Analysis: Choosing the next Texas House speaker is a game played by very fuzzy rules

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It’s hard to say whether anyone has ever violated the Texas law informally known as the speaker statute. In all the years it’s been on the books, nobody has ever been formally charged with a transgression.

The gist of the law is that only a “speaker candidate” can spend money and take contributions, loans or promises of funds to advance their candidacy.

But the law takes a somewhat twisted path. Here’s the definition of a contestant: “'Speaker candidate' means a member of or candidate for the house of representatives who has announced his candidacy for or who by his actions, words, or deeds seeks election to the office of speaker of the house of representatives.”

The logic is that if you’re doing those things, you have to declare your candidacy, and once you’ve done that, two things happen. First, everybody knows you’re in the pool. Four members of the House have filed so far: Phil King, R-Weatherford; John Zerwas, R-Richmond; Tan Parker, R-Flower Mound; and, as of Tuesday, Eric Johnson, D-Dallas.

The second thing is that declared candidates have to file campaign finance reports every two months until they either drop out or the speaker election is held at the beginning of the next legislative session in January.

The twisty part is deciding when a candidate has crossed the line between talking to people about whether to run and actually becoming a candidate.

Until a candidate is declared, they have to have other explanations for doing the things speaker candidates do: Traveling around the state talking to the members of the House — and candidates for the House — who’ll elect the next speaker. In essence, they have to be in someone’s office or hometown talking to them for some other plausible reason.

Translated practically, that leaves representatives a lot of room to explore their chances before they declare — an opportunity to fly under the wire as they find out whether to out themselves as candidates.

“Obviously, you can do quite a bit in terms of just checking the water,” says Austin lawyer Buck Wood, who was working on ethics legislation at the time the speaker statute was enacted — and who says he didn’t have anything to do with that law, which he considers somewhat vague. “Until you tell someone you’re running, it’s very difficult to say you have to file. Just going out and giving speeches doesn’t get you there.”

A number of potential candidates have been mentioned or have said they might consider a run. They have time to ponder it, but the four declared candidates have the advantage of being able to actively seek support, while the shadow candidates are somewhat constrained.

The rest of us don’t vote in speaker races, and most voters don’t seem to give much thought to who’s leading the House from one legislative session to the next. Outside groups and lobbyists and other insiders obsess about it, though. During a session, speakers, like lieutenant governors who run the Senate, can make or break legislation. They decide who sits on and who heads the committees that consider bills. They control the flow of legislation. If getting bills passed or killed is your livelihood, the speaker is a critical gatekeeper. There’s a lot at stake.

Voters are interested in legislation, but not so much in process. In the February 2018 University of Texas/Texas Tribune Poll — a survey taken nine years after Joe Straus became speaker — nearly half of Texas voters still had neither a positive nor a negative impression of him. Just over 30 percent could say the same about Lt. Gov. Dan Patrick, who has only been in that office for three years. The voters elected Patrick. The House elected Straus.

But a lot of people want a say in who succeeds him, which brings us to this interesting tidbit — a “beeswax clause” from the speaker statute: “An elected officer or employee of the executive or judicial branch of state government may not contribute personal services, money, or goods of value to a speaker candidate's campaign.”

Translation: Governors and other statewide officeholders and appointees can’t play. State employees, for the most part, can’t play. The speaker’s race is, to put a playground term to it, none of their beeswax.

In a Texas Capitol where, last year, several key bills got tangled up in differences between the House, the Senate and Gov. Greg Abbott’s office, it would be natural to think the other players would want a speaker who will play nice next session. Straus was often a foil to Abbott and to Patrick last session. It’s safe to say they’d prefer someone more likely to say “yes” than “no” when they’re looking for support.

They’ll have to find someone to intervene on their behalf. First, they’ll have to figure out who’s really a “speaker candidate.”