When a Key Democrat Left Town, Republicans Snuck Through Controversial Nominee

Last month, Texas’ Democratic senators thought they had a plan to block Josh McGee’s confirmation to the state Pension Review Board. McGee was appointed to the board by Governor Greg Abbott in 2015 and his term, which expires in 2021, was pending confirmation in the Senate. McGee, a Houston economist employed by right-wing think tanks, is a harsh critic of public pensions. Labor groups were uniformly opposed to him, likening his appointment to “putting a fox in the pension henhouse.”

McGee needed two-thirds of the Senate — 21 of the 31 senators — to vote in his favor to continue on the board. The Senate’s 11 Democrats had decided to vote together against him — meaning McGee’s confirmation was short by one vote.

But on April 20, Senator Joan Huffman, R-Houston, called for a vote on McGee at an inopportune time for the Democrats. Senator Royce West, D-Dallas, was in Chicago helping the University of North Texas’ law school secure accreditation. His absence gave Senate Republicans the slight margin they needed to push the confirmation through. McGee was confirmed 20-10 that day. That move, according to West and a legislative rules expert, is a departure from normal procedure, but McGee was confirmed despite complaints from Democrats that they had not received proper notice of the vote.

“The majority just waited for that absence,” said Ed Sills, a spokesperson for AFL-CIO. “There were 11 votes against the confirmation and they would’ve blocked McGee.”

According to Hugh Brady, a law professor at the University of Texas at Austin and an expert on the state’s legislative rules, traditionally, once the Senate Nominations Committee has voted in favor of a nominee, it is reported to the full body. Then, before the vote is taken up, senators are given notice that pending nominations will be called for a vote. With McGee, that notice was never given.

“That usually is not the way that works,” said Brady. “Usually, they say ‘I intend to take up nominations tomorrow.’”

According to the Senate rules, nominations “shall not be acted upon unless the names of the nominees or individual nominee shall have been printed and a copy thereof furnished to each member 24 hours beforehand.”

But Senate Republicans interpreted that rule differently than usual with the McGee confirmation, according to West. They claimed that when the confirmation was sent to the Senate from the committee, it counted as notice.

“Once they give notice, then notice is given forever,” said West. “I disagree with that, but that’s just how they interpret it.”

West said that he had planned on voting against McGee and didn’t know the vote would be brought up that day. “I had to make a decision whether or not to be here,” he said. “I thought it was more important to try to get the accreditation for students that are going to graduate from law school to be able to take the bar.”

Nomination proceedings are typically uncontroversial affairs. Even Kelcy Warren, the pipeline mogul that environmental groups vehemently protested, was confirmed 22-9 to the Texas Parks and Wildlife Commission. In most cases, the senator of the nominee’s home district works with senators to ensure the nomination will pass. By the time the vote is brought to the floor, they have the votes needed to confirm the nominee.

“It’s very rare for nominations to not be confirmed by the Texas Senate,” said Brady. “I don’t recall personally seeing the Senate ever waiting for a member to be off the floor to bring up a vote.”

McGee is vice president of the Arnold Foundation, a group chaired by former Enron trader John Arnold, and is a senior fellow at the Manhattan Institute, which identifies as a “free-market think tank” set up to “develop and disseminate new ideas that foster greater economic choice and individual responsibility.” McGee has argued that defined benefit plans, which guarantee benefits to retirees even if employers are unable to come up with the money, should be phased out for new employees.

“This was extraordinary,” said Sills, the AFL-CIO spokesperson. “The senators who were opposed recognized that there’s a problem with putting someone who has taken a very public position against pensions in charge of the state pension board. There’s a real conflict of interest.”