Above: State Sen. Kevin Eltife answers questions from State Sen. Rodney Ellis, while Lt. Gov. Dan Patrick listens intently.
When death came for the two-thirds rule, the 68-year-old dictate of the Texas Senate that requires 21 of the chamber’s 31 senators to agree to vote on a bill, it wasn’t exactly swift, but it was a gentler demise than some might have expected. For years, then-Sen. Dan Patrick had fulminated against the rule, which he saw as an unnecessary restraint on the power of Senate Republicans.
In 2007, on Patrick’s first day on the floor, he proposed changing to the rule to a simple majority—and he was voted down 30 to 1. But as the years have passed, Patrick’s critique of the rule has gained traction, and a number of the chamber’s new GOP senators were elected having pledged to junk it. Patrick’s election made it a virtual certainty that the rule would be killed.
But when senators voted on the rules they’ll use for the 84th legislative session today, as part of a package authored by state Sen. Kevin Eltife (R-Tyler), it wasn’t Patrick’s simple majority that made it through—his original idea, and one he’d mentioned from time to time during his primary campaign—but a slightly reduced supermajority barrier. Instead of two-thirds, the Senate will now require three-fifths of the Senate, or 19 senators, to bring a bill to a vote.
There are 20 Republicans in the Senate, so the small change means quite a bit. Eltife’s floor speech in defense of the measure made a few simple points: Keeping a supermajority requirement would address some of the arguments made by backers of the two-thirds rule, namely that its disappearance would precipitate a split between urban and rural senators, who could find themselves competing for tight resources.
Winning 19 votes is a difficult thing, Eltife said, and wouldn’t be so different in practice from getting 21. He hoped that the change would bring more decorum to the Senate, not less. It wasn’t about partisanship, he said, but about good government.
The Democrats in the chamber, who will have less leverage than ever as a result of the rule change, had a hard time swallowing that. For nearly two hours, they took turns interrogating Eltife and attempting to poke holes in his reasoning. Sen. Kirk Watson (D-Austin) argued that the rule changes as a whole would make it easier for Senate leadership to sneak through bills and rule changes later in the session. Many others argued from principle, saying that scrapping the two-thirds tradition would make the Senate a less bipartisan place, which was certainly the point.
Sen. Rodney Ellis (D-Houston) quoted from former Lt. Gov. Bill Hobby’s memoirs, in which he called a 1979 attempt to circumvent the two-thirds rule the “biggest mistake I made as president of the Texas Senate.” Hobby added that “anything that doesn’t have the support of two-thirds of the Senate is seldom a good idea.” Ellis said he hoped those in the chamber today would have enough foresight to agree with Hobby by the time they wrote their books. “I think it’s a sad day for the Senate,” Ellis said, “and one we will look back on with regret.”
Sen. Jose Rodriguez (D-El Paso) was more pointed. The three-fifths standard, he reminded the room, was the same one used by the U.S. Senate, the world’s least effective deliberative body. “Members, I hate to say it,” he said, “but I think we’re going the way of Congress.”
“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.”
The two-thirds rule was junked by a vote of 20 to 10: One Republican, Craig Estes of Wichita Falls, abstained from voting, and one Democrat, the ever-independent Eddie Lucio of Brownsville, voted for it.
In a separate vote, senators cut the number of the chamber’s committees from 18 to 14. Getting the axe are Jurisprudence, Economic Development, Government Organization and Open Government committees. Three were chaired by Democrats last session, and one by Republican Bob Deuell, who was beaten in his primary.
It’s possible that years from now, we might look back, as Ellis suggested more than once, and see this as an historic moment in Texas government. Ellis predicted that moving to a simple majority vote system was inevitable. It seems clear that Patrick, when he writes his memoirs, will not be able to declare what Lt. Gov. Albert Clinton Horton did, on the last day of Texas’ 1st Legislature, May 13, 1846:
I can safely place my hand upon my heart and say that I have never taken advantage of my station, nor endeavored to pervert the Rules of the Senate, for the purpose of carrying into effect favorite views or projects.
Still, Patrick seemed at peace with himself. As he gaveled the Senate to a close on the first day he’d spent in control of it, he offered the chamber a brief benediction: “Go with god,” he said. “Go safely.”