During a normal year at the Texas Legislature, the capitol would be crawling with people. Angela Hale would be one of them. She’s a senior adviser at Equality Texas, an LGBTQ advocacy group.
“I’m there all the time, you know, 24/7 during a session,” she said. “I’m from Dallas, so I never even go home to see my family during a legislative session, because I feel like I need to be there all the time watching everything that happens and making sure that nothing goes wrong or bad.”
But whether that will be possible this session remains to be seen. Even though 87th Regular Session of the Texas Legislature starts in the less than a month, there are still lots of questions about how lawmakers will operate during a pandemic.
State Rep. Briscoe Cain, a Republican from Harris County, wrote a letter to Attorney General Ken Paxton asking whether the capitol must be open to the public during the session, and whether any official has the power to close it.
Lawmakers will also have to establish a set of rules for public engagement that balance safety with transparency. Advocates like Hale have concerns about how that’s going to look.
“There are so many important public policy issues that everyday Texans care about. We need to have a voice at the capitol and we need to be able to communicate as much as we can and be there as much as we can to be involved in these policy discussions as legislators are debating the future of people’s lives,” she said.
Last week, over 70 advocacy groups sent a letter to the legislature asking for adequate transparency and public participation in a legislative process that’s inevitably going to be hobbled by the pandemic.
That’s partially ensured by state law. The Texas Constitution says that the legislature must remain “open” to the public. But according to Charles Rocky Rhodes, a law professor at the South Texas College of Law – Houston, lawmakers have a lot of discretion on what “open” means.
“And so as a result, it’s going to be mostly up to the legislature to decide how do we interpret the word requiring our process be open when we’re in the middle of a pandemic,” Rhodes said.
But most forms of engagement that the public is used to – such as testifying at committee hearings – aren’t required by the Texas Constitution. So if people don’t get the chance to formally weigh in on a bill – whether that’s because of restricted access to the capitol, a failed Zoom call, for example – it wouldn’t keep the bill from becoming a law. Nor, according to Rhodes, would most any other procedural irregularity induced by the coronavirus.
“There’s no chance that a law from this legislature is going to get invalidated after the fact due to a claim that the proceedings on that law were not open enough,” Rhodes said.
If in-person testimony is restricted come January, then committee hearings could be held through Zoom or a similar platform. That would be better than nothing, advocates say, but not an exact substitute for being face to face.
“Testifying virtually is a different experience than testifying in person, said James Quintero, policy director for the Texas Public Policy Foundation. He recently testified at a virtual state committee meeting.
“When you testify in-person before a group of lawmakers, there’s nonverbal communication that gets exchanged in an in-person setting that is absent from online testimony,” Quintero said.
Advocates agree that a lack of in-person access means that people will need to be more engaged this session than they otherwise would be. Without the opportunity to testify in person or drop in on a lawmaker at the capitol, sending emails and snail mail, attending town halls over zoom, and calling offices will become even more important.