Divine Right of Speakers, Part III — The Politics
In Part II, I discussed the legal aspects of Craddick’s position, as stated in his brief to Attorney General Abbott, that he has the power to deny recognition to a member seeking to make a privileged motion and that he is an officer of the state and therefore can be removed as speaker only by the means established in the Texas Constitution, by expulsion or impeachment, both of which require a two-thirds vote. But the political aspects of determining the validity of Craddick’s position may be as determinative of the outcome as the legal issues.
The first question is whether General Abbott will choose to answer the issues raised by requestors Jim Keffer and Byron Cook. It is possible that he will choose not to do so. Abbott could say that Article II, Section 1 of the Constitution precludes him from responding:
DIVISION OF POWERS; THREE SEPARATE DEPARTMENTS; EXERCISE OF POWER PROPERLY ATTACHED TO OTHER DEPARTMENTS. The powers of the Government of the State of Texas shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy, to wit: those which are Legislative to one; those which are Executive to another; and those which are judicial to another; and no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly provided.
Article III, Section 11, reads, in part, “Each House may determine the rules of its own proceedings….” The issue, therefore, is whether the attorney general may issue an opinion on an interpretation of the rules of the House. I think there is a good separation of powers argument that he cannot do so, and, indeed, Craddick argues in his brief that he cannot do so: “[R]equestors effectively ask the Attorney General to act as an appellate body, second-guessing decisions made by Speaker Craddick while presiding over the House during a legislative session that has already concluded. Requestors’ appeal is prohibited by the Texas Constitution and House rules. The request is thus improper, and the Attorney General should refrain from opining on the political questions it raises out of respect for constitutional separation of powers.” However, Abbott appears to be moving in the direction of responding to the request, as he has invited comment on the issues raised by the requestors, first to a select group of people, and then to anyone wishing to submit a response.
I have serious doubts about whether the requestors or Craddick are acting in their own best interests. In asking for Abbott to rule on Craddick’s powers, Keffer and Cook risk violating an old legal maxim: Never ask a question unless you already know the answer. Nobody knows whether the speaker’s declaration of absolute power is constitutional. What happens to the opposition to Craddick if Abbott rules in his favor? I think it crumbles. In particular, I think that the media outrage will dissipate, since it is hard to dispute a well reasoned analysis by the state’s lawyer. Arguably, the opposition is better off letting the members, who have the most to lose from the Craddick ruling, decide the issue rather than the AG. In opposing Abbott’s intervention, Craddick is taking a risk too–that he is turning a winning position into a losing one. If Abbott were to decide to respond to the requestors, I find it difficult to believe that he would pour out the Republican speaker, who has broad support among the big donors and party honchos whose approval Abbott needs in order to move up the ladder to lieutenant governor. To oppose Craddick would invite retribution in the event, not unlikely, that Craddick wins reelection as speaker.
Abbott is not only a shrewd lawyer; he is also a shrewd politician. He knows that, as things currently stand, Craddick is poison around the state. The speaker may turn out to be to the ’08 legislative elections what Tom DeLay was to the ’06 congressional elections: the poster child for why voters should elect Democrats. By ruling in favor of Craddick, Abbott can give Craddick’s argument legitimacy and help Republican legislative candidates in contested races, every one of whom will be asked whether they support or oppose Craddick’s claim of absolute power. But Abbott must also consider whether, in ruling for Craddick, he lets himself in for the same criticism that Craddick has received. The public may not understand the arcane questions of law that Abbott must decide, but they understand that Craddick is claiming absolute power. This is why, if I were advising Abbott, I would urge him to take refuge in the doctrine of separation of powers and decline to respond to the Keffer-Cook request.
Suppose Abbott does rule against Craddick? What happens then? Does Craddick abandon his claim to absolute power? Not a chance. If there is a confrontation of the speaker’s power during the 81st Legislature–and, if Craddick is speaker, you know there will be–he will likely take the position that an AG’s opinion is advisory only and he is not bound to follow it. Here is what the attorney general’s Web page says about the force of his official opinions:
Attorney General Opinions clarify the meaning of existing laws. They do not address matters of fact, and they are neither legislative nor judicial in nature. That is to say, they cannot create new provisions in the law or correct unintended, undesirable effects of the law. Opinions interpret legal issues that are ambiguous, obscure, or otherwise unclear. Attorney General Opinions do not reflect the AG’s opinion in the ordinary sense of expressing his personal views. Nor does he in any way “rule” on what the law should say.
Unless or until an opinion is modified or overruled by statute, judicial decision, or subsequent Attorney General Opinion, an Attorney General Opinion is presumed to correctly state the law. Accordingly, although an Attorney General Opinion is advisory, it carries the weight and force of law unless or until it is modified or overruled. Ultimate determination of a law’s applicability, meaning or constitutionality is left to the courts.
And, in this case, ultimate determination is also left to the members of the House. No matter how Abbott rules, Craddick and all other candidates for speaker will have to pre-commit to either supporting or not supporting a House rule change to ban the concept of “Absolute Authority.”