Like Burka, I’ve been a fan of the Texas Senate’s two thirds rule, and I was sorry to see it go yesterday. I’m not in total despair, however, because: 1) I don’t think the change itself, from 2/3rds to 3/5ths, is going to be that consequential, 2) it’s not even clear who stands to lose from the change.
Consider: Both Republicans and Democrats have described the change as major. But both Republicans and Democrats have made the seemingly contradictory argument that moving from 2/3rds to 3/5ths won’t make much difference. Kevin Eltife, the Republican from Tyler, who authored the resolution in question, was among several simultaneously maintaining both positions. “We will still have a super-majority requirement in the Texas Senate,” he said, while explaining the changes he was proposing. Later, during the floor debate, he told a number of Democratic senators that in his opinion, the 3/5ths requirement was still sufficient to encourage discussion and compromise, and to serve as a hedge against genuinely bad bills. However, Eltife also made a case for the change, arguing that the 2/3rds threshold was simply too high, and had made the Lege more prone to postponing contentious discussions until the special sessions (where the two-thirds rule typically wouldn’t apply anyway). And when directly questioned, during the floor debate, Eltife described the change as significant. “Is it fair to say that this would be a big change?” asked Rodney Ellis. “Yes,” said Eltife. John Whitmire, a Democrat and the dean of the Senate, was similarly ambivalent. During the floor debate, he said that the 2/3rds debate had proven useful during his 32 years in the Senate, and he exhorted his colleagues not to abandon it. At the same time, he warned that we shouldn’t overinterpret the resolution’s eventual passage. “It’s probably not as bad as I’m standing here making it out to be,” he said. “But it’s also not nearly as good as some of my other colleagues think changing it is gonna be.”
That was, I thought, a fair summary. As Eltife said, under the new rules the Senate will still have ways to enforce deliberation. The 3/5ths rule is one. The decision to whittle the number of Senate committees from 18 to 14 may well turn out to be another: fewer committees available to consider legislation means more bills are going to end up on the cutting room floor.
The implications of the change are similarly unclear, but I would disagree with the reaction, from both the left and the right, that yesterday’s vote was a coup for conservatives and a blow to Democrats. The reasoning is clear enough. Under the 2/3rds rule, 11 senators could block a bill from coming to the floor. Under the 3/5ths rule, the magic number would be 13. The Senate has 11 Democrats and 20 Republicans. As a result of the change, in other words, Democrats will no longer be able to block bills on their own.
Many observers argued that this was clearly the Republicans’ goal. On social media, left-leaning groups adopted the hashtag “#lockout”—and a number of conservatives crowed about their victory. Several Democratic senators commented on the partisan makeup too, and Jose Rodriguez, from El Paso, argued that in addition to marginalizing Democrats, the change would effectively marginalize African-American and Hispanic Texans, roughly 60% of whom are represented by the Senate’s 11 Democrats. Eltife rejected that line of argument. “We have to be honest about it,” he said. “A lot of bills that hit the floor of the Senate, we don’t vote on party lines.” More to the point, he continued, the two-thirds rule has historically been about protecting the minority opposition to the issue at hand (such as rural legislators), not the minority party. Leticia Van de Putte, from San Antonio, agreed with him: the most brutal and emotional fights she had seen in the Senate, she said, hadn’t been about partisan issues but about water.
There have, of course, been some pretty ferocious partisan fights in the Texas Senate in recent memory; the 2011 battle over voter ID comes to mind. But it is true that not all the Senate’s fights are partisan, or strictly partisan. When it came time to vote, the Senate adopted the 3/5ths rule by a 20-10 vote, which was a vaguely ironic outcome because 2/3rds of the senators voted in favor of change and because one Democrat (Eddie Lucio) voted for it and one Republican (Craig Estes) declined to vote. And despite the change, there are reasons to expect some bipartisanship from the Texas Senate. There are 20 Republicans and 11 Democrats, but depending on the issue, we may see the Senate look like a chamber of 21 centrists against 10 tea Partiers. Beyond that, if the new rules do make it easier for Republican senators to pass bills, it doesn’t mean that changing the rules was good for Texas Republicans in general. There is a reason that many Republicans have historically supported the 2/3rds rule, and that they didn’t switch to a simple-majority system yesterday; the reason, bluntly, is that Republicans sometimes file some really dumb bills.
Ultimately, then, I don’t think the move to a 3/5ths rule was that big of a deal. For the same reason, I was sad to see the two-thirds rule go. There was no pressing reason for the change. There was only a petty, political reason. Dan Patrick, the new lieutenant governor, has been a critic of the two-thirds rule since his first term in the Senate, in 2007, and during last year’s primary for the Republican nomination he championed this as a crucial difference between himself and the incumbent, David Dewhurst. And over the course of a long and contentious campaign Patrick inevitably committed himself to pursuing this change, even though the difference was never important, merely existent and therefore available for campaign purposes. The rules changes adopted yesterday were the direct result of the narcissism of small differences I wrote about a few weeks ago. In the grand scheme, they may not matter. But maybe this is a question worth asking: in a 140-day session that affects 27 million Texans, how many days should our state leaders allocate to red meat and ephemera?