How to kill a bill in 140 days (or less)

The air in Austin is just starting to hint at the promise of summer. But in the Texas Capitol, a bleak, cold winter is coming.

Bills that once blossomed with hope are withering quickly as crucial deadlines approach for the 85th Legislature. 

The fate of most will not be determined by an up or down vote on the chamber floor or by the governor’s veto pen, but as a result, either by accident or choice, of calendar rules — a tightening series of deadlines as the final month of a regular legislative session counts down.

The Texas legislative process is set up that way by design — bills are easy to kill and hard to pass. Of the 6,276 bills filed in 2015, just 1,323 reached the governor’s desk.

This session’s most controversial measures — Senate Bill 4, which would outlaw “sanctuary” jurisdictions in Texas, and Senate Bill 6, which would require transgender people to use bathrooms in publicly-owned buildings that match their “biological sex” — have so far moved through the process unscathed. But the more days that pass without progress, the more susceptible they’ll be to the maneuvers of opponents and the hard rules of the clock. 

As for the roughly 6,600 other bills that remain — only three have passed at this point — most will officially meet their end in the next 26 days.

The first major die-off of the session will happen Monday — the last day that House bills can make it out of that chamber’s committees. Then the scramble among lawmakers and lobbyists to pass — and kill— bills will reach its height.

Here is a brief guide to the legislative dark arts of bill-killing. Practice them at your peril.

Run out the clock

The Legislature’s most lethal killer is quiet and mundane. Call it death by a thousand delays. All of the most dramatic bill-killing tactics — the filibuster, “chubbing” and points of order — derive their power from the deadlines imposed by the calendar.

Every crank of the legislative process provides a new opportunity for opponents to jam up a bill’s progress. Let it languish before getting referred to a committee, where it may or may not get a hearing. If it finally gets a hearing, then maybe it never gets a vote.

If it clears a committee, it lands in either the calendars committee (House) or has to get onto the intent calendar (Senate) — where its opponents have ample chances to call in favors with members to stall the bill for a few more days.

Made it through one chamber? Great. Repeat all of that a second time, with a second set of players in the opposite chamber. If the two chambers disagree on the substance of the legislation, then the bill is headed for conference committee — yet another time-consuming stop.

All of this delay makes legislation vulnerable to factors that may not have anything to do with it — say, a tiff between two committee chairmen — as key deadlines approach.

The dynamics of the calendar have an “accordion effect” that puts every bill at the mercy of larger forces, said Bill Miller, a longtime political consultant and lobbyist.

“Big bills moving or not moving or getting halfway through and taking up the whole day and then getting killed, they are very destructive to everybody and everything,” he said.

During the 2015 legislative session, it took the House until the day before a key deadline to schedule a bill from state Rep. Cecil Bell, R-Magnolia, that banned local governments from using public funds to issue same-sex marriage licenses. Democrats were able to successfully prolong debate on other matters so that the legislation officially died at the hands of the clock. The more than three dozen bills waiting to be heard after it were collateral damage.

That tactic, known as “chubbing,” is a cousin of the filibuster, which, like all calendar-related strategies, only really work if the governor is unwilling to call lawmakers back for a special session to finish the job. 

Make a powerful friend

The obvious choices: the governor (veto pen), or the lieutenant governor and speaker of the house, who control committee referrals and various mechanisms to stop bills from getting floor votes.

But the further a bill gets in the process, the harder it is to stop. So why not start with cozying up to the committee chairmen? If they can’t prevent a bill from seeing the light of their committee room, they can schedule it later in the session, steadily increasing the chance it will die of natural causes.

If that fails and the legislation reaches the House or Senate floor, just about any lawmaker willing to stand up and ask questions qualifies as a powerful friend. A series of pointed questions has the potential to sway enough of their colleagues to vote against a bill, especially if it’s an obscure one.

Sometimes that can be so effective that it can force lawmakers to pull down their own bill.

That happened in 2007, when debate over legislation providing protection for historical monuments erupted into a bitter battle over confederate statues. The bill’s author, then-state Rep. Sid Miller, R-Stephenville, said he had filed it to protect historic buildings on university campuses from being renamed after big donors.

But after House Democrats began pointing out that the bill would obstruct the renaming of confederate monuments — and began proposing amendments to ban memorials to atheists, slave-owners, and terrorists — Miller removed it from consideration.

The incident prompted an apology on the House floor from State Rep. David Swinford, R-Amarillo, the chair of the committee that voted it out.

“This was never intended to be like this. We had no intention of putting anything this divisive on the House floor, and I apologize,” he said.

Use old-fashioned persuasion — or lack thereof

The fast and furious pace of the Legislature means that lawmakers will inevitably be forced to rely on their colleagues to figure out how to vote on the bills they haven’t had the time or the desire to read. Between when a bill gets a committee hearing and when it hits the governor’s desk, its fate boils down to a numbers game (if it manages to survive the calendar's gauntlet).

The hardest bills to pass, said former state Sen. Ken Armbrister, who served in the Legislature for 24 years before becoming Gov. Rick Perry’s legislative director, are the ones with statewide impact.

“Because what works in El Paso may not work in Texarkana. What works in Amarillo may not work in Brownsville,” he said.

If you don’t want a bill like that to pass, all you have to do is find enough members who are concerned about how it might affect their district. That’s easiest done at the committee level, where you usually only have to deal with seven to nine lawmakers, or in the Senate, where 19 of the 31 senators must sign off before a bill even gets on the calendar.

But it can happen on the House floor, too — particularly if a bill’s sponsor appears unprepared or unknowledgeable in answering questions.

“In a close call, you are going to get hard questions, and consistently hard questions from a variety of people,” Bill Miller said. “And if you are shown to not quite be on top of it, or if you miss the points and subtleties that they are trying to make, you are going to lose the votes.”

Weaponize parliamentary procedure

The power of this tactic directly corresponds to the number of days remaining in the session. With the right deadline looming, what might have been a pesky inconvenience at the start of the legislative session turns into a weapon of mass destruction.

A maneuver frequently used in the House involves a lawmaker calling a “point of order” during debate on the floor. If the Speaker sustains the point of order — which identifies an overlooked violation of procedural rules — consideration of the bill is delayed until the error is fixed. If that sends bills back to committee late enough in the session, it’s a death sentence.

In the waning days of the session, the point of order doesn’t even have to be on the bill you want to kill. Perhaps there’s a bill important to House leadership ahead of yours on the calendar. You can call a point of order, stalling the favored bill, then withdraw it when you strike a deal to nix the bill you want to stop.

“If votes are a commodity on the floor of the House, the use and knowledge of rules is like political gold because you could have all the votes in the world, but if one person says not today, and they can back it up, it doesn’t happen,” said former state Rep. Trey Martinez Fischer, a San Antonio Democrat who was the minority party’s primary procedural bomb thrower during the last six of his 15 years in the House.

While mighty, this strategy does have its drawbacks. To deploy it, you usually have to be willing to spend long hours following a bill, poring over every document associated with it at every point of the legislative process. And there is no guarantee that the Speaker will agree to sustain a point of order — even if it’s legitimate.

Then again, sometimes all it takes is being in the right place at the right time. Former state Rep. Tommy Merritt, R-Longview, once snatched a point of order from under a Democratic colleague’s nose.

It was on a 2007 bill banning in-state tuition for undocumented students. Democrats wanted to stop it, and according to Merritt, then-Speaker Tom Craddick, R-Midland, was okay with that as long as Republicans were forced to vote on the issue first. It was a vote that Merritt, who opposed the bill, knew could be used as ammunition against lawmakers in future elections.

As Merritt walked by the dais where negotiations over the bill were underway, he realized he could see the point of order prepared by Democrats lying in plain view.

“So I read the copy of the top of the point of order, and I jotted down the best I could, and while they’re all up there discussing how they are going to cut us up, I go to the back mic,” Merritt said.

Merritt raised the point of order before anyone knew what was happening. And the bill died that day — without a record vote.

Inject a poison pill (for advanced levels only)

The concept is to attach an amendment to a bill that is so distasteful to so many lawmakers that it prevents it from passing. Though it seems simple enough, legislators hoping to kill by this method must have both policy and political chops.

They must understand the contents of a bill well enough to propose a plausible amendment, and it should use language that is innocuous at first blush — until their colleagues figure out the amendment’s true consequences. It is most easily deployed as legislation moves between chambers — and it has probably claimed more accidental than intentional casualties.

An example that is a hybrid of a poison pill and parliamentary play comes from former state Rep. Mike Villarreal, D-San Antonio. In 2005, the House was set to vote on a constitutional measure capping property tax appraisals. Villarreal knew the bill’s author was planning to shore up support by fixing a number of issues in the bill through amendments, so Villarreal figured out a way to force a vote on the controversial bill before that could happen.

He decided to target the resolution’s “enacting clause,” a single line that must be on every piece of legislation. He knew that under House rules, any amendment to remove that clause would have to be considered first. 

“It brought clarity — it was, do you want to do this or not, here’s why it’s a really stinky idea and we are having an up-or-down vote,” Villarreal said. “I explained exactly what I was doing, there were no surprises. I was killing the enacting clause in order to have a vote, up or down, on this fundamental policy change.”

Villarreal’s amendment was adopted. Then another lawmaker promptly called a point of order on the bill.

The reason? It lacked an enacting clause.