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Bob Bullock

Republican former Senators defend anti-majoritarian practices

I appreciate the spirit in which this was offered, but it’s completely out of touch with reality.

The purpose of the 31-member Texas Senate is similar to that of the U.S. Senate: to cool down some of the fevered legislation filed in the Senate or passed by a simple majority of the Texas House of Representatives.

This is accomplished by a Senate rule that requires a super-majority vote (60% of senators on the floor at this time) to bring up a bill for debate. This rule was enacted in 2015; for 70 years previously, a larger, two-thirds vote was required (21 votes of those present).

It’s no coincidence that the 2015 rule change mirrored the Senate’s partisan balance. It allowed Republicans, who held 20 seats, to bring up and pass a bill without any Democrat support. Now — with the possibility that Democrats may gain Senate seats in the general election — the idea has been raised to further lower the threshold during the 2021 legislative session to require only a simple majority vote.

As former Republican senators — with a total of 80 years of service in this wonderful, deliberative body — we oppose this possible change. Requiring only a simple majority would be bad for the Texas Senate, the Texas Legislature, and the State of Texas.

[…]

A stronger rule encourages, even forces, senators to work with colleagues across the political aisle. In our experience, working in a bipartisan manner led to better legislation and made the Texas Senate a more collegial body.

It also ensures legislators from rural and urban areas work together. In our heavily urban state, rural areas could be more easily outvoted under a rule change. In fact, some senators believe this issue is more about the urban/rural split than a partisan one.

Democrat and Republican Lt. Govs. Bill Hobby, Bob Bullock, Rick Perry, Bill Ratliff and David Dewhurst had successful terms under the two-thirds rule. It could be argued that this rule made them better leaders and improved the landmark legislation they passed (school finance, criminal justice reform, tort reform, tax cuts, worker comp reform, etc.).

Anyone notice which Lite Governor they left out of that recitation in the last paragraph? It’s not a coincidence, I assure you.

Let’s put aside the fetishization of super-majorities and the mythmaking that it’s the House producing all of the fever dream legislation these days while the Senate awaits with calm and wisdom to sort out the wheat from the chaff. (Tell me again, which chamber passed the “bathroom bill” in 2017?) The whole “require Senators to work across the aisle for the betterment of The People” thing sounds all nice and “Mr. Smith Goes To Washington”-like, but it ignores the utterly predictable reality of what will happen when and if Democrats achieve a majority in the upper chamber: Republican State Senators will immediately adopt of a model of intractable opposition to any bill that represents a Democratic priority, in the same way that Republican US Senators under Mitch McConnell used the filibuster to block literally everything President Obama wanted to do.

One reason for this is because Democratic State Senators have, to a large degree, taken similar action on many high-profile Republican priorities: redistricting, voter ID, more abortion restrictions, de-funding Planned Parenthood, “sanctuary cities”, “bathroom bills”, and so on. This is exactly why Dan Patrick, and to a lesser extent before him David Dewhurst, first weakened and then replaced the two-thirds rule, on the grounds that an elected legislative majority should be able to pass its bills with majority support. I hate these bills and I hate the effect they have had, but that’s why we have elections. I want a Democratic majority to be able to pass its bills with majority support when it is in that position as well.

But it’s the notion that requiring bipartisan consensus will be a net improvement to the process that is so laughable. Perhaps former Senators Deuell and Estes have forgotten, but the entire reason they are former Senators is because they were defeated in Republican primaries by opponents who successfully argued to the Republican voters in their districts that Deuell and Estes were too bipartisan, and too accommodating to the Democratic minority. They showed insufficient fealty to the Republican orthodoxy, and they needed to go. Would either of them argue with a straight face that Senators Bob Hall and Pat Fallon would “work with colleagues across the political aisle” in a hypothetical 16-15 or 17-14 Democratic Senate, in order to encourage better legislation and a more collegial atmosphere? I couldn’t even type that last sentence without snorting. The outcome we will get in a Senate with a modest Democratic majority and any kind of super-majoritarian rules is a Senate that passes no bills.

Again, I understand why this super-majority idea has some appeal. Maybe in a Democratic Senate where the likes of Krier and Ratliff and Sibley and Ogden and Deuell and Estes were the typical Republican Senators and none of them feared being tarred and feathered by their seething primary voters, we could indulge in this little fantasy. We don’t live in that world any more. I can’t even see it in my rearview mirror. The only thing this proposal would accomplish is the extended lifespan of every Republican priority from the past 20 years, possibly forever. I suspect they all know this, and that it appeals to them a lot more than the let’s-all-join-hands-and-work-together ideal ever would.

Of course some people will split their votes

It’s just a matter of how many of them do so, and if the races in question are close enough for it to matter.

Sen. Leticia Van de Putte

Sen. Leticia Van de Putte

Democrats are hoping the Republicans will eventually make some of the mistakes Democrats themselves made back when they were on top and the GOP was trying to break down the doors of power. They ran candidates — particularly at the national level — who were too liberal for conservative Texas Democrats to stomach. They developed a split between conservatives and liberals that made it possible for Republicans to peel away the conservatives and form the beginnings of what is now a solid Republican majority.

The notion behind the current Van de Putte proposition is that — to Democrats — Patrick is so extreme that even some Republicans will rebel and vote for the Democrat. In a debate with Patrick this year, San Antonio Mayor Julián Castro said the Houston Republican would be the Democrats’ “meal ticket” in November.

The differences between the two top candidates (there are also a Libertarian, a Green and an independent in the race) are stark: gender, ethnicity, party, ideology, roots. She is likely to attack his positions on immigration, health care, abortion, equal pay and education. He is likely to attack her positions on some of those same things, characterizing her as a liberal who wants to expand government and poisoning his darts with the unpopularity of the Democratic president.

To be the only Democratic statewide winner in November, Van de Putte would need to make sure Patrick doesn’t perform as well as Greg Abbott. And that requires one to imagine the voter who will vote for Abbott and then turn and vote for Van de Putte — who will vote against Wendy Davis for governor and against Patrick for lieutenant governor. Republicans are betting there won’t be many of those. Democrats are hoping that women and minorities will have an allergic reaction to his rhetoric and positions, creating an opportunity for their candidate.

It happened before, but this was a different state when voters elected George W. Bush, a Republican, and Bob Bullock, a Democrat, to the top two positions on the ballot. It nearly happened again four years later, when Bush won re-election against Garry Mauro by 37 percentage points and Republican Rick Perry beat Democrat John Sharp by less than 2 points in the race for lieutenant governor.

It’s true you have to go back to 1994 to find an example of a party split at the top of state government, but you don’t have to go back nearly that far to find a significant split in how people voted for those two offices. Just in 2010, more than 300,000 people voted for Bill White and David Dewhurst. That always gets overlooked because the races were not close in 2010, making White’s effort little more than a footnote, but the point is simply that people – many people – can and will split their vote in the right set of circumstances.

We also saw plenty of examples of this in 2012, though not at the statewide level. Congressman Pete Gallego, State Rep. Craig Eiland, and *ahem* State Sen. Wendy Davis all won races in districts that voted majority Republican otherwise. In Harris County, some 40,000 people voted for Mitt Romney and Adrian Garcia, while in the other direction another fifteen or twenty thousand voted for Barack Obama and Mike Anderson. In all of these cases, those ticket splitters very much did matter – the first three could not have won without them, while the latter two could have gone either way, as Harris County was basically 50-50 that year. This is why the efforts of Battleground Texas mean so much. Democrats have to get their base vote up, or else it won’t matter how much crossover appeal Leticia Van de Putte – or Wendy Davis, or Sam Houston, or Mike Collier – may have. It’s not either-or, it’s both or nothing.

Rick Perry will be with us for a long time

Though we finally have an official end date for the reign of Rick Perry, it will be years before we fully purge him from our system.

Like corndogs, the Perry effect lingers

Like corndogs, the Perry effect lingers

The strong lieutenant governor legend gelled during Bill Hobby’s tenure from 1973 to 1991. He was a parliamentarian before he was lieutenant governor, the son of a governor and a United States cabinet secretary. His successor was Bob Bullock, who held the office for eight years but who built a power base in Texas government during 16 years as comptroller of public accounts.

Perry followed Bullock’s model, mentoring young lawyers and policy wonks and political animals and then posting them in agencies throughout the state government. After six years of Perry being in the governor’s office, virtually every appointee had him to thank for their post. And over his first decade in office, the governor seeded the executive branch with his former aides and their like-minded peers. They’re all over the place, with titles like executive director, general counsel, communications director and so on.

He owns it. Bullock did something similar by heading a big agency that eventually sprinkled former employees all over state government. Bullock people were everywhere. He had a long reach and an impressive intelligence network.

And Perry picked up the lesson, turning what was designed as a weak office into a strong one.

He has made it look better than it is.

His successor has to start all over. Perry’s transformation of the office might be permanent. The agencies might naturally turn their ears to a governor for guidance after all these years out of habit.

It will take six years to replace all the appointees who owe their jobs to Perry, a third of the jobs turning over every two years. The people at the tops of all of those agency organization charts will linger until retirement — Perry’s legacy —and while they may be helpful to a new governor, they will not be indebted like they are to the old boss.

While no one currently owes any allegiance to Greg Abbott, it’s unlikely that he’ll have too much trouble from anyone. They don’t need to love him, or to owe him, they’ll work for him because Abbott isn’t going to do anything much different than Perry had been doing. The interesting question to ponder is what happens in the event of, say, a Governor Davis in 2015 or a Governor Castro in 2019. How much can the Perry people, or the Perry and Abbott people do to impede a future Democratic Governor? In the old days one would have expected even a political appointee to be a professional first and foremost. To be fair, some of Perry’s appointees have been pros – while none of them would be on my short lists and all of them have done things I disagree with, I’d say Tom Pauken, Tom Suehs, Robert Scott, and Michael Williams have met my expectations for professionalism. But it’s not just them, it’s the people who work for them, who will be there well after Perry’s successors get to pick their agency heads. Who knows what kind of mischief they could cause if they had a mind to do so. Maybe I’m worrying about nothing here, but we’ve never had a governor like Rick Perry before. I don’t think it’s unusual to wonder about how life after Rick Perry will be.

Lawsuit filed against business margins tax

Allstate Claims Service, L.P., which is based in Boerne, has filed a lawsuit alleging that the business margins tax is an illegally-passed income tax in Texas. Oh, boy.

Nikki Laing, a CPA and third-year Baylor law student, studied the structure of the tax for a Baylor Law Review article titled “An Income Tax By Any Other Name is Still an Income Tax.” She believes it’s just what the plaintiffs say it is: an income tax.

“Despite the name being a margins tax, if you look at it closely, it is in effect an income tax. You start with your gross revenue and you deduct certain statutory deductions,” Laing said. “It fits the comprehensive definition of an income tax, which is revenue less expenses.”

Rep. Jim Keffer, R-Eastland, said it’s not an income tax because businesses can get hit with it even in years when they don’t have net income (one of the chief complaints critics leveled at the tax when it was created).

“This is not an income tax per se; this is a gross receipts with deduction capabilities,” Keffer said. “And you’re taxed whether you have income or not, or profits so to speak.”

It’s not an academic proposition. Under a provision in the Texas Constitution, known as the “Bullock Amendment” because it was championed by the legendary former Lt. Gov. Bob Bullock, no income tax can be passed in Texas without voter approval. The 2006 overhaul was not submitted for approval by Texas voters.

That’s the basic contention in the lawsuit — that the Legislature passed an income tax without getting the necessary voter approval. The lawsuit asks that the state stop all “attempts to enforce, collect, and assess this unconstitutional tax.”

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What surprises some tax experts is that it has taken so long for someone to sue on the ground that it’s an income tax. Perry angered many fellow conservatives when he signed the “margins tax” into law, but he fought for exemptions in the law and resisted all attempts to raise taxes to deal with a huge budget shortfall earlier this year.

“I think all the tax practitioners in the state have been waiting for this shoe to drop,” said tax attorney William Grimsinger, who blogged about the lawsuit in a recent column. “The ability [to sue] has has been out there for a while. This is really the first time anybody has done it.”

Osler McCarthy, a spokesman for the Texas Supreme Court, said that under special provisions in the 2006 law, any challenge of its constitutionality goes straight to the high court. He said the court will be required to render a ruling by late November, almost six years to the day after the court ruled that the current school finance system was unconstitutional.

“The filing is direct in the Supreme Court, so you bypass the trial court and the courts of appeal,” McCarthy said. “That makes this one different.”

Here’s Grimsinger’s blog post, which mostly recaps the story of the margins tax and the timeline for the Supreme Court; he thinks they’ll rule before Thanksgiving. As we know, the margins tax has helped create a structural deficit in the state’s budget, since it doesn’t collect enough to pay for the 2006 property tax cut. If it gets thrown out, then as was the case with the West Orange-Cove lawsuit that led to its creation, the Court will presumably give the Lege a deadline for addressing the problems of the margins tax, or to come up with some alternate source of revenue to replace it since the budget would then be out of balance. Can you imagine how much fun that will be?