The biggest issue in the Senate in terms of the special session on redistricting will be whether the 2/3rds rule is in effect. As explained previously on BOR, the 2/3rds rule requires 21 Senators to vote to suspend the rules to bring a bill up out of order. With 12 Democrats in the 31-member body, the 2/3rds rule gives our party the leverage to stop bad things from coming up to a vote if we stick together.
However, the 2/3rds rule only exists if there's a “Blocker Bill” in place to necessitate suspension of the rules in order to bring up other legislation. No blocker, no 2/3rds rule.
Blocker bills are the norm in the Senate. Federal courts — where most Texas redistricting schemes end up because they're intentionally discriminatory — don't like seeing rule changes for redistricting legislation, because it usually means one side (here, the Republicans) are up to no good and trying to change the rules to win the game.
Below the jump, find out more about Blocker Bills and find out how they've been disregarded in past special sessions to pass discriminatory redistricting schemes.What's a Blocker Bill?
Blocker bills are pieces of legislation passed out of committee early in the process to sit on top of the calendar. To take a bill up “out of order,” Senators must suspend the rules, which requires 2/3rds of Senators to vote for it.
The Legislative Reference Library has more:
For almost half a century, blocker bills have routinely been placed at the top of the Senate's Daily Calendar, which in effect forces a suspension of the regular order of business on every bill. Blocker bills are bills that are introduced and passed out of committee as early as possible in a legislative session in order that they may occupy the first positions on the calendar. They are not intended to be worthy of serious consideration or passage. The sole purpose of a blocker bill is to ensure that at least two-thirds of the membership have an interest in debating a measure before it can come to the floor. Bills that do not enjoy substantial support cannot make it past the blocker bill.
Though it has been set aside on rare occasions, this practice — known as the “two-thirds rule” — has been an honored tradition in the Senate. Among other things, it is generally acknowledged that the Senate's two-thirds rule fosters civility, a willingness to compromise, and a spirit of bipartisanship.
Or, to sum up in the immortal words of Fiddler on the Roof, how does the Senate keep its balance? Tradition!
Blocker Bills are entirely at the discretion of the Lt. Gov, David Dewhurst. If there is no blocker bill, there is no 2/3rds rule, and a simple majority of Republicans can take advantage of that to pass a redistricting scheme that would otherwise be blocked by Senate tradition.
Dewhurst's early indication that there would be no blocker bill, that there ain't never been a blocker bill in a special session, indicates that he is willing to shove the interim maps based on a previous intentionally discriminatory scheme down the throats of Texas voters.
Key to this issue is an exchange between Senator Kirk Watson and Lt. Gov. David Dewhurst during the opening of the special session. Watson peppered Dewhurst with a series of parliamentary inquiries to establish for the record how the Senate would operate vis-a-vis blocker bills and the 2/3rds rule in the special session. Watch the video here. Watson's part starts about 8 minutes in.
Watson asked if the Senate would operate under regular rules. Dewhurst agreed. Then Watson asked if the 2/3rds rule would be in effect. Dewhurst replied yes. Watson then asked about a blocker bill, “as traditionally used by the Senate,” as it was in the 83rd regular session. This is when Dewhurst got flustered.
Dewhurst: No, no, I think you're confused.
Watson: I'm sorry, I don't think I'm confused.
(Let the record show that I don't think Watson's “confused” here. The Dew, on the other hand, was leaning awfully hard on his staff to explain the rules.)
Watson made Dewhurst clarify that there is no rule or requirement of Texas Senate that would prevent placement of a blocker bill during a special called session. Dewhurst responded that the existing rules allow for bills to be placed on the calendar in the regular order that they are referred out of committee. There is no rule or requirement preventing or requiring a blocker bill. Dewhurst added, “there is no rule that refers to a blocker bill.”
Then Watson got into the history of blocker bills in the Senate, prompting this reply from Dewhurst:
“The tradition of the senate in the last ten years — actually going back almost twenty two years — is not to have a blocker bill in sessions, special sessions, and particularly ones in which there is Congressional Redistricting. We have not had a blocker bill in the Texas Senate during the special session for ten years.”
Turns out Dewhurst is wrong.
What's The History of Blocker Bills in Special Sessions?
Dewhurst is wrong. Blocker bills have been used during special sessions, including those with redistricting on the call. In fact, the last time a blocker bill was not used during a special with redistricting was in 2003, when Senate Democrats had to flee to Albuquerque to break quorum.
|A History of Blocker Bills in Special Sessions|
|78th||2003||Yes, 4 called sessions,|
3 on redistricting
2: Yes 1
4. No 2
4: Yes (Reinstated)
|79th||2005||Yes, 3 called sessions||No||Yes|
|1 Democratic Senators flee to Albuquerque to break quorum|
2 Democratic Senators return, and blocker is reinstated as promised; redistricting no longer on call.
So basically there is a history of using blocker bills in special sessions, even those with redistricting on the call. In 2003, Tom Delay's controversial and ultimately unconstitutional mid-decade redistricting scheme relied in part on the removal of a blocker bill to force the plan through, thus forcing Democrats to break quorum.
Should Dewhurst proceed without a blocker bill, it is clear that he will be doing so to force through redistricting against the traditional rules of the Senate in order to pass a map based on intentional discrimination.