Good morning Austin:
The Texas Senate’s two-thirds rule is dead and gone. Replaced by a three-fifths rule.
Hmm. On strictly numerological grounds, this seems a bad move.
I have always liked two-thirds. It is a noble and elegant fraction. With two-thirds, you know what you’re getting. But three-fifths? What is that? I always have to do a computation in my head to even picture it. It’s really six-tenths, or 60 percent, which is more than half – the noblest of all fractions – and less than two-thirds.
On a road trip, you never think, “Wow, great, I’m now three-fifths of the way home.”
And, in a political context, three-fifths carries the bad air of the three-fifths compromise in the crafting of the U.S. Constitution, in which slaves were counted as three fifths of a person for purposes of calculating representation in Congress and taxation:
Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.
Article I, Section 2, Clause 3
I’m sure Louis Farrakhan, who spent much of his speech at the Million Man March on an extended numerological tangent, would have something bad to say about three-fifths.
But that’s just me, and Louis.
More objectively, the Statesman’s Chuck Lindell explained what happened yesterday in the Texas Senate:
Voting largely along party lines, the Senate watered down a 64-year tradition requiring approval from 21 senators to allow a floor vote on a bill. Now it requires only 19 votes, so the 20 Republican senators will be able to thwart Democratic efforts to block bills — a situation several Republicans described as dysfunctional.
The 20-10 vote, with one Republican abstaining, fulfilled campaign promises by Lt. Gov. Dan Patrick, who led the Senate for the first time Wednesday after taking the oath of office the day before, as well as eight new Republican senators, many elected with strong tea party support.
“This is something I have been fighting for since 2007,” said Patrick, who spent the previous eight years as a state senator representing the Houston are
The clear winner, then, is Patrick, who has now tightened his grip on the Senate over which he presides and already exercises extraordinary power. The losers would seem to be the Democrats, because they are, fractionally speaking, the minority, but also individual members of the Senate, and also a certain sense of the way the Senate operates.
Here is Texas Monthly’s Paul Burka mourning its passing.
I have always been a fan of the two-thirds rule because it gave the minority a fighting chance to take on the majority and it required a level of bridge-building and consensus to pass legislation. On a more basic level, it imposed “adult behavior on people who might be otherwise inclined.” Unfortunately for the Democrats, their party just doesn’t have the numbers to fend off the majority, so Patrick doesn’t have to worry about bridge-building, consensus, or adult behavior as the presiding officer.
The rules change was presented on the floor by Sen. Kevin Eltife, R-Tyler, head of the Senate Administration Committee, and, in his politics and demeanor, the unPatrick.
As this chart from Rice University political scientist Mark Jones indicates, with the lurch right of the Senate as a result of the 2014 election, Eltife is now the least conservative Republican member of the Senate.
As Jones explains, the diminished supermajority both potentially enhances the power of more centrist Republicans like Eltife, but also places them in a more exposed and potentially political dangerous spot.
While the elimination of the Democratic veto has been the most discussed impact of the shift from a 2/3 rule to a 3/5 rule, also relevant is that Republicans will no longer be able to use Democratic obstructionism as a convenient excuse for why bills near and dear to some segments of the GOP base did not pass during the regular session.
Bill Hobby, the state’s longest serving lieutenant governor, wrote in defense of the two-thirds rule in his 2010 book, How Things Really Work: Lessons from a Life in Politics.
The biggest mistake I made as president of the Texas Senate was trying to circumvent the Senate’s two-thirds tradition in 1979.
Frequently, people criticize the Senate’s two-thirds rule. There is no rule called the two-thirds rule and never has been. In 2007, a freshman senator lacking in manners as well as sense, inveighed against the custom at length on his first day in office. The Senate voted 30 to 1 against changing the custom. New members of the club shouldn’t try to change its traditions. Anything that doesn’t have the support of two-thirds of the Senate is seldom a good idea anyway.
That freshman senator, of course, was Dan Patrick. As the Texas Tribune’s Morgan Smith recalled in her recent primer on the Dan Patrick and the two-thirds rule:
In 2007, a Republican state senator from Houston chose the first day of his first legislative session to mount a charge against one of the Texas Legislature’s most storied traditions.
Conservative talk radio host Dan Patrick had made a campaign issue out of attacks on an almost 70-year-old custom requiring two-thirds of the 31 senators to approve before bringing any bill to the floor for debate — a rule that, until then, members of a chamber that prides itself on gentility had seldom questioned.
“We should have simple majority vote,” Patrick said during a brief floor speech. “What happened to majority rule? What about Jefferson and Madison and Monroe? It was all right for them.”
It took his colleagues 15 minutes to shut him down 30 to 1, choosing to emphasize their disdain for what was viewed as an ill-mannered and misguided move by holding a roll call vote on his motion. But that did not deter Patrick, who would become the Legislature’s most vocal opponent of the so-called two-thirds rule over the next eight years.
In a statement after the vote, Patrick acknowledged that history.
This is a change that I have advocated for since I first came to the Texas Senate in 2007. I applaud the action by the Texas Senate today to change the Senate’s operational rules for the 84th Legislative Session. I’m proud of their bold decision.
As defined by the Senate Resolution’s sponsor, Senator Kevin Eltife, these changes adjusting the 2/3rds rule will “make the Texas Senate a better governing body.”
Today’s action will make the Texas Senate even better – and it will help us deliver a conservative agenda a majority of voters elected us to pass.
Sen. Konni Burton, the tea party Tarrant County Republican who replaced Wendy Davis, hailed the change:
Today marks an important step towards safeguarding our hard earned prosperity in Texas. Under the Senate rules we established today, conservatives will have the opportunity to act on items such as securing the border, improving education, and providing tax relief to Texas families. These are the issues voters overwhelmingly elected us to do, and now we must act on our campaign promises.
Sen. Royce West, a Dallas Democrat, lamented the vote.
The step we are taking today in moving away from the tradition of the Senate’s two-thirds rule – in my opinion – does irreparable damage to the institution. The two-thirds rule is one of the things that historically has separated this body from other states and from Congress, in that it forces members to reach across the aisle to seek compromise on the issues for debate that confront the State of Texas in this chamber.
As did Sen. Rodney Ellis, D-Houston:
This is a sad day for the Texas Senate and one that we will look back on and regret. We’re detonating decades of Senate tradition, tradition which has made the Texas State Senate a great deliberative body.
This has been a place where you have to work together to bring a real consensus to move forward on an issue. Sometimes that takes years – believe me, I know – but when the Senate is ready on a controversial issue, that means Texas is ready.
Instead, we’ve decided that if you can’t win through debate, you push it through via a rules change. What we’re telling our successors is to run over the other side when you can, and I don’t think that’s what this body is about.
But Eltife sought to both rub a little dirt on the halo surrounding the two-thirds rule, and suggest that the change to three-fifths would not ultimately undermine its nobler aspirations.
As Christopher Hooks reported in the Texas Observer.
“I have been an advocate of the two-thirds rule since the beginning of the tenure in my Senate,” Eltife said, but it was no longer tenable. He liked the idea of the supermajority requirement, he said, even though some Republican senators wanted to go to 50 percent, and he had worked to preserve it.
The two-thirds rule was broken anyways, he said.
The most partisan bills the Legislature has passed in recent years found a way around the requirement. When bills are brought up during a special session, as 2013’s abortion restrictions were, only a simple majority is needed to get them through the sausage factory. And legislators have plenty of ways to ignore or avoid the two-thirds rule when they really want to during session—that’s the way they passed voter ID.
He has a point. Many Democrats stormed social media today with the hashtag #lockout—the rule change, many said, was patently unfair and would make Texas government dramatically less transparent. But this isn’t a tipping point—it’s more like the Legislature has taken a few more steps down the grand staircase of partisanship that it’s been descending for years. Democrats had very little leverage last session, and they have less now.
At any rate, you could see the two-thirds rule as a sort of artifact of one-party Texas—when the Senate was filled with Democrats, as it was in 1947 when the rule was introduced, the rule helped ensure that broad coalitions were being built and maintained within the party. Its late role as a safeguard for the minority party seems fairly accidental. When then-Senate Majority Leader Harry Reid saw the need to change the rules of the U.S. Senate to overcome gridlock over nominations, he did so, and Democrats cheered. Politics is about power, and sometimes talk about “principle” can obscure that.
It was Sen. John Whitmire (D-Houston) who might have put it best, with what we should call Whitmire’s Dialectic: “It’s probably not as bad as I’m making it out to be,” he said during his remarks, “but it’s probably not as good as you’re making it out to be.
During yesterday’s decorous debate, West engaged Eltife in a colloquy in which he sought to suggest that in the move from two-thirds to three-fifths, the Texas Senate would become more like Congress.
“That’s a pretty dysfunctional body,” West said.
“That’s a given,” Eltife agreed.
“That’s a bad model to utilize,” West said.
“I would agree with that,” Eltife agreed.
But it is the Democrats in the U.S. Senate, who in 2013 eliminated the three-fifths supermajority requirement in the case of most presidential nominations.
As Jeremy Peters of The New York Times reported in November 2013:
The Senate approved the most fundamental alteration of its rules in more than a generation on Thursday, ending the minority party’s ability to filibuster most presidential nominees in response to the partisan gridlock that has plagued Congress for much of the Obama administration.
Furious Republicans accused Democrats of a power grab, warning them that they would deeply regret their action if they lost control of the Senate next year and the White House in years to come. Invoking the Founding Fathers and the meaning of the Constitution, Republicans said Democrats were trampling the minority rights the framers intended to protect. But when the vote was called, Senator Harry Reid, the majority leader who was initially reluctant to force the issue, prevailed 52 to 48.
Under the change, the Senate will be able to cut off debate on executive and judicial branch nominees with a simple majority rather than rounding up a supermajority of 60 votes. The new precedent established by the Senate on Thursday does not apply to Supreme Court nominations or legislation itself.
It represented the culmination of years of frustration over what Democrats denounced as a Republican campaign to stall the machinery of Congress, stymie President Obama’s agenda and block his choices for cabinet posts and federal judgeships by insisting that virtually everything the Senate approves be done by a supermajority.
In National Review John Yoo wrote of the Demorats’ action under Reid:
The biggest loser, however, will not be Democrats or Republicans, but the American constitutional system. Like several other parts of the Obama administration’s political program, the filibuster’s end sacrifices unique constitutional and political features of the American government for short-term political gain. Worried about minority rights, the Framers designed a Constitution that imposed a difficult, hazardous path before any government action could be taken. Legislation had to be able to run the gauntlet of the popular House, the state-chosen Senate, and the nationally elected president, before braving federalism’s limited enumeration on federal powers. “Hence a double security arises to the rights of the people,” James Madison explained in Federalist 51. “The different governments will control each other, at the same time that each will be controlled by itself.”
Under the Framers’ design, domestic action could flow only from high levels of political consensus built upon long and careful deliberation. It forced the political parties to compromise — if President Bush had truly wanted (Miguel) Estrada on the courts, he should have traded political favors with Senate Democrats. Though ever frustrating to those who demand immediate reform or unchecked majority rule, the filibuster rule bolstered these unique features of the American Constitution. They imparted a stability to government and a resistance to sudden impulses that spared the United States the trials and tribulations of Europe, where parliamentary government has often led to wild swings of policy. As political sociologist Louis Hartz observed long ago, there is a reason why the United States never suffered the evils of socialism or Communism.
Democrats, however, have little difficulty trading constitutional stability for short-term political advantage.
But Matt Angle, director of the Democratic Lone Star Project, said the Texas Senate and U.S. Senate are two very different bodies and, “Patrick’s elimination of the 2/3 Rule is far more than a partisan attack on Democrats; it damages and weakens every member of the Texas Senate from both parties. Patrick is stripping power from his members and giving it to himself. It’s a Tom DeLay-style power grab.”
Angle explained that the U.S. Senate is built on a partisan framework. The majority party makes its committee assignments, and the minority party makes its committee assignments.
But in the Texas Senate, all that power is vested with the lieutenant governor and, “the two thirds rule was a check on the power of the lieutenant governor.”
“I think the biggest misinterpretation of the last few days – and it’s exactly what Dan Patrick wanted – is that it got characterized as a partisan shot at the Democrats. What this is is Dan Patrick taking power from individual senators and bringing it to himself.”
Any minority in the Texas Senate – whether its Democrats or rural legislators – will now find its powers reduced. Past lieutenant governors, he said, have succeeded by building consensus. The rules change, Angle said, means that Patrick will have less need or desire to build that consensus.
The Senate newcomers, some of whom were elected on the pledge to end the two-thirds rule, may have celebrated yesterday, said Angle. But, he predicted, they will rue the day.
And now, today’s first ever First Reading pro tip – from David Saleh Rauf of the San Antonio Express-News.