion in taxes and spending. Ten conferees from each chamber are working on each bill, but so far, all of their substantive meetings have been held out of public view.

Some lawmakers who are proponents of open government or who feel frozen out of the process have expressed frustration that so few control the fate of so many in such privacy.

But conferees and state leaders said negotiations go more swiftly, with more honesty and better efficiency when lawmakers can bear down on problems and float ideas without fear of being castigated.

And the final product is presented to both chambers in open debate, where a public vote is taken, they said.
"The decisions are made on the floor," said Mark Miner, press secretary to Lt. Gov. David Dewhurst.

"There are some meetings that take place among members to iron out details, but the legislation itself that has the impact on the people of Texas is debated on the floor," he said.

But by the time the full House or Senate consider any compromise plan hammered out by a conference committee, changes can't be made.

Lawmakers can only vote up or down on the whole plan.

Mr. Branch said that the Capitol is the most open building in Texas, regardless of whether the doors are open or shut.

"This place is fairly transparent. What's said on the first floor is known on the third floor before you even take a breath," he said.

Mr. Branch, a proponent of open government, said legislators have received "hours and hours and hours of public input in the last two years" on school finance and now, with time running out in a session that ends Wednesday, lawmakers must divvy up subjects into areas of expertise and use working groups to "drill down on a handful of issues."

But Sen. Eliot Shapleigh, D-El Paso, said many of those issues are best resolved in sunshine, where people feel more accountable for their actions. He said the information the conferees are trading, the numbers that are guiding their thinking and the pressures being brought are all issues that the public should hear.

"It is my view that public debate is what democracy is all about," he said.

Mr. Shapleigh said he is also disappointed that Senate leaders have chosen not to produce a tax equity note, a nonpartisan report that breaks down by income group who will bear the brunt of new taxes. The report is usually requested on tax bills, but leaders decided not to run those numbers this time.

"If the public knew that 90 percent were about to get a tax hike so that 10 percent would get a tax break, they'd be outraged," Mr. Shapleigh said.

Ms. Woodford pointed out that the bills being hammered out by House and Senate negotiators call for transparency in school districts, with better public accountability for their budget, the cost of administration and other spending decisions.

"These are the people who cry for transparency in the school system, but say we don't want to be held accountable and don't want transparency in our own actions. I find it hypocritical at best," she said.

House Speaker Tom Craddick said those rules were adopted so that representatives could negotiate in earnest and under tight deadlines.

"While the House rules and practices that we follow show that our members are committed to open government, the demands of the session can mean that private conversations between members are inevitable and are an unavoidable part of the legislative process," Mr. Craddick said.

Rep. Charlie Geren, R-Fort Worth, who has been working on the property tax negotiations, said that the public is kept informed through lawmakers' conversations with reporters.
"House members are being very truthful with the press that want to talk to them about what's happening," Mr. Geren said.