Texas Supreme Court may decide next plot twist in the Democratic walkout

Thursday, July 22, 2021
Texas House Republicans vote to arrest absent Democrats
The arrest warrant tells the sergeant at arms and Texas DPS to arrest state representatives who broke quorum and bring them back.

AUSTIN, Texas -- The Texas legislature is immobilized. The governor is fuming. And the next chapter in the gamesmanship that has engulfed Republican efforts to rewrite Texas voting laws may fall to the state's third branch of government: the judiciary.

The Texas Supreme Court has been asked to rule whether Gov. Greg Abbott's unprecedented line-item veto of Article X in the state budget - which pays for the Legislature and its staff - is constitutional.

Abbott issued the veto after the regular legislative session ended, pulling one of the few political levers at his disposal to try to force Democratic lawmakers to show up for a special session if they want their staff to keep getting paid when the next fiscal year starts Sept. 1.

It didn't work, with enough House Democrats leaving the state to deprive the chamber of the quorum needed to conduct business.

Now the state's all-Republican highest civil court - with four of eight members appointed by Abbott and one seat vacant - has been asked by the House Democrats who broke quorum to overturn the veto.

Legally, the case hinges on whether the Texas Constitution allows a governor to cut off funding for an equal branch of government.

Politically, it's unclear whether the court would be doing Abbott a bigger favor by upholding his veto power, or by extricating him from a stalemate that's not going his way.

Either way it goes, the case will have broad implications for the future of Texas governance, said Brandon Rottinghaus, a political science professor at the University of Houston.

If the veto is upheld, it strengthens executive power, giving Abbott and future governors a new axe to wield over the Legislature.

"This is well beyond the Schoolhouse Rock version of how government works," Rottinghaus said, referencing a children's animated series that simplified political concepts into cartoons. "This is a political story as much as it is an institutional separation of powers story. So it's going to really push the boundaries of what's allowable in Texas, especially in its governor."

And if Abbott's veto is upheld it would likely deflate the Democrats who fled to Washington D.C., leaving them to shoulder part of the blame if about 2,100 legislative staffers lose their jobs come fall.

"It takes a lot of the wind out of the sails of the Democrats if the courts back the governor in this fight. So that's really, I think, what they're waiting for," he said. "The bottom line is that they can't keep doing this forever, that the Democrats are going to see that at some point, politically, they're not getting any more purchase."

And the court itself could face political repercussions when its members are up for reelection. Courts have not pushed back on executive power for decades, Rottinghaus said. The doctrine of separation of powers has been eroded over the last couple of decades, he says, and if the court takes Abbott's side, then it's likely to further blur the line.

"I'm a big believer in separation of powers. I don't think this is a partisan argument," Rottinghaus said, saying he wished the whole Legislature, both parties, would "stand up for itself collectively" against the move. "To boil it down, this is basically a question about which power's more robust, the power of the executive veto or the separation of powers - institutions that have been weakened by political fights."

Texas House Speaker Dade Phelan, a Beaumont Republican, expressed concerns about the veto during an interview soon after Abbott announced his plans - although he focused on the legislative staffers who would not get paid if the funding isn't restored rather than whether the move was constitutionally sound.

"I understand the frustration the governor has in [lawmakers] not passing those emergency items - they were priorities of the governor, they were priorities of mine, priorities of many members of the Legislature," Phelan said in an interview earlier this month with The Texas Tribune. "My only concern is how it impacts staff, especially those who live here in Austin, which is not an inexpensive place to live and raise your family and children.

Jeffrey Abramson, a University of Texas at Austin law and government professor, says he believes the veto infringes on the Texas Constitution.

"Like every other state constitution and the U.S. Constitution, the Texas Constitution is based on the fundamental principle that separating government power among three coequal branches of government is the best way to limit the possibility of tyranny," Abramson said in emailed comments. "Gov. Abbott's defunding of the Legislature, by vetoing the part of the budget that provides funds for the legislature, is a clear and frightening attack on separation of powers. It is an attempted executive coup."

It's unclear when the Texas Supreme Court could rule on the issue - or if it will at all. It could rule any day now, delay a decision or decide the court does not have the jurisdiction over the case at all. The justices could also rule to disallow part of the veto - for example, legislators are allowed a per diem payment under the constitution - or find that the issue is not yet ripe and punt it down the road to decide at another time. Attorneys for House Democrats asked for the court to expedite its decision "well before" the new budget comes into effect.

"If I had to really put money on it, I would say that the court would back the governor's veto, in part because they might view this as being a temporary political skirmish that can be resolved," Rottinghaus said.

This saga began after Texas House Democrats employed a last-ditch effort during the last leg of the regular session at the end of May to block voting restrictions legislation. Many of the representatives walked out of the chamber to prevent a quorum and therefore a vote on the bill - a move rarely used but allowed under House rules. Opponents to the blocked bill say the proposed restrictions are naked voter suppression that would especially impede voters of color - and that there is no evidence of widespread voter fraud to justify the restrictions.

In retribution for the first walkout, Abbott vetoed the portion of the state budget that funds the House and Senate lawmakers, their staffers and those working in nonpartisan legislative agencies.

However, since the Texas constitution guarantees the pay for lawmakers while in session, it appears Abbott's veto would only affect the salaries of more than 2,100 legislative staff members for the next two-year budget cycle starting Sept. 1.

The agencies impacted include the Legislative Budget Board, which develops policy and budget recommendations, and the Legislative Council, which draws maps for redistricting - a topic that will be taken up in a future special session this year. With Abbott's veto, the clock began ticking for the Legislature, because if a new budget isn't passed by September the branch will be defunded - a clear incentive for House Democrats to return and pass the other legislation Abbott included in the special session.

But, on July 12, the minority party again broke quorum, this time with more than 50 House Democrats fleeing the state to Washington D.C. The current special session, which started July 8, can last a maximum of 30 days. But the governor has no limit on the number of special sessions he can call, and Abbott has said he will continue calling special sessions until the bills he put on the agenda are passed, promising to begin the next one as soon as a day after the current one ends.

The House Democrats argue in legal filings that the governor's action violates the separation of powers and that he is wielding a political tool to coerce lawmakers into passing legislation he wants but their constituents don't.

"The governor's veto presently exerts coercive pressure on legislators to do his bidding to get their funding back," the filing read. "[Even if a new budget was passed] that would not remedy the injury to our constitutional structure: any other politics passed this special session, under these circumstances, cannot be deemed the will of the Legislature."

Abbott is not named in the court petition, because attorneys argue that he already issued the veto. The issue is whether the court decides if the veto is valid in the first place - not to repeal it.

If the veto is deemed constitutional, House Democrats warn it will set a dangerous precedent.

"People need to understand that going forward, every governor will be using this power. Every Legislative session will involve a list of demands, [and] it will be explicit or implicit that if the governor doesn't get this legislation, and then the legislature won't exist," said Chad Dunn, attorney for the House Democrats who filed the petition to the Supreme Court, in an interview. "That is dangerous stuff, and it's got to be remedied immediately."

The House Democrats also warn the state's top court: if it happens to us, it could happen to you, too. They argued in court filings that if the governor can defund the Legislative branch, a co-equal branch of government, for going a way he disagrees with, he could then turn around and do the same to the state's top court.

Abramson agrees.

"Imagine a governor that stripped Texas courts of funding as a way of retaliating against a decision the governor did not like and as a way of pressuring the courts to do his bidding," he said. "No one would think the governor had such power. But he has done the equivalent to the Legislature."

The Texas Attorney General's office - which has taken the governor's side in the fight - did not respond to a request for an interview or comment. In court filings, state attorneys pointed the finger at the House Democrats, saying they are guilty of the same thing they are accusing the governor of - holding the Legislature's budget hostage for their political goals.

The Texas Supreme Court has ruled on the power of the veto before. In 2014, then-Texas Gov. Rick Perry was indicted by a Travis County grand jury for a threat to veto $7.5 million in state funds for the public integrity unit of the Travis County district attorney's office, and questions about whether he abused his authority. But the state Supreme Court upheld the veto.

However, Dunn argues this case is different. When the Supreme Court ruled on Perry's case, it concluded that the Texas Constitution neither imposes "any restriction on veto based on the reason for the veto," nor does it "allow any other substantive limitations to be placed on the use of a veto."

Dunn says in that case, the district attorney could not prosecute the governor for issuing a veto because doing so would allow the judicial branch to infringe upon the independent power of the executive branch to exercise a veto. Dunn says the lawmakers, in this case, are arguing the same thing - that one of the co-equal branches is infringing on another.

Abbott's spokesperson declined to comment but referred The Texas Tribune to a statement issued last month.

"The governor's veto power is granted by the Texas Constitution," Abbott's press secretary Renae Eze said in a June 25 statement. "This is not the first time, and undoubtedly will not be the last time, that a governor vetoes funding for government positions and salaries. Any limitation on that authority directly contradicts the Constitution and decades of vetoes by governors.

Abbott originally justified his veto in a Tweet saying, "No pay for those who abandon their responsibilities." However, his follow-up statement from his office - as well as court filings from the Attorney General's office - seems to acknowledge that lawmakers would be paid regardless of his veto, as it is guaranteed in the Constitution.

"The Democrats' claims about the governor's veto 'canceling' the legislative branch are misleading and misguided. The Constitution protects the legislative branch, and as the Democrats well know, their positions, their powers and their salaries are protected by the Constitution. They can continue to legislate despite the veto," Eze said.

Separation of powers is baked into the state constitution, Rottinghaus said. If Abbott's veto is upheld, it could throw off the balance completely.

Charles Rhodes, a Texas constitutional law professor at South Texas College of Law Houston, agreed.

"Using the line-item veto power as a sword to make the other branches yield to his will, that's going to totally upset the original foundations of the very strict separation of power scheme that the founding fathers of the Texas Constitution of 1876 envisioned," Rhodes said.

If the veto is deemed valid, then it will likely cause permanent change to the power structures in Texas, he said.

"Sometimes, Texas is referred to as a weak governor state," Rhodes said. "But if the governor can start leveraging vetoes to control legislation and to control the courts, then our governor just became one of the most powerful gubernatorial officials of any state."

Disclosure: The University of Houston 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.

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