Dan Patrick and the Two-Thirds Rule: A Primer

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.

Enacted at the start of the session, the rule works by placing what is called a “blocker bill” at the beginning of the Senate’s daily calendar, where it sits for the rest of the session. No other bill can be passed unless at least two-thirds of the senators agree to "suspend the regular order of business" and skip over the blocker. 

 

The procedural gambit has stymied legislation on abortion, private school vouchers, voter identification and gun restrictions in the last decade. It has also inspired legendary political maneuvers. In 2007, late Houston Democrat Mario Gallegos, recovering from a liver transplant, had a hospital bed installed in a room next to the Senate chamber against the orders of his doctor so he could be there to help block consideration of a voter ID bill. When Republicans were in the minority, they used the rule’s leverage to knock a redistricting map into friendlier federal courts in 2001.

As Patrick takes the dais as lieutenant governor later this month — presiding over a chamber that has turned over by almost half since his drubbing in 2007 — he will likely have the votes to finally dump it. 

If that happens, the shift will mark a new era for the Senate, and reshuffle the dynamics of political negotiations for parties in both chambers.

Here’s a primer to get you through:

1. Depending on where you stand, the two-thirds rule leads to good governance or abuse of power. Patrick and others who oppose the rule argue that it allows a minority of senators to wield excessive control over the legislative agenda and keeps debate from public view. Proponents, including Republican Sens. Kevin Eltife of Tyler and Kel Seliger of Amarillo in the past, say it encourages members to avoid partisanship in favor of compromise, ultimately improving legislation. The rule has the practical effect of forcing Republicans to earn the support of one or two Democrats to get a bill through the chamber — and of shielding moderates in both parties from difficult votes. It also can protect minority interests in situations where the divide is not partisan, such as on issues where regional rather than political allegiances come into play.

2. The senators vote, but the lieutenant governor appoints. Patrick said at a Thursday news conference that while he's been clear about his feelings on the rule, it will be the "prerogative of the Senate" whether to keep it, a statement consistent with others he made during his campaign for lieutenant governor. But that doesn't mean Patrick doesn't hold sway in the matter — the rules vote will come before Patrick names committee chairmen, and a new crop of senators less inclined to bow to tradition now make up more than half of the Republican caucus.

3. It's about modifying — not eliminating — a supermajority requirement. Patrick has said in the past he favors a system where a simple majority could bring a bill for consideration. But more recently, during his campaign for lieutenant governor, he has advocated an approach mirroring that of the U.S. Senate, where three-fifths of the chamber must give approval to debate a bill. With the current makeup of the Senate, that would mean Republicans could bring bills to the floor without a single vote from one of the chamber's 11 Democrats. But to reach the three-fifths threshold, legislation would still need to earn the support of 19 senators — three votes on top of a simple majority — to be considered. 

4. There are always exceptions. Even with the two-thirds rule in effect, senators have sometimes opted to go around it, a process that under the rules of the Senate only requires a majority vote. Or they’ve passed the two-thirds rule with “special orders” bracketing out specific issues exempted from it, as they did in 2009 and 2011 to help get a voter ID law through the chamber. It’s possible that the 2015 rule could carve out areas like that. And if the two-thirds rule blocks a key piece of legislation during the regular session, the governor can always call lawmakers back for a special session — where the chamber typically operates without invoking the rule.

 

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