House Fights on Familiar Ground: The Rules

It was just a rules fight, commonplace in the Texas House, where everything moves as slowly as the last two stop-start-stop-start minutes of a tight college basketball game.

Still, it’s worth some attention. Last week, the House locked over a parliamentary point of order on its first piece of major legislation this session — a sonogram abortion bill (HB 15) dear to the right and to the governor, and indigestible to the left and to most of the small huddle of Democrats remaining in the opposition. It was the first tussle of the legislative session, with both sides sizing up the competition in advance of other debates still to come over the budget, redistricting, sanctuary cities and other immigration laws, voter ID, and eminent domain.

The sonogram bill, one of five given “emergency” status by Gov. Rick Perry in order to speed consideration by lawmakers, would require doctors to perform sonograms on women before performing abortions, to explain in detail the results of the sonograms, and to offer to share video and audio from the sonograms. Sponsors call it “informed consent” and hope it would lower the number of abortions performed in Texas; opponents paint it as an intrusion into a private doctor-patient matter that would add guilt and emotional pain to women in difficult situations.

That policy fight was the reason for the rules fight. In the House, what starts with substance often ends with procedure. Traditionally, legislation gets filed and sent to a committee, which holds hearings and votes to kill or advance the legislation. What advances from there, at least in the House, goes to the Calendars Committee, which decides when (if at all) the full House should consider it. Once it’s in the House, lawmakers debate, amend and then either kill or pass the legislation.

That’s the Sesame Street version. What really happens on the floor is more tactical. Both sides measure their strength. If they’ve got the numbers they need, they work toward a vote. If they don’t, they work the rules. Can the vote be delayed or prevented? Was a rule broken on the way to the vote that might be used to temporarily or permanently spike the legislation?

Some lawmakers, like Rep. Warren Chisum, R-Pampa, have made an art form of it. He became so effective at spotting procedural fouls in the 1990s that members regularly whistled — the sound of bombs dropping — whenever he approached the chamber’s back microphone to raise objections, or points of order, against legislation he wanted to obstruct.

It’s a time-honored tactic available to anyone with a desire to trip up a majority. Everyone knows it and everyone uses it, to the point of hiring staffers and consultants whose sole jobs are to find violations and glitches that can be used to derail fast-moving issues. It’s not just the opposition: Supporters plot and scheme against obstructionists like Pinkertons trying to outwit train robbers.

Witness forms are standard targets. People who go to the Capitol to testify on legislation fill out forms, which become part of the records attached to a bill. If any of those forms aren’t filled out correctly and then become part of the record, those mistakes can turn into points of order when that legislation gets to the floor of the House.

On the sonogram bill, the State Affairs Committee decided not to take testimony on the bill itself, but to hear from witnesses about the general idea of sonograms, about requiring doctors to require women to listen to or view sonogram results, and so on. Only after the testimony did they bring up the bills themselves. Why? Because that’s a way of taking testimony without risking a record filled with incorrect witness forms. No mistakes, no points of order.

That’s all within the rules, but the opposition decided to stop things anyway, saying the practice violates tradition and makes it harder to find out who’s for what part of each bit of legislation. It would set a bad precedent, they argued. After some talk — a private scrum of legislators who started at the podium and then retired to a conference room in back — both sides backed down. The sonogram bill went back to committee for a quick hearing and a vote, then on to Calendars for a new appointment in the full House, and then to the House itself, starting over 24 hours after the first try.

Importantly, the folks in management agreed to go back to the traditional way of hearing testimony, with witness forms, potential mistakes and all the rest. Rep. Jessica Farrar, D-Houston, downplayed the confrontation and said it’s not a sign of any bad blood between the parties. Rep. Byron Cook, the Corsicana Republican who chairs the State Affairs panel, said he was just trying to be efficient with the testimony and wasn’t trying to pull a fast one.

Asked about it a day later, he was philosophical: “This is a place where tradition is very important.”