Last week, House parliamentarian Terry Keel gave a power point presentation to the Political Advocacy Association of Texas — the trade association for the lobby — on the rules issues that are likely to be the subject of debate in January 2009. Below are the elements of his presentation and my comments in italics.

What You Should Expect When the House Convenes January 13, 2009

At the beginning of each session, the members of the House adopt their own rules and shoulder the responsibility for deciding any changes. The public policy considerations, legal arguments and practical consequences will be debated.

(Tex. Const. Art. 3, Sec. 11: “Each House may determine the rules of its own proceedings….”).

Should there be changes to the House rules regarding the speaker’s authority on the issue of recognition?

Rule 1 (Duties and Rights of the Speaker), Section 9 (Questions of Order)
The Speaker shall decide on all question of order; however, such decisions are subject to an appeal of the house made by any 10 members….Responses to parliamentary inquiries and decision of recognition made by the chair may not be appealed.

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Rule 5 (Floor Procedure). Section 24 (Recognition)
There shall be no appeal from the Speaker’s recognition, but the Speaker shall be governed by rules and usage in priority of entertaining motions from the floor. When a member seeks recognition, the Speaker may ask…, “For what purpose does the member seek recognition?” and may then decide if recognition is to be granted.

These rules are unique to the Texas House of Representatives and there exists no parallel statement of this unfettered recognition authority for the presiding officer of the Texas Senate.

Comment: In general, I have no problem with this rule, which is the source of argument that the speaker has absolute power to deny recognition. If a speaker does not have the power to deny recognition, the House can slip into chaos. The flaw in the argument for absolute power is that the language of the rule is NOT absolute, because of the statement that “the Speaker shall be governed by rules and usage….” The question then is whether THIS speaker will preside in a manner consistent with rules and usage — in particular, whether privileged motions will eventually be recognized. In the past, as everyone who has watched the House knows, speaker have often refused to grant recognition by stating, “not at this time.” But “not at this time” should not mean “never” regarding privileged motions. At some point, repeated requests for a privileged motion should be granted.

Arguments for changing the current rules on recognition:
“Neither the House rules, House precedent, the Texas Constitution, or parliamentary law were ever intended to create a divine Speakership that undermines the power of the members to remove their presiding officer…. The delegation of…power [to the Speaker] does not…bestow absolute authority to determine whether a member will be recognized on any matter, including a question of privilege.”
–Rep. Jim Pitts 8-3-07 brief to Attorney General.

Arguments for keeping the system in place:
“The rule is essential and makes perfect sense. If it didn’t exist, any member could raise a privileged motion and successfully circumvent whatever business the House is conducting at that time…such motions will be used to grind our proceedings to a halt whenever it suits the political agenda of some members to do so….In my twenty years…every Speaker has judiciously used the power of recognition.”
–Chairman Warren Chisum, 7-20 letter to Attorney General.

Comment: The circumstance Rep. Chisum envisions is covered by the provision saying that the speaker shall be governed by rules and usages. A speaker can refuse to grant recognition if the purpose of the motion is transparently to bring proceedings to a halt by mounting a tag-team filibuster. This debate is not about trying to bring House business to a halt. It is about whether the Speaker can protect himself from an attempt to vacate the chair.

Practical questions members will have to ask:

If a speaker’s discretion as to recognition is curtailed, or limited to non-privileged matters, how would filibusters be handled in the Texas House?

How would the House define privileged matters? List them? Rely on the definition? [“Questions of privilege shall be: those affecting the rights of the house collectively…and those affecting the rights…of members individually.”][Rule 5, Sec. 35].

Comment: The rules are replete with time limits for debate and for various motions. Surely time limits could be applied to privileged motions without doing damage to the process.

Should there be changes proposed to have mid-session speaker elections or procedures for the body to remove a speaker?

Tex Const. Art. 3, Sec. 9(b)
The House of Representatives shall, when it first assembles, organize temporarily, and thereupon proceed to the election of a Speaker from its own members.

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Tex. Govt. Code 302.011
When the House of Representatives first convenes in regular session and a quorum is present and has been qualified, the house shall elect a Speaker unless a majority of the members present decides to defer the election.

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House Rule 1, Section 16
During a regular session of the legislature, a member may not solicit written pledges from other members for their support of or promise to vote for any person for the office of Speaker

Comment: The requirement that the House shall elect a Speaker when it first assembles does not establish than a subsequent election cannot take place at another time. It is just as reasonable to conclude that the failure to establish the length of the Speaker’s term indicates that such an election is contemplated. Rule 1, Section 16 doesn’t eliminate speakers races; it merely eliminates written pledges. The rule is silent as to verbal requests for support.

Arguments for enacting a rule to remove a sitting speaker:

“The Speaker’s lawyers raise a parade of horribles that will occur if members of the house could remove a speaker (e.g. if the speakership could change hands with every shifting political wind)….I believe that the choice would have been an easy one for our forefathers who would have preferred to listen and participate in the loud cacophony of the 150.”
Rep. Brian McCall, 8-3-07 letter to Attorney General.

Arguments for keeping the present system in place:“Their position–that the Speaker should be subject to recall ‘at the pleasure of the members’–would be bad public policy and counter to the best interests of the citizens of this state…this is not a case where a Speaker is alleged to have committed some sort of civil, moral, or criminal wrongdoing. Rather, it is a political fight instigated by members admitting to aspirations for the speakership and prioritizing politics over real work.”
Rep. Jodie Laubenberg, 8-3-07 letter to Attorney General.

Comment: It is no trivial matter to oust a sitting Speaker. In most circumstances, the membership would not resort to such a step, least of all for what Rep. Laubenberg calls a “political fight.” But members ought to have the ability to remove a speaker for abuse of power, not just for the kinds of infractions cited by Rep. Laubenberg.

Practical questions members will have to ask:

Would the ability to change speakers be used to disrupt proceedings, such as where members proposed the change knowing that they won’t succeed on the issue, but may kill legislation they do not favor?

Should there be threshold requirements to avoid frivolous motions to vacate, such as a two-thirds minimum to raise the question?

Should there be reasons required other than political, such as the requirement that there be allegations of criminal, civil or ethical wrongdoing?

Comment: Either the majority should have the power to remove the Speaker or it shouldn’t. Raising the bar only serves to protect the Speaker. As for the danger that legislation might be killed, well, using the rules to kill bills happens all the time. A motion to vacate the chair is like any other motion–part of the process that is there to be used.

Parliamentary inquiries: Should parliamentary inquiries be able to be used to interrupt proceedings with matters not before the house or used for purposes that are more properly addressed through matters of personal privilege or addressed to the appropriate committee?

Congressional precedents — “Decisions of the Speaker” cited following Rule I, Sec. 9):

“It is not the duty of the chair to decide hypothetical points of order to or anticipate questions which may be suggested in advance of regular order.”

“[The Speaker] is not required to decide a question not directly presented by the proceedings.”

“The Speaker may require that a question of order be presented in writing.”

Comment: This discussion concerns me more than anything else in Keel’s presentation. If Craddick and Keel are bent on cracking down on parliamentary inquiries, they really are determined to establish an imperial speakership. Parliamentary inquiries are the only way to hold the Speaker accountable for his rulings and the way in which he runs the House. They are the only way a member may address the Speaker and receive an answer in public. I would much rather bargain away the right of members to move to vacate the chair–after all, it hasn’t happened in more than 130 years–than to restrict the right of members to make parliamentary inquiries, such as by requiring them to be put in writing. This is a dangerous, dangerous idea. I hope they don’t go through with it.

Points of order re: committee reports, bill analysis content, etc.

Question: Have points or order sustained in the most recent session on committee reports and bill analysis content been inconsistent with prior house practice that would have overruled the points raised?

Comment: I think the answer in both cases is yes. In general, I’m for anything that is more like prior House practice than current House practice.