Analysis: Texas Republicans deciding where to go on bathrooms

Texas Elections 2018

U.S. Sen. Ted Cruz defeated Democratic challenger Beto O'Rourke in the race for U.S. Senate. View full 2018 Texas election results or subscribe to The Brief for the latest election news.

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Lt. Gov. Dan Patrick and Gov. Greg Abbott have figured out how to make mainstream Republicans a splinter group in their own party. Or maybe it’s the other way around: The party’s traditional establishment has slipped out of the mainstream and is just now coming to realize what a pickle it’s in.

The “bathroom bill” is popular with social conservatives, who are loud and energetic about it, and not with business conservatives, who have been quiet and passive for most of the year. The lieutenant governor is on the side of the social conservatives. Abbott was late to the game, but he joined in with Patrick by resurrecting the issue for consideration during the special session when the business community would have preferred leaving it in the legislative mortuary.

Now that the issue has resurfaced, that conservative old guard is showing a sign or two of life, and the Texas Legislature’s special session offers voters some foreshadowing of the Republican cage match coming in the party’s 2018 primaries.

The prompt, you might remember, was a directive from the Obama administration’s Department of Education on how public schools might handle restroom and locker room access for transgender students. That guidance has since been rescinded by the Trump administration, but Patrick and other advocates have forged ahead anyway, trying to override school districts and other local governments with a state policy requiring people to use the facilities designated for their "biological sex."

It’s been politically rewarding in spite of their lack of success in making it the law of the land. Patrick latched onto a powerful issue — for Republican primaries, at the very least. With the notably persistent exception of House Speaker Joe Straus, that issue set the state’s conservative business establishment on its heels, sticking Republicans in the Legislature with a dilemma: Vote for your business supporters or for your socially conservative constituents.

Straus bugled for help early in the year, saying the state needed to protect its economic successes. "If you are concerned — I know many of you are — now is the time to speak up," Straus told members of the Texas Association of Business (TAB), which had taken a position against the bill.

For whatever reason, their backing was more private than public during the regular legislative session.

Between January and June, while Patrick was trying to gain enough support to get his pet through the Senate and also Straus’ House, business appeared to be asleep at the switch. A group of top execs from Amazon, Apple, Celanese Corp., Cisco, Dell Technologies, Facebook, Gearbox Software, Google, GSD&M, Hewlett Packard Enterprise, IBM, Microsoft Corp., Salesforce and Silicon Labs eventually sent a letter to state leaders objecting to what they saw as discriminatory legislation. It landed on the last weekend of the session, when the bill’s demise was already all but certain — more a punctuation mark than a game-changer. But it was a sign of opposition to come.

Patrick couldn’t get his version of that legislation out of the regular session, and forced a second round by blocking consideration of must-pass “sunset” bills needed to keep five state agencies in operation.

Now, the business establishment is making its presence known in a way it failed to do during the regular session earlier this year. TAB last week brought a gaggle of business leaders to the south steps of the Capitol — the regular gathering place for protests — to talk about their opposition to the bill and their assertion that it would cloud the state’s business climate. On Tuesday, several big-city law enforcement leaders — presumably the people who’d be policing the potties if the legislation passes — spoke against it from that same location.

TAB and others have peppered lawmakers with letters from regional business leaders who oppose the legislation, including some notable conservatives who’ve backed the same state officials promoting it. 

A sprinkling of prominent Republicans have decided to speak out against the “bathroom bill,” too, including Denton County Judge Mary Horn and Michael Williams, a former Texas education commissioner and railroad commissioner.

“Spending time on this during a legislative session is time wasted trying to solve a problem that does not exist,” Horn wrote in a public letter to Abbott, Patrick and Straus. “There are already laws on the books protecting individuals from all criminal acts. Focusing attention on this issue wastes time, money, and is bad for Texas.”

Williams was more informal about it. “35 years ago when I ‘came out’ as a Republican it never crossed my mind my party would some day worry about what bathrooms people used,” he wrote in a Sunday afternoon tweet.

Those voices were muted earlier in the year and might provide some cover for lawmakers opposed to the “bathroom bill” now. But this is all prelude to the March primaries, when Republican voters will get a chance to say what side they’re on — and to identify the GOP’s real mainstream.

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