As Americans, we have a profound respect for the rules. The rule of law is part of what makes our democracy great. There have been around forty-three transitions of power in the course of presidential elections, for example, and every single one has been peaceful — even when it seems the stakes couldn't be higher. Americans recognize that elections have consequences, and that we will nearly always have another opportunity to put good leaders in office.
Tuesday night's travesty on the floor of the Texas Senate went beyond normal electoral consequences, and does enormous damage to the spirit of respectful, measured (albeit rarely entirely reasonable) deliberation that governs the second-most populous state in the Union.
Some have argued that the Lieutenant Governor can be forgiven for distorting the Senate's rules Tuesday because it was such an emotional topic. I could not disagree more.
Read why below the jump.Debate is an emotional process. The Texas Senate frequently takes on topics which affect people's lives and livelihood. In the regular session, it functions under a “two-thirds rule,” which limits the discussion of controversial legislation — a sort of bottleneck which protects Texas minority positions from the whims of a partisan majority, regardless of the specific party of that majority. Another such bottleneck is the filibuster. Both are maintained by the Senate itself, a token of goodwill re-gifted at the beginning of each session from the majority party to the minority.
Some have argued that the Lieutenant Governor can be forgiven for distorting the Senate's rules Tuesday because it was such an emotional topic. I could not disagree more. The rules exist for exactly these sorts of topics; we have rules to fall back on when the tides of human logic and reason break upon the rocks of pain, suffering, and compassion. To bend the rules because a topic is “important” or “emotional” amounts to a surrender of our God-given grace, that thing that separates us from every other animal on the planet.
Others hold that the protestors in the gallery went too far in their civil disobedience — that they violated our sacred rules and tarnished the democratic process. Out of context, that holding might be correct. However, most who are arguing the “angry mob” hypothesis are unaware of the circumstances that led to that peaceful disobedience.
Unfortunately, I have seen little coverage or analysis of the circumstances of the procedural challenges to Senator Davis' filibuster. As such, I have attempted to outline five of the most serious trespasses, which I believe amount to callous subversion of our democracy.
- Firstly, Senator Zaffirini — who identifies as “pro-life” — read Senate rules that clearly outlined how Senator Davis was owed three warnings on germaneness. Davis received only two such warnings, Dr. Zaffirini pointed out; the third was on aid to a senator engaged in a filibuster, and should properly have been applied to Senator Ellis, not to Senator Davis. Thus, terminating her filibuster at that time was clearly out of order.
- Indeed, the germaneness warnings were given inappropriately and arbitrarily. In both cases, Senator Davis was providing a context for SB 5 in terms of other restrictions on women seeking abortions, as well as on clinics and providers of abortions, both of which are dealt with in SB 5. Senator Watson read several examples of topics and suitably germane digressions right out of the Senate rule book which were clearly less relevant than the topics discussed by Senator Davis.
- At that point, Senator Watson was interrupted by another Senator, which should have been impossible, because he hadn't yielded the floor. (The rule that allows a filibuster in legislative bodies that have such mechanisms enables a speaking member to maintain control of the floor so long as he or she is speaking.) Indeed, the presiding officer recognized another senator during Senator Watson's time not once but twice — with Kirk Watson having yielded the floor on neither occasion.
- Senator Van de Putte offered a motion to adjourn, which takes precedence over all other motions and votes and points of order in progress — a well-established and near-universal point in parliamentary manuals. She was ignored; the Lieutenant Governor disingenuously claimed he couldn't hear her, though everyone in the gallery clearly could (and thus the outburst).
- After giving Davis a third warning, Dewhurst should have held a vote on whether to allow the filibuster to continue. It does not appear that he or Senator Duncan did so, though to be fair, everyone seems confused about the exact nature of the votes taken. It would not have hurt the Lieutenant Governor to hold such a vote; it would almost certainly have been decided along party lines, and the filibuster would have ended.
Finally, and probably most importantly, respect was not given to Senator Davis in the same measure it has been given to senators filibustering in the past.
For example, Mother Jones reports on a story (of which one senator reminded the body on Tuesday): “In 1977, then-Texas Sen. Bill Meier staged a 43-hour filibuster over a bill he believed to be an attack on the state's open records laws. He wore an 'astronaut bag' on the Senate floor, and when it filled up, then Lt. Gov. Bill Hobby would arrange to take a message from the House, while Meier ran to the women's restroom (closest to his desk) to empty the bag. On each trip, two sergeants-at-arms came with him to ensure he never sat down.” Yet Senator Davis was cited for receiving assistance with a back brace.
Senator Watson argued passionately that Senator Davis' filibuster had received more scrutiny than any of the other hundred-plus recorded filibusters in Texas history. I think if one were to research such filibusters, one would see that Senator Watson was right: Senator Davis was subjected to scrutiny beyond what any male senator has ever received while filibustering.
Reading the phonebook may not be germane, strictly speaking, but that fact seems to have been ignored out of respect for minority rights during previous filibusters. And yet Wendy Davis, who spoke about no topic other than abortion, was accused of veering off-topic.
I believe that many of these transgressions are attributable to the Lieutenant Governor having staked his political future on the outcome of the SB 5 vote.
Mr. Dewhurst had all of his chips on the table, and he couldn't afford to lose; so he sacrificed Senate tradition and rules to eke out a pyrrhic victory, a victory which ultimately never materialized for him. A victory which was denied by protesters who were not an unruly mob, but rather witnesses to grave violations of our democratic process.
While I disagree with the content of Senate Bill 5, I understand that elections have consequences. I think many Texans would accept SB 5's legitimacy, had it passed without violation of the rules, even as they highlighted its failings and fatal consequences. Had Dewhurst and company violated no rules, and had protestors still interrupted the legislative process, I would be among the first to condemn the “unruly mob.” However, in light of the subversion of the democratic process Tuesday night, I believe the totally ruly mob is to be praised for fighting to preserve our democratic values. They prevented procedural transgressions from snowballing into a greater injustice.
At this time, the greatest consequence of Tuesday night's events is the chilling effect of the Lieutenant Governor's failures on the deliberative spirit of the Texas Senate.
Indeed, by ruling poorly and forcing the Senate to put his rulings to a vote, the Lieutenant Governor — and indeed Senate Republicans as a group — altered the precedents of the Senate in such a way that, effectively, any future legislative debates may be ruled out of order on germaneness grounds, no matter how relevant. The Senate functions on precedent, and David Dewhurst and Robert Duncan sadly wiped away over a century of Senate precedent in one fell swoop.
Senate Republicans have also sealed their own fate. One day, Texas will be a blue state, and they will regret these actions when rules to protect the rights of the minority party no longer exist or are simply ignored.
In the long term, I fear that the change will convert the talking filibuster into a less meaningful procedural filibuster, composed largely of points of order and parliamentary inquiries. Instead of requiring senators to stay on topic, the door has been opened to lodging frivolous objections on any matter with which a senator disagrees. We have seen how this works in the U.S. Senate, which accomplishes little or nothing of late.
Furthermore, the blatant disregard for the rules destroys trust within the body, which depends upon comity for its proceedings. How Senators are to return on Monday and work together after this week's events remains to be seen.