First, Dew No Harm

Will the lieutenant governor mess with tradition to satisfy the demands of party hacks? Or will he save the Senate—and his own reputation?

February 2006By Comments

AT SOME POINT, YOU’D THINK the state’s Republican leadership would be ashamed of the mess it’s made of things. The laundry list includes the school finance debacle; Tom DeLay’s fund-raising activities in the 2002 election; the midcycle congressional redistricting, another DeLay-inspired adventure, which now faces review by the U.S. Supreme Court amid revelations that the fix was in when the Department of Justice gave the plan its blessing; the continual sniping and snubbing by and among the governor, the lieutenant governor, and the Speaker; and the current campaign by the party hierarchy to defeat legislators who have dared to suggest, by their votes, that the leadership is on the wrong track. The common flaw uniting these embarrassments is a desire for power that exceeds a desire for policy—and a complete lack of shame. There is no sense of restraint. There is no impulse to govern. There is only the desire for more power.

The latest indignity is an attempt by Republican activists, including party higher-ups, to force Lieutenant Governor David Dewhurst and the Senate’s GOP majority to change the Senate rules so that the party’s agenda can win approval without resistance. This fight, which is taking place out of public view, is yet another indication that the real battle in Texas politics at the moment is not between Republicans and Democrats but Republicans and Republicans. And the real issue is not what is the best public policy for the state but whether the activists can establish litmus-test positions that they can impose on elected officials.

In December the State Republican Executive Committee (SREC) unanimously adopted a resolution calling for GOP senators to abandon the process the Senate has used to pass legislation for at least half a century. Around the Capitol, it is referred to as the two-thirds rule, although no such rule formally exists. The “rule” is really an agreement among senators and the lieutenant governor that the Senate will ignore its calendar, called the “regular order of business,” in which bills are supposed to be debated chronologically, in the order in which they receive preliminary approval by committees. Instead, the lieutenant governor initiates action on a bill by permitting its sponsoring senator to move to suspend the regular order of business so that his bill can be considered. A motion to suspend the rules requires a two-thirds majority, hence the two-thirds rule. To make sure the process works as intended, the first bill to come out of com mittee operates as a “blocker bill.” As long as it remains at the top of the list of bills, unpassed, the Senate is blocked from following the regular order of business—and the sponsoring senator has no intention of trying to pass it. Typically, it deals with some mundane subject, such as the flower beds on the Capitol grounds, and exists only to ensure that the regular order of business has to be suspended.

This sounds like the dreariest and most arcane inside politics, and the stakes are not immediately apparent to the average person, but they are considerable. Texas is one of the few states where the lieutenant governor is a powerful figure in the legislative process rather than just a figurehead who presides over the Senate, and the two-thirds rule, which allows him to control the flow of legislation, is an important source of his power. The presence of a strong and independent lieutenant governor has served Texas well (especially when the other statewide leaders are as lackluster as the current bunch), and so has the practice of requiring a supermajority—21 of 31 senators—to debate a bill in the Senate. It changes legislation for the better, because it forces the body to seek a consensus and acts as a check on the passions of the majority. It changes senators for the better, because they are constantly in need of one another’s support. The essential skill required of a senator is to be able to persuade 20 of his colleagues to support his legislation, which in turn forces him to address their concerns. A senator’s pledge means everything, and trust and collegiality and reciprocity are essential. As Kel Seliger, a freshman Republican from Amarillo, put it to me, the two-thirds rule “imposes adult behavior on people who might be otherwise inclined.”

The rule enhances the status of every senator by enabling eleven of them to block a bill from coming to the floor. To be one of eleven is real power, and it can be exercised without ever casting a vote. A lieutenant governor typically will not allow a senator to suspend the rules without the assurance that he has the necessary 21 votes. And so the club protects its own. The rule enhances the status of the lieutenant governor as well; he controls the legislative agenda, because no senator can make a motion to suspend the regular order of business unless the presiding officer first calls on him to do so. Another benefit to the lieutenant governor is that the two-thirds hurdle often creates an impasse, giving him the opportunity to step in and negotiate a compromise, as Dewhurst did last spring on a bill establishing new rules for asbestos litigation.

But the rule and the legislative tradition it created came into being in an era when Texas was a one-party Democratic state. Today, the Senate is divided along partisan lines, with 19 Republicans and 12 Democrats. One of the Democrats, Kenneth Armbrister, of Victoria, is retiring and will almost certainly be replaced by a Republican, raising the GOP majority to 20—11 and leaving the Democrats with the bare minimum necessary to block legislation. This explains why the SREC wants GOP senators to bring an end to the two-thirds rule. With the Legislature facing a June 1 deadline to fix the school finance system that the Texas Supreme Court has found unconstitutional, the prospect that the Democrats could block consideration of a school finance bill, throwing the state into chaos, has to be unsettling.

The SREC isn’t the only voice against the two-thirds rule. The first person to oppose the rule openly was Dan Patrick, a Houston radio talk-show host turned candidate for a vacant Senate seat, who has made dumping the rule a campaign issue. Governor Rick Perry would like to see the rule’s demise, because it was employed to kill some of his pet legislation last spring. (It would surprise no one if Perry turned out to be working in concert with the state party to terminate the rule.) Republican senator Troy Fraser, of Horseshoe Bay, a Perry ally, is a longtime critic of the rule. “I’m a former House member, and we operated in a majority atmosphere,” he says. “I believe the public is very well served by healthy debate.” But a Republican colleague, Robert Duncan, of Lubbock, argues that the rule serves as a check and balance on the runaway emotions of the day. “How can conservatives who believe in less government oppose the rule?” he asks. “It makes it harder to pass bad bills.”

Clearly, the person with the most at stake is Dewhurst. A former activist himself—before running for land commissioner, in 1998, he was a major Republican donor and fund-raiser—he wants to run for governor in 2010. But his relationship with the Republican establishment is tenuous at best. He has evolved into a policy wonk with a genuine desire to solve the state’s problems and genuine convictions about how to do it, a course that has won him the admiration, if not necessarily the agreement, of senators in both parties. It has not, however, won him the admiration of the activists, whose idea of good policy is to pass the Republican agenda, period. They see him as too willing to negotiate with the opposition, too deeply immersed in the details of policy at the expense of ideology, and too unresponsive to party leaders. The same things could have been said about the formidable Bob Bullock, who served as lieutenant governor from 1991 to 1998. But Bullock brought to the office a long career of achievement, while Dewhurst—partly because of the much-remarked-about enmity between himself and Perry and Tom Craddick, partly because of his sometimes distant personality, and partly because he hasn’t spent enough time trying to build personal relationships with party pooh-bahs—remains a work in progress.

When Dewhurst was elected, in 2002, he appeared to have the inside track to succeed Perry. But it now appears that he could face a star-studded field of challengers in 2010, including Donnie Evans, the Midland oilman who served as Secretary of Commerce in George W. Bush’s first term as president; Tony Garza, the U.S. ambassador to Mexico, who recently married into one of that country’s biggest fortunes; and U.S. senator Kay Bailey Hutchison, if she can ever find the nerve to run. None of his potential challengers have to deal with the day-to-day pressure from the activists over issues like the two-thirds rule. Dewhurst has mostly chosen to uphold Senate tradition. Can he continue to do so?

Or will he cave, as he did during the redistricting flap of 2003, when, under intense pressure from DeLay and, it was whispered, the White House, he refused to observe the two-thirds rule, allowing the bill that redrew congressional district lines to be considered in the regular order of business and passed by a simple majority vote? Dewhurst maintained at the time that he had precedent for his decision and that, in any event, he had no choice as a Republican leader. Perhaps it was too much to expect for him, after only a few months in office, to insist that the Senate not abandon its way of doing business and that redistricting wait until 2005. But in failing to do so, he set his own precedent. It was entirely predictable that Republican activists, having seen Dewhurst crater once on the two-thirds rule, would continue to demand its demise whenever it got in the way of their agenda. So what will he do now that the activists have drawn the line in the dirt? Senators expect that Dewhurst will honor the rule in the coming special session, but when I requested an interview with him over the holidays, he was on vacation, and his office chose not to forward questions I e-mailed to them.

The two-thirds rule may seem like an anachronism in these days of intense partisan politics. But if none of its obvious advantages—civility, consensus, fairness—cut any sway with Republicans, they should consider this: If they continue to govern without shame, they will only hasten the day when they are out of power. Then they will dearly regret that they did away with the minority’s ability to temper the passions of the majority.

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