Dewhurst’s Lifting of 2/3 Rule Has No Immediate Repercussions
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Where’s the love?
Yesterday may have been Valentine’s Day, but there was little love shown on the floor of the Texas Senate during the debate over the resolution allowing state spending to exceed the constitutional ceiling by some $14.1 billion in order to “buy down” local school property taxes with revenue from the new business tax. Feeling jilted were Senate Democrats; they were two-timed, again, by the Lite Guv, who had pledged his undying love for the 2/3 rule earlier this session but, as he had done in congressional redistricting in 2003, found a 16-vote solution when getting 21 (for a proposed constitutional amendment) proved too difficult. Switching tactics overnight, Dewhurst got behind a concurrent resolution by Finance committee chairman Steve Ogden. This rare show of speed and decisiveness by Dewhurst touched off an hourlong parliamentary debate that sounded a lot like the House on its most contentious days, with Democrats trying to pin down Dewhurst and Ogden with a series of parliamentary inquiries. Warning: This could get a little arcane.
Here is the relevant constitutional provision (Article 8, Section 22):
(a) In no biennium shall the rate of growth of appropriations from state tax revenues not dedicated by this constitution exceed the estimated rate of growth of the state’s economy. The legislature shall provide by general law procedures to implement this subsection.
(b) If the legislature by adoption of a resolution approved by a record vote of a majority of the members of each house finds that an emergency exists and identifies the nature of the emergency, the legislature may provide for appropriations in excess of the amount authorized by Subsection (a) of this section. The excess authorized under this subsection may not exceed the amount specified in the resolution.
[Section (c) omitted]
Van de Putte started off by pointing out that Senate rules require that a resolution setting or defining legislative or state policy be referred to a standing committee and can’t be heard immediately except by a 2/3 vote. Ogden’s resolution was not referred to a standing committee. So, Van de Putte inquired, what vote is required?
–Sixteen votes, Dewhurst answered, because the resolution does not set or define legislative or state policy. This interpretation eviscerated the 2/3 rule.
–Van de Putte’s next inquiry was based on the constitutional language in subsection (a) above: The Legislature “shall provide[,] by general law[,] procedures to implement this subsection.” It was not necessary to point out the obvious: that a concurrent resolution is not general law. Dewhurst wriggled out of the box with some timely help from Ogden, ruling that the Legislature had already implemented the subsection, years ago, by requiring the Legislative Budget Board to set the spending cap before each session.
Van de Putte gave it a good try, but I think Dewhurst’s interpretation was right. Article 8, Section 22 clearly contemplates in subsection (b) that a resolution can be used to authorize exceeding the cap. The effect is primarily procedural. It does not change law; it is one part of a process that has been established, constitutionally and by law, to lift the spending cap.
The Democrats weren’t through, though. Whitmire wondered why we are lifting the cap solely for property tax cuts when the state has so many other needs. “Have you done the same for public education, higher education, transportation?” Then he brought up health care: “If we present other resolutions to go outside the spending cap, would you support them?”
Ogden’s answer was that the resolution not only provides property tax cuts but also makes possible “the very best budget we’ve ever passed.”
Ellis was peeved that the 2/3 rule had been nullified again and also objected that the resolution had been presented without giving senators time to prepare for floor debate. Whitmire likewise lamented the failure to let the 2/3 rule do its work of bringing about a consensus and added that there was no pressing need to act this early in the session. Shapleigh spoke of the unmet needs of the state. Still, for all the D’s objections, the temperature was far below the level of partisanship that has become a permanent presence in the House. No criticism was voiced of Dewhurst or Ogden. The latter described the resolution as “an innocent hostage,” presumably to Democratic hopes of using the 2/3 rule to get some leverage in later budget negotiations. Speaking of Democratic desires to use money for broadening access to health insurance rather than property tax cuts, Ogden said, “If we don’t pass this resolution, you can do neither.” The Democrats’ predicament was that they knew Ogden was right. If the ceiling is not lifted, there will have to be a bloodbath of draconian cuts. He described the resolution as “an innocent hostage.”
The only Republican to express concern with the resolution was Patrick. Already an announced “no” vote, he described the tax cut, correctly, as a tax shift: “In order to give some taxpayers reductions, aren’t we increasing the tax on others?” And, he said, while others were warning of draconian cuts, he was worried about “draconian increases” in the cost of college, in rising appraisals, and in the tax burden on businesses.
In the end, Dewhurst seemed to have gotten away with his end run around the two-thirds rule. The Ds couldn’t mount a fight that, if they were successful in gumming up the works, would result in closing the schools for failure to comply with the Supreme Court’s ruling. My colleague, Patricia Kilday Hart (who contributed to this report), ran into Royce West at the Capitol this morning and he wasn’t harboring any grudges about Dewhurst’s maneuver: “In this game,” he said, “you’ve got to figure out how to get where you want to go.”