The Power Behind the Throne
In his second session as lieutenant governor, Dan Patrick has become the most influential person in Texas politics. Will his attempt to legislate who uses which bathroom slip him up?
One Thursday in late May, a cadre of lobbyists representing some of Texas’s most powerful industries asked Dan Patrick, the state’s lieutenant governor, to join them for a discussion of his agenda for the Legislature’s 140-day session that would begin in January. They gathered in the second-floor ballroom of the Austin Club, a private, six-decade-old institution that sits a few blocks from the Capitol. The club occupies the historic Millett Opera House, which dates to 1878 and was where populist presidential candidate William Jennings Bryan once railed against the gold standard. With the possible exception of the Capitol itself, no other building in Texas has been the site of more deal making. Many club members are former legislators or past advisers to Democratic and Republican governors, and at lunchtime when the Legislature is in session, a parade of lawmakers often marches south on Congress Avenue, turns left at Ninth Street, passes through the club’s grand entrance, and vanishes from public view into elegant rooms where they dine as lobbyists’ guests. The walls are dark-wood paneling, the tables are covered in white linens, and fresh flowers are everywhere. In this cloistered environment, bonhomie, fine food, and wine create bonds of friendship between lobbyists and state officials—the lifeblood of policy making in Texas.
The group that had invited Patrick was the Texas Business Roundtable. It consists of more than two dozen lobby shops representing government contractors, petrochemical companies, hospitals, retailers, and restaurateurs, among others—the kinds of businesses that have traditionally dictated the direction of Texas politics. And in the past, they would have considered a sitting lieutenant governor an ally, or at least an honest broker in resolving conflict. Patrick is a different breed, though. He’s not an establishment Republican but rather a product of the party’s fervent grass roots.
Patrick came to prominence as a right-wing talk-radio host in Houston and parlayed that notoriety into a seat in the Texas Senate. In his first session, in 2007, he was an outsider disdained by many of his colleagues. His first proposal on the floor—to change Senate rules to make it harder for Democrats to block bills, which senators of both parties considered a breach of protocol—was voted down thirty to one. But in the decade since, his brand of politics has become mainstream, and Patrick has gradually accumulated influence. By 2014, when he was elected lieutenant governor, the presiding officer of the Senate, his takeover was complete.
Patrick’s legislative agenda for 2017 feels as if it could have once been programming for his talk show. He has 25 priorities, which appeal largely to social and fiscal conservatives. While some involve broad public policy, such as balancing the state budget and improving Child Protective Services, the majority are wedge issues. They include property tax restrictions on local governments, a First Amendment shield law for ministers who preach politics from the pulpit, and a crackdown on so-called sanctuary cities, where police do not actively enforce federal immigration laws. Patrick is also passionate about passing a voucher plan that would allow parents to spend public money to send their kids to private schools.
At the Austin Club, Patrick laid out the highlights of his agenda, building to his top priority, one that wasn’t likely to go over well with some of the assembled business lobbyists: a bill that would require transgender people to use public restrooms that correspond to their gender at birth, not the gender they identify with. Patrick has said his intent is to keep men out of women’s restrooms, and he has referred to the bill as the “women’s privacy act.” To Patrick’s critics, though, the proposal is rank discrimination against transgender Texans.
It’s the specter of that discrimination—or what people around the country might see as discrimination—that has business leaders spooked, and it’s not a feeling they’re accustomed to, especially on this topic. Restroom access was a nonstarter the last time the Legislature was in session, in 2015; a handful of House bills on the subject never even got committee hearings, and Patrick and the Senate ignored them. But in recent years, religious-right activists began promoting the idea that municipal antidiscrimination ordinances could allow a sexual predator to enter women’s public restrooms merely by declaring that he was a female at heart—though there’s no evidence that has ever occurred. North Carolina famously passed strident restroom restrictions, and business leaders in that state watched the backlash in horror: corporate relocations and expansions were halted, and major college and professional sporting events were moved out of state. The Texas Association of Business has estimated that similar restroom legislation, if passed in Texas, would cost the state economy up to $8.5 billion, including the possible loss of college basketball’s 2018 Final Four, in San Antonio.
The association has used those estimates to justify its strong opposition to a restroom bill, and various power brokers, including Dallas Cowboys owner Jerry Jones, have tried to persuade Patrick to drop the notion. Such behind-the-scenes pressure from the business lobby has often proved decisive at the Capitol: the hidden government of lobbyists effectively murdered tax reform under Governor George W. Bush, and Governor Rick Perry succeeded only when he let the lobby write the bill. Faced with major opposition from big business, many politicians have acquiesced. But Patrick, with his political base in tea party groups and evangelical churches, is not so beholden to the business community, and at the Austin Club in May, he made it clear who was in charge.
Patrick told the business lobbyists that the women’s privacy act is a passion for him, then offered a warning: “If you’re not with me, I’m not with you.” What the lobbyists heard was, oppose my restroom bill and your clients’ legislation is dead in the Senate.
Patrick was culling the herd. He fully expected businesses with an interest in tourism, corporate relocations, and national employee recruitment to oppose him. What he wanted was to get the businesses not directly affected by the legislation to stand down. Patrick’s veiled threat was about more than just a piece of conservative legislation, though. He was re-establishing the lieutenant governor as the most powerful politician in Texas and positioning himself as the state’s culture warrior in chief.
Much of Patrick’s clout comes from the reach of his office. The power stems from the state constitution and Senate rules, which make the lieutenant governor the ultimate authority on which bills come to the floor for debate. He appoints the committees and then decides which bills those committees will handle. The lieutenant governor also sets the Senate’s daily agenda. If he dislikes a senator or the senator’s legislation, he will simply never recognize him or her to bring a bill up for a vote. Controlling the flow of legislation to such a degree enables the office of lieutenant governor, in the right hands, to bend lawmakers, lobbyists, interest groups—or anyone who has business before the Legislature—to the occupant’s will.
In the nineties, the irascible Democrat Bob Bullock was particularly effective. (Disclosure: Paul Hobby, Texas Monthly’s chairman, served as Bullock’s chief of staff in 1991.) He was famous for using “drive-by ass-chewings” to get his way. Patrick has yet to reach Bullock’s level, but he has several advantages over his predecessors. For one, he has a huge Republican majority in the Senate. And several of the body’s longest-tenured members, some of whom had strident personalities—and who might have fought the lieutenant governor on certain issues—have retired over the past three sessions, leaving a crop of Republican newcomers more aligned with Patrick’s ideology. In fact, about 15 of the 20 Republican senators are like-minded social conservatives. Finally, the Democrats are nearly powerless. In his first session as lieutenant governor, Patrick fulfilled a campaign promise by implementing a rule change—the same one he had first sought in 2007—that raised the number of votes required to block a bill from debate. That has effectively neutered Democrats’ ability to halt the conservative agenda. All of this allows Patrick to run the Senate with ease and leaves him free to pressure lobbyists into, say, staying neutral on his restroom proposal. Otherwise their bills have no chance.
Despite the power of the office, Patrick’s predecessor, David Dewhurst, was viewed around the Capitol as fairly weak during his dozen years in office, from 2003 to 2015. As one senator told this magazine about Dewhurst in 2011, “I don’t think he knows what power is.” For much of that time, the force in state politics was Perry, who, by harshly punishing enemies and rewarding cronies and allies, managed to concentrate an unprecedented amount of power in the governor’s office. When Perry stepped down after fourteen years, he left a leadership vacuum at the top of state government. The incoming governor, Greg Abbott, had a limited agenda in 2015. And House Speaker Joe Straus, supported by a coalition of Democratic and moderate Republican House members, has typically been focused on building compromise among various factions in his chamber. That left Patrick, who eagerly filled the void by setting out an aggressive agenda in 2015 and making himself the dominant figure at the Capitol.
The power dynamics between the big three state leaders appear roughly the same so far in 2017. If anything, Patrick seems even sturdier, having learned in his first session in statewide office how to effectively deploy his authority. Abbott, meanwhile, often looks more like a politician trying to avoid reelection mistakes than one set on creating a legacy. In a December meeting with reporters, Abbott responded to most policy questions by saying he wanted to either study a topic further or take a wait-and-see approach. Asked specifically about Patrick’s restroom proposal, just weeks before the session, Abbott said, “As a general rule I don’t think men should be in women’s bathrooms. . . . We need to dig into the facts and find out who has been harmed or endangered or been compromised and how often that’s happened.” Asked bluntly if a transgender person who identifies as a woman should be considered a woman, Abbott said, “This isn’t an issue that should be determined without a full evaluation, all the information. We are in the information-gathering stage right now.” He did describe his “four pillars” for the session as the ever-controversial freedom, economic opportunity, educational advancement, and safety and security.
Abbott does have a few specific aims: He has been wrestling with fixing the troubled Child Protective Services department, he is pushing for rules requiring the burial or cremation of aborted fetuses, and he has proclaimed that he will cut off state funding to universities that declare themselves as sanctuary campuses for undocumented students. But his agenda for the session is thin, focused mainly on his call for a convention of states to propose amendments to the U.S. Constitution. Otherwise, he’s largely left the field to Patrick. Moreover, the governor seems to lack Patrick’s sharp political instincts for knowing where the base of his party is headed and when to take risks.
For all the news stories written about Patrick and all the controversy he’s generated, his political savvy is rarely mentioned. During his years on talk radio, Patrick learned how to gauge his listeners, picking the topics—the red meat—that would animate his conservative audience. And who are voters if not an audience? He then turned them into his base, busing Houston residents to the Legislature in 2003 to protest their property taxes, for example. He leveled attacks not only on Democrats but also on Republicans, such as President George W. Bush, for being insufficiently conservative. He was a tea party politician before the tea party even existed.
But the best example of Patrick’s gift for political maneuvering was his handling of U.S. senator Ted Cruz, who, until very recently, was the state’s most prominent and popular elected official. Cruz had launched his bid for the presidency as a no-compromise politician who practiced poke-’em-in-the-eye brinkmanship against the Obama administration. Before Cruz even announced his candidacy for president, Patrick had endorsed him, declaring Cruz “the prescription for what is ailing the country and our party.” Patrick was one of Cruz’s most visible surrogates throughout the campaign, standing next to the candidate during Cruz’s victory speech the night of the Texas primary.
But when it became obvious Trump would win the Republican nomination, Patrick deftly shifted to the winning side. After Cruz dropped out of the race, Patrick immediately endorsed and promoted Trump as the party nominee, and Trump reciprocated by naming him the campaign’s state chairman, describing the lieutenant governor as “a passionate conservative who has been a good friend to our campaign.” Meanwhile, other Texas politicians were either noncommittal on Trump or noticeably less enthused. Senior U.S. senator John Cornyn tried to ignore Trump. Abbott eventually, begrudgingly, gave his support but mostly stayed silent, except when he called on the nominee to show “true contrition” after video surfaced of Trump making insulting statements about women.
For his part, Cruz turned his endorsement—or lack thereof—into a saga. At the national party convention, in July, he delivered an awkward and self-destructive speech in which he pointedly refused to endorse Trump and urged Republicans to “vote your conscience.” The reaction from delegates that night in the convention hall and from Cruz’s constituents for weeks afterward was largely negative, and pressure built for him to endorse Trump, specifically in the form of rumors that he would face a primary challenge in 2018.
In the midst of this, Patrick took advantage. He went on Laura Ingraham’s national radio talk show and, with a few well-chosen words, forced Cruz to kowtow to Trump. Patrick said he was “disappointed” in Cruz and said the senator risked being “left in the rearview mirror of the Republican party moving forward.” He went on. “So I’m hoping Ted comes forward. I’m still visiting with him on that issue.” By the end of the week, Cruz had endorsed Trump.
This is the bizarre modern world of politics and media, where a former talk-show host can use talk radio to compel a national politician to take a knee to a billionaire businessman who had his own televised reality show. Unfortunately for Cruz, his endorsement angered his hard-core supporters, and by backing Trump, a man he’d so forcefully opposed, he damaged his brand as the rare public official who puts conservative ideals above ambition. Instead, he looked like another craven politician. In the end, Cruz—through his own fumbling and with an assist from Patrick—ended up with the worst result: Trump supporters still detest him for his convention speech, and the anti-Trump Republicans feel betrayed too.
Patrick, by comparison, came out of the 2016 election as popular as ever among the party’s grass roots—and with a new ally in Washington. When Trump won the presidency, Patrick declared that “Texans will now have a good friend in the White House.” Patrick had walked tall down a path where others tiptoed. In that transcendent moment, Dan Patrick became the most influential politician in Texas. Now he’s investing his significant political capital in a risky, divisive issue.
The history of public toilet controversies is long, dating back at least to the days of ancient Rome, but the women’s room is a relatively new contrivance on the timeline of humanity. Even today some countries don’t have public facilities for women. Historically, a woman’s place was often considered to be at home, and that is where she was meant to use the restroom. (Some feminists have referred to this as the “urinary leash.”) But in 1887, Massachusetts passed a law requiring workplaces that employed women to provide them with a restroom. When Selfridge’s department store opened in London, in 1909, it was the first store in Britain to provide women’s toilets. Harry Selfridge believed ladies were likely to shop longer and spend more of their husbands’ money if they didn’t have to run home for bladder relief. In the first half of the twentieth century, racial segregation laws in Southern states required that public facilities have separate restrooms for men, women, and nonwhite minorities, the latter being a restroom where adult men and women and children often used the same toilets. News accounts at the time reported no sexual assaults.
In the nineties, Texas women were empowered by the election of Governor Ann Richards, who in 1993 signed the “potty parity” law, requiring certain new buildings and renovated sports facilities to have two toilets in women’s restrooms for every one toilet in the men’s room. “On behalf of all women in the state of Texas, and all women who visit the state of Texas, and all of us sports fans who go into those stadiums with those long, long lines, what a pleasure this is,” Richards said at the bill-signing ceremony. Now the restroom parity of the Ann Richards era has given way to the restroom privacy of Dan Patrick’s.
The lieutenant governor first seized on the issue during the 2015 referendum to overturn an antidiscrimination ordinance in Houston that gave protections to people in the lesbian, gay, bisexual, and transgender community. A pastor-led group had been fighting in court to overturn the Houston Equal Rights Ordinance, known as HERO, which was supported by then-mayor Annise Parker, one of the nation’s first openly gay mayors. Patrick and Abbott threw themselves into what should have been a local issue, urging voters to reject the ordinance. Opponents of HERO made the threat of men entering women’s restrooms the center of their campaign, running a controversial television spot of a man following a young girl into a stall. By Election Day, religious-right activists had boiled the HERO fight down to signs that read: “No Men in Women’s Bathrooms.”
In an interview on Fox News, Patrick was challenged by host Megyn Kelly on his claim that antidiscrimination ordinances “allow men in ladies’ rooms.” She asked whether it would allow men in ladies’ rooms or “allow trans women in ladies’ rooms.” Patrick said she didn’t get it. “They don’t have to be dressed like a woman. They can be dressed like an ordinary man. What this creates is a great loophole for all the sexual predators and sex offenders,” he said. “I don’t want an eight-year-old granddaughter walking into a bathroom with a thirty-year-old man there.”
Yet there are already state criminal laws against sexual predators and Peeping Toms. And there’s never been a documented case in Texas of a transgender woman assaulting anyone in a restroom. But in the past year, anytime a perverted man committed a crime in a women’s room in Texas, social conservatives claimed it was proof that equal rights for transgender Texans will protect such criminals. Patrick released a poll that found that 69 percent of Texas voters “believe it should be illegal for a man to enter a women’s restroom.”
The Williams Institute at the UCLA School of Law estimates that there are 125,000 transgender people living in Texas, less than one percent of the state’s population. Many are men who have been living as women and dressing as women their entire adult lives. Some have undergone sex change operations, while others use hormone therapy to grow breasts. Forcing them to use a men’s room could put them at risk of hate crimes.
More than 1,200 Texas businesses have joined with LGBT activists to form a group called Texas Competes as a show of solidarity against laws that allow discrimination, including American Airlines, Southwest Airlines, computer chip manufacturer AMD, Dow Chemical, La Quinta Inns & Suites, the Greater Houston Partnership, and the Dallas Mavericks. Breitbart Texas responded with a story titled “Texas Businesses Surrender to LGBT Agenda on Religious Liberty Issues.” But harping by social conservatives has not prompted the business community to back down. The Texas Association of Business is leading a coalition called Keep Texas Open for Business to fight against Patrick’s proposal. The group has cited reports that North Carolina lost $630 million in business in the first several months after the passage of its bill, and some experts predict that long-term losses could run as high as $5 billion. One study estimated that the Texas loss of economic activity from the restroom bill would range from $964 million to $8.5 billion, with the loss of as many as 185,000 jobs. “We do not want to be North Carolina or Indiana,” said Chris Wallace, the president of the association. Patrick’s aides dismissed the study as “fearmongering” and speculative. Jared Woodfill, the president of the Conservative Republicans of Texas, an advocacy group that promotes “Constitutional liberties based upon Biblical principles,” went so far as to categorize the study as “fake news,” because it analyzed a bill that, at the time, had not yet been filed.
Such fierce opposition recalls the strength demonstrated by the business lobby in successfully killing previous conservative proposals in the past decade, especially on immigration. When Perry called a special session in 2011 to ban sanctuary cities, late home builder Bob Perry (no relation) and grocery store magnate Charles Butt combined forces to snuff out the governor’s anti-immigrant bill, because their businesses needed the workers. In 2015 the Texas Association of Business blocked legislation to abolish the program of in-state college tuition for undocumented children who graduate from a Texas high school. If the business lobby unifies in opposition to the restroom bill, Patrick’s proposal could be in trouble, hence his heavy hints at holding other business-friendly legislation hostage.
With Abbott waffling, the business lobby is relying on Speaker Straus to keep the legislation bottled up in the House. You could almost hear the collective sigh of relief when Straus told Evan Smith of the Texas Tribune last fall that Patrick’s transgender restroom bill wasn’t his “most urgent concern.” Then Straus allowed the cold chill of fear to reemerge. “That doesn’t mean the House [isn’t] going to feel differently than I do.” His message to the lobby seemed clear: God helps those who help themselves, and so does the House speaker. If big business wants to halt the restroom bill, it needs to win over House members. In other words, the lobby is on its own.
Patrick has been as defiant as ever. Shortly before the business roundtable in May at the Austin Club, he told the Houston Chronicle that there had been similar threats of business boycotts before the repeal of HERO, in 2015, and that those threats turned out to be just “bluff and bluster” that amounted to nothing. Since HERO’s defeat, Houston has hosted the 2016 Final Four and this year’s Super Bowl. “I think the handwriting is on the bathroom wall: Stay out of the ladies’ room if you’re a man,” Patrick said. “If it costs me an election, if it costs me a lot of grief, then so be it. If we can’t fight for something this basic, then we’ve lost our country.”
In the end, the restroom bill isn’t just about transgender rights or women’s safety or whether San Antonio will lose the Final Four. It’s also a rare showdown between two political heavyweights in Texas: the business lobby and the lieutenant governor. If Patrick prevails and brings big business to heel, he will not only solidify his power but also set himself up to fulfill whatever political ambitions he may have. But if the bill fails to pass, Patrick’s standing in the Capitol may be diminished, and other interest groups and politicians may soon challenge him. That’s the thing about great power, as Ted Cruz found out. It can be fleeting.