The future of the 2/3 rule
Sat January 17, 2009 12:34 pm

Ever since Lieutenant Governor Dewhurst wired around the 2/3 rule to pass congressional redistricting in 2003, I have believed that the rule cannot survive in the partisan era. It may still have some life in issues that don’t have partisan overtones, but the maneuvering on the Voter I.D. bill indicates that the majority will not let Senate tradition stand in its way when the issue is one that inflames partisan passions. If the minority bands together to try to thwart passage of a measure that is important to the majority, the majority will simply find a way to change the rules. That is what happened in the Senate last week. And it will happen again and again.

Tommy Williams characterized (in a conversation with Patricia Kilday Hart and me) the Democrats’ opposition to Voter I.D. as a “tyranny of the minority.” Read Tocqueville, read Madison’s The Federalist No. 10, and they make the case that the greatest danger to democracy is tyranny of the majority. Not that I think that senators are going to rush to the Legislative Reference Library to read the works cited, but the concept of a “tyranny” that is embedded in Senate practice and tradition does not compute.

The two-thirds rule is the most important procedural device in the legislative process in Texas. It operates as a check upon the majoritarian tendencies of the lower house. If allowed to operate as it has in the past, it assures that before a bill can become law, it must have consensus support. If that support is lacking, it requires members to seek compromises. (The filibuster rule in the U.S. Senate has the same effect, and Republicans are about to find out what happens when the minority lacks the votes to break a filibuster.) Take away the two-thirds requirement and the Senate is just the House with fewer desks.

Now that the precedent has been set that the majority can write the Senate rules to give selected bills a “get out of jail free” card, what is to stop the majority, two years from now, from engaging in logrolling so that each member can get his pet legislation on the list of bills that will be set according to special orders, rather than going through the normal process?

I don’t like the Voter I.D. bill – Republicans nationwide have put too much effort into passing these laws for me not to believe that it is a vote-suppression technique – but I would feel the same way about the 2/3 rule if we were talking about the blocker bill to tend to the Capitol landscaping. You can’t have an effective democracy unless you protect the rights of the minority. The majority ought to have to clear hurdles before it gets its way. The two-thirds rule is a hurdle that has defined the Texas Senate for at least half a century. In the Republican caucus, the vote to keep it was only 12 for and 7 against. Switch three votes and it’s gone.

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