If Dems win, so what?
GOP-dominated Legislature could stymie policy efforts by O’Rourke, Collier, Garza
Toward the end of a virtual campaign event last month, one of Beto O’Rourke’s supporters asked how he would fulfill a key pledge: overturning the Texas ban on abortion.
The Legislature is virtually certain to remain under Republican control next year, leaving O’Rourke with no clear path to restore abortion access if he were to defeat Gov. Greg Abbott in November.
But the Democratic nominee insisted he could bring lawmakers around.
“The shock waves that it will send through this state to have a proudly, boldly pro-choice Democrat win for the first time in 32 years … will give us the political capital, the leverage we need to make sure that we can restore protections for every single woman in Texas to make her own decisions about her own body,” O’Rourke said.
He also would use “the power of the governor’s veto to stop bad ideas that are coming down the pike already,” he said.
But the proposals that most animate O’Rourke’s base — abortion rights, gun restrictions, expanded voting access — likely would face stiff resistance from Republican lawmakers, many of whom will return to Austin with no desire to rescind laws they passed as recently as last year.
Under those conditions,
O'Rourke's ability to enact core parts of his agenda would require a near-impossible level of legislative savvy, and unsparing use of the governor's limited tools to influence the lawmaking process, such as vetoing bills and budget line items, veterans of Texas politics say.
Garry Mauro, a Democrat and four-term state land commissioner who lost to George W. Bush in the 1998 gubernatorial election, said Bush worked with then-Lt. Gov. Bob Bullock and then-Speaker Pete Laney, both Democrats, by setting “invisible lines” — limits of what they would each accept under legislative compromises.
“They knew what Bush had to have. He knew what Bullock and Laney had to have. And so they did this dance of working together, so they were never forced to have real confrontation,” Mauro said. “Is Beto ‘Lyndon Johnson' enough to figure out a way to work with the Legislature to set some invisible lines? It remains to be seen if he has that much subtlety and that much political acumen.”
O'Rourke's critics say major parts of his platform would divide the Legislature along party lines — unlike Bush's focus on tort reform, overhauling Texas' juvenile justice system, and other issues that moderate and conservative Democrats could get behind.
“It's not comparable, because those leaders were trying to go accomplish the same general concepts. Beto O'Rourke is completely out of step with his more extreme liberal positions,” said former House Speaker Dennis Bonnen, an Angleton Republican who was elected to the Legislature during Bush's governorship.
“That's why, one, he's not going to win, and two,
“I think it would be such a powerful statement about the cultural shift in Texas for him to win that I think the Legislature would work with him, despite what they may say.” Rodney Ellis, on Beto O’Rourke
it would be just a politicized governorship that would do nothing for Texas,” added Bonnen, who has served as a campaign surrogate for Abbott.
O'Rourke noted that he's campaigning on a number of policies backed by some Texas Republicans, such as Medicaid expansion, increasing public education funding and legalizing marijuana.
Even on more contentious issues, O'Rourke argued he could find common ground through areas like the lack of an exception for rape and incest victims in the state abortion ban. Public polling has found that a large majority of voters believe the procedure should be permitted in those cases.
“That tells me there's some common ground there,” O'Rourke said. “And in a democracy, those representatives must ultimately reflect the will of their constituents, or they're not going to be representatives for very long. So I think there's going to be some common ground, Day One after we win, to get some of these really big things done.”
‘Cultural shift’
On paper, Texas governors have limited power to shape public policy, with no Cabinet and less control over state agencies than most of their counterparts around the country.
In recent years, though, Abbott and his predecessor, Rick Perry, have expanded their sway through sheer longevity — each staying in office long
enough to stock boards and commissions with allies. Abbott has also used disaster orders to bypass the Legislature and steer policy on border security, the state's COVID-19 response, Texas National Guard deployments, and more.
Governors can also influence how laws are interpreted and enforced, through their appointments to state boards and commissions and directives to state agencies via executive order.
But governors cannot fire even their own appointees, let alone those of former governors, meaning O'Rourke would be stuck with thousands of Abbott appointees until their terms expire.
He could appoint their replacements between legislative sessions without immediate oversight, though each appointee would eventually require approval from the Republican-majority Senate once the Legislature is in session.
O'Rourke's most potent tool to influence the lawmaking process would likely be his power to veto laws and spending he opposes, which governors have historically wielded as a powerful bargaining chip. O'Rourke said he would use that power, if necessary, to nix policies like private school vouchers, which Abbott has supported.
“Being able to stop that is incredibly important,” O'Rourke said. “But it also affords the governor leverage, in a broader sense, to bring people to the table and to make sure that we find that common ground, we get to that consensus, and we make some progress.”
Harris County Commissioner Rodney Ellis, a Democrat who spent 27 years in the Texas Senate, said some governors have overcome the office's formal limits on power through the “sheer force of their personality,” using the governor's bully pulpit to help push their agenda through. He argued that O'Rourke's “unique ability to connect with the electorate” would make him well suited to this approach.
Ellis said he also believes the Legislature — where even in recent years members have said their commitment to bipartisanship sets them apart from a gridlocked Congress — could find a way to overcome partisan divisions if O'Rourke were to win the governorship.
“I think it would be such a powerful statement about the cultural shift in Texas for him to win that I think the Legislature would work with him, despite what they may say,” Ellis said. “If the voters of Texas put Beto in, that in and of itself will be a stabilizing factor that would push Texas to go back to mainstream issues that matter to the quality of life of everyday Texans.”
O'Rourke has trailed Abbott by 5 to 7 percentage points in several recent
polls, but he is not the only statewide Democratic hopeful within single digits.
Other state offices
Mike Collier, the Democratic nominee for lieutenant governor, has trailed Republican incumbent Dan Patrick by similar margins, while Democratic attorney general nominee Rochelle Garza has generally been the closest of the three, polling within a few points of GOP incumbent Ken Paxton.
Unlike the governor, the lieutenant governor plays a central role in the lawmaking process in Texas. As the Senate's presiding officer, Patrick assigns bills to his desired committees and chooses if and when they reach the floor for a vote — essentially giving him full control over the flow of legislation.
He also appoints committee chairs and casts tiebreaking votes.
But nearly all these powers are written into the Senate rules, the 175-page policy book that requires approval from senators at the start of each session. Republicans have a supermajority on the 31-seat chamber, raising the question of how much power they would cede to Collier if he were to unseat Patrick.
“The conventional wisdom is, the lieutenant governor is the most powerful guy in the state. Except for one thing: Go read the state Constitution and tell me where that's true, because it's not,” Mauro said. “The only place the lieutenant governor gets power is if the senators vote him the power to name the Senate committees.”
A similar situation unfolded after the 1996 election, when Republicans won a majority in the state Senate for the first time since Reconstruction. The change prompted speculation that Republicans would look to strip Bullock's powers, but they opted not to after the Democratic lieutenant governor gave GOP senators more favorable committee assignments.
Under the new Texas Senate map, redrawn during last year's redistricting process, Republicans are poised to hold their current 18-seat majority and perhaps increase the edge to 19 or 20 seats. In any case, Collier would need support from at least a few Republican senators to retain the lieutenant governor's current powers if he were to win.
“Whoever the lieutenant governor is — could be Albert Einstein — if you can't count to 16 (votes), you're up the creek,” said Ellis, who was in the Senate during the 1996 power shift. “My advice, if Collier wins, would be, start meeting with the R's and D's, as a group and individually, to try to forge a consensus. And I would make the case to ask them to appeal to their better instincts: What's best for the institution?”
Bonnen, the former
House speaker, said it is essentially preordained that Senate Republicans “would still control the process completely” if Collier became lieutenant governor.
Again prefacing his remarks by saying Collier won't win, Bonnen said, “But if he were to, the Senate Republican Caucus would run the Senate. Period. Mike Collier would be powerless.”
Collier, for his part, said he would work to reach the consensus mentioned by Ellis.
“I'm campaigning as I will govern — across the state and across the aisle,” he said in a statement. “My priorities are the priorities of Texans, and I'm confident that Republicans and Democrats alike will work together in the Senate to fund our schools, fix the damn grid, and rein in property taxes.”
Meanwhile, as attorney general, Garza would also face roadblocks trying to effect change under a Republican governor and Legislature.
The former ACLU attorney has already committed to not prosecuting abortion providers or anyone seeking an abortion, if elected. But the state's top attorney does not have unilateral criminal prosecution power.
Abortions would likely remain largely inaccessible in the state because of Senate Bill 8, the law that allows private citizens to file civil suits seeking at least $10,000 in damages against anyone who “aids or abets” an abortion beyond about six-weeks gestation. The law, in combination with the trigger ban, caused the state's abortion clinics to cease providing the procedure this July.
Garza could also issue legal opinions on Republican-backed laws that she deems unconstitutional; however, this would mainly serve as a political statement since the opinions do not have the force of law.
Rick Gray, former executive assistant to Democratic Attorney General Mark White in the early '80s while Republican Bill Clements was governor, said despite their opposite parties and bitter political rivalry, the men could generally agree on the broad strokes of policy issues, and there wasn't the same political polarization at the time.
In any case, he said, an attorney general's ability to set policy is mostly in deciding which lawsuits to pursue on behalf of the state.
“The AG has virtually no power when it comes to enacting laws or things of that sort,” Gray said. “He or she has the power to express their views and to testify or send staff to testify as to why this law should be changed or why this law should be enacted, but they don't have any meaningful power in that regard.”