Nine months before the November election, Lt. Gov. Dan Patrick made headlines by suggesting that if Republicans lost their supermajority in the Senate, he would pursue a bold procedural move: further lowering the threshold that is required to bring legislation to the floor.
Now that the election has come and gone — and the GOP indeed lost its supermajority — it remains to be seen how serious Patrick is about the idea, which would strip Senate Democrats of the one tool they have to block legislation they unanimously oppose.
The lieutenant governor, who presides over the Senate, has not made any known public comments since the election about the potential rule change, and senators are being tight-lipped or saying they have not heard anything. The uncertainty comes less than a month and a half before the Legislature gavels in for the 2021 session — and each chamber takes up its rules as one of the first orders of business.
Right now, Senate rules require 19 members, or three-fifths of the body, to vote to bring legislation to the floor. With the reelection loss of Sen. Pete Flores, R-Pleasanton, this November, Republicans are set to begin the session with 18 members.
Patrick already led the charge to decrease that threshold from 21 members — two-thirds — during his first session as lieutenant governor five years ago.
Since the election, Patrick's office has not responded to requests for comment on whether he plans to push a rule change that would lower that threshold so Republicans can keep steamrolling Democrats. Such a change would happen at the beginning of the legislative session and only require the support of a simple majority in the chamber, or 16 members.
Four GOP senators' offices said Tuesday they were unavailable to discuss the topic of Senate rules going into the session.
Sen. Paul Bettencourt of Houston, chairman of the Senate Republican Caucus, said Tuesday he is completing his term as chairman and cannot comment "in advance of the caucus taking a position or not" on a rule change. The caucus is holding a retreat this week.
Another GOP senator, granted anonymity to candidly discuss internal caucus workings, said they expected the issue to come up after the election but have not heard anything yet.
To be sure, it has been an unusual runup to the session so far. The normal preparations have been overshadowed by still-pending discussions about how exactly lawmakers will conduct their business amid the coronavirus pandemic. And when it comes to the hot-button issues that could benefit from a rules change, state leaders have largely held back on detailing their agendas for the time being.
While speaking at a January conference hosted by the Texas Public Policy Foundation, the Austin-based conservative think tank, Patrick first raised the possibility of dropping the current three-fifths rule.
"If we lose one or two seats, then we might have to go to 16 next session," Patrick said. "We might have to go to a simple majority because we will not be stopped in leading on federalism in the United States of America."
Democrats denounced Patrick's January comments, saying the rule change would bring a Washington, D.C.-style gridlock to Austin. On Monday, the chairwoman of the Senate Democratic Caucus, Sen. Carol Alvarado of Houston, said Democratic senators have discussed the possible procedural move since the election, but they have not received any "communication from the lieutenant governor or his office if that's still something that they wanted to do."
"We've just talked among ourselves, and our position remains the same," Alvarado said. "Like I said back then, we like the rule that's in place and keeping the tradition of the Senate of bipartisanship and building consensus. That's important for good government."
The supermajority loss was not entirely unexpected. Flores captured his Democratic-friendly seat in a special election upset two years ago, and his reelection bid was always expected to be an uphill battle. Still, he came closer to hanging on than most expected, losing by 3 percentage points to state Rep. Roland Gutierrez, D-San Antonio.
Senate observers note that not all hope is lost for Republicans with 18 members under the current rule. Democratic Sen. Eddie Lucio Jr. of Brownsville has previously sided with the GOP on some issues, particularly socially conservative measures opposed by other members of his party, and is likely who the Republicans will turn to if they need a 19th vote. Patrick was advertised as giving a "special guest welcome" Tuesday at a virtual fundraiser for Lucio, who won reelection last month after beating back a primary challenge from his left.
Gutierrez said Wednesday that he has not heard anything about Patrick moving to drop the three-fifths threshold, including in a post-election conversation with the lieutenant governor. Gutierrez said he was "gonna give everybody the benefit of the doubt ... that we're gonna move forward with the existing rules."
"It's my hope he doesn't do it," Gutierrez said, describing such a move as "absolutely bad for the institution." "I think there's a lot of issues right now in this particular session that are going to be less about partisanship and [more about] getting the business of government done, particularly the pandemic, budget and redistricting."
Currently, there is one vacancy in the Senate — the seat of former Sen. Pat Fallon, R-Prosper — though it will be filled in a Dec. 19 special election runoff in which both candidates are Republicans. The session starts Jan. 12.
As the days tick down, it has not gone unnoticed outside the Capitol as well that Patrick's January float of ditching the three-fifths rule has not gotten much of a public airing post-election.
TPPF's executive director, Kevin Roberts, said the think tank will work with anyone to implement its agenda this session regardless of any changes to the rules, "but it has been noticeably quiet" when it comes to revisiting Patrick's January float.
"I suspect that once the speaker's in position and the lieutenant governor and speaker and governor have had an opportunity visit about policy priorities," Roberts said, "all kinds of rules will be revisited."
Disclosure: The Texas Public Policy Foundation has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune's journalism. Find a complete list of them here.
This article originally appeared in The Texas Tribune at https://www.texastribune.org/2020/12/02/texas-dan-patrick-senate-three-fifths-rule/.
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