A Bill is Killed; A Star is Born
by Erica Grieder
With all the strange things that happened during Wendy Davis’s filibuster, there’s one point that has gone almost unnoticed.
It was the biggest day for Texas Democrats in a generation—people did notice that part—and it could easily have never happened.
Within the past 24 hours or so, the state’s pending abortion bill, which supporters and opponents agreed would severely restrict access to abortion services in Texas, was killed—at least for now. The entire Texas Democratic Party has apparently been reanimated. In the early hours of Wednesday morning, as senators tried to figure out what they had just done—seriously—there were still hundreds of activists packed in the capitol, singing and cheering and, probably, pinching themselves.
And Texas’s long-suffering Democrats should be excited, because for the first time in years they appear to have a realistic shot at winning a statewide executive office in 2014. Wendy Davis, the Democratic state senator from Fort Worth, vaulted to national attention yesterday over the course of a long filibuster that will go down in the state history books. She had been widely considered to be thinking about a run for governor before that, but her prospects were daunting: in a state the size of Texas, candidates generally need a lot of money and a lot of name recognition to win a top office. Davis, because of yesterday, suddenly has both–not to mention a lot to talk about on the trail. She is rapidly becoming the most powerful Democrat in the state since Governor Ann Richards, who was elected in 1990 and is the last woman or Democrat to hold that post.
But let’s begin at the beginning.
At hand was the old workhorse of the culture wars: abortion. On June 11th, Governor Rick Perry added that issue to the list of topics legislators could take up during the 30-day special session that would end June 25th, at midnight. (Per Texas law, the Lege can only deal with issues specified by the governor during a special session.)
The announcement was a blow to pro-choice Texans (who are the majority in Texas, as in most states). Several abortion restrictions had been proposed during the regular legislative session, which ran from January through May. The Senate had summarily blocked them from being taken up, using its longstanding two-thirds rule.
The Senate had already decided to scrap the two-thirds rule for the special session, though; that was the first thing that was decided when the special session started (less than an hour after the regular session ended). Any abortion bill would only need a simple majority to be heard in either chamber, and both houses of the Texas Legislature are controlled by Republicans. And the abortion bill that emerged, SB-5, was a doozy. Planned Parenthood warned that it would effectively ban abortions in Texas by forcing the closure of most of the clinics that provide the service–a warning that could hardly be seen as an exaggeration, given that it was retweeted, proudly, by Lieutenant Governor David Dewhurst.
That tweet, which became slightly notorious over the past week, came after the Senate passed the bill on June 18, after a five-hour floor debate (a full hour of which was dedicated to Davis’s questioning the author of the bill, Katy Republican Senator Glenn Hegar.) Grassroots organizers, concerned about the few remaining impediments to the bill’s passage, urged opponents of the bill to come testify against it before the House State Affairs committee. And so they did, in droves. Hundreds of people signed up to testify over the course of the 11-hour committee hearing. Just after midnight, about seven hours into testimony, Rep. Byron Cook, a Corsicana Republican, told the crowd that he was only going to allow one more hour of testimony on HB-60, the House companion to SB-5. “The testimony has been impassioned, but it has become repetitive,” Cook said. The roar of disapproval was so loud that the hearing was briefly paused, and the sound on the livestream was cut out for those watching at home. Ultimately, several more hours of testimony were allowed, but several hundred people who had signed up to testify were denied the opportunity to be heard, and those engaged in the “citizen filibuster” were left with a sour taste in their mouths–until last night, that is.
The House passed SB-5 on Monday, June 24, around 11 a.m., following a night of debate that ran past three in the morning. The bill that returned to the Senate was more draconian than the earlier incarnation; it included a “fetal pain” provision that would have banned most abortions after 20 weeks.
Still, Senate Republicans had enough votes to pass the bill. Senate Democrats, then, were the last people standing between Perry and the bill, and the only chance they had to block it was via filibuster.
That they pulled it off was astonishing. The Texas Senate’s filibuster rules are even more draconian than those in, say, the abortion bill at hand. It’s a grueling test of physical endurance: The person giving the filibuster can’t sit, can’t lean, can’t have any food or water, and can’t leave the immediate area around their desks for any reason.
It’s also a rhetorical high-wire act. The rules say that other senators can raise points of order on a colleague’s filibuster if, for example, they think their colleague is getting help from another senator, or has started talking about something not “germane” to the topic at hand. If three points of order are sustained by the Senate’s presiding officer, the body gets to vote on whether to end the filibuster.
Despite those challenges, Davis sailed through the first five or six hours of her filibuster. She spent much of the time reading testimony from witnesses who hadn’t had a chance to testify during the aforementioned House hearing. That was a smart approach. Not only was she reviewing the many arguments that had been made against the bill, every letter underlined an argument Democrats had offered in the House: if this bill was so important to Perry and the Republicans, they should have made it in the regular sessions, rather than trying to muscle it through without having a full and public debate.
But there were a couple of hurdles looming for Davis. First, Senate Republicans were determined to hold her to the strictest possible interpretation of the rules. Secondly, Senate Republicans weren’t going to be so strict with themselves.
The first hurdle became clear in the early evening when Tommy Williams, a Republican senator from The Woodlands, raised a point of order: Rodney Ellis, a Democrat from Houston, had helped Davis put on a back brace. That counted as comforting and assisting her during the filibuster, which is against the rules.
Senate Democrats were incredulous about the hard-line approach (and had a chance to say so, because senators are allowed to debate a point of order). Ellis recalled that during a filibuster in the 1970s other members made a circle around the senator giving the speech, like water buffalo defending their young, so that he could relieve himself in one of the chamber’s wooden wastebaskets. John Whitmire, a Democrat from Houston, confessed that during previous filibusters he had sometimes comforted and assisted his colleagues, even if he didn’t agree with them, by slipping them candy or ice chips.
Republicans were unmoved. Williams’s point of order, the second of the evening, was sustained. The filibuster continued. It was still about four hours until midnight, and if one more point of order was sustained against Davis, the whole effort would crumble: after three sustained points of order, the Senate gets to vote on whether to end the filibuster.
While all of this was going on, Davis had been winning supporters by the hour, as Texas, and then the rest of the country, started to notice that the normally staid Texas Senate was having a dramatic day. “Meet Texas Senator Wendy Davis,” read the headline on a New Republic piece. And that’s exactly what her 10-hour filibuster did–it introduced her to the nation. Throughout in the day, Davis found support on Twitter from heavyweights including Nancy Pelosi, Julianne Moore, Lena Dunham, and, Judy Blume. Later, when “Wendy Davis” was trending worldwide, her filibuster even won a nod from the president’s Twitter account. “Something special is happening in Austin tonight,” the tweet said. Davis’s Twitter followers would explode exponentially over the course of the day, from around 2,000 on Tuesday morning to more than 78,000 followers 24 hours later–and it’s worth pointing out that her campaign contributions will likely see a similarly explosive uptick.
The basic numbers of the Senate, however–19 Republicans and 12 Democrats–hadn’t changed, though, and the mood in the chamber was as you would imagine, tense. The gallery was full of hundreds of spectators, most of them wearing orange to show opposition to the bill. (The line of people hoping to get in would eventually coil around the rotunda). Still, Davis had no room for error, and though her voice remained clear as she continued, her pace slowed. The first point of order had come from Republican Robert Nichols, who had argued that her reference to the state’s defunding of Planned Parenthood was “not germane”–an argument that Dewhurst, as presiding officer, had found convincing. Now Davis was weighing her words carefully so Republicans couldn’t pounce on her for something silly.
She succeeded, but they pounced anyway. The next point of error came from Donna Campbell, a Republican from New Braunfels. Davis, Campbell noted, had been talking about Texas’s 2011 sonogram bill. That was, in Campbell’s view, not germane.
By this point, there were more than 100,000 people watching the filibuster on livestreams, and many of them may have been surprised by the suggestion that Davis’s discussion of Texas’s sonogram bill was not “germane” to the topic at hand, which was a bill concerning the abortion facilities and practices in Texas. One Republican senator, in fact, later said that he thought Campbell’s point was “sketchy.” Other Republicans, however, were weighing the meaning of the word “germane” against their desire to end the filibuster and pass the bill. Dewhurst sustained Campbell’s point of order.
It was about 10 p.m. The situation seemed hopeless for Democrats; the gallery was teetering between outrage and despair. Then Kirk Watson, a Democrat from Austin, jumped in: Was Dewhurst’s point of order subject to debate? Because if so, he wanted to debate it.
The debate that ensued was so pedantic that by the end no one, including the senators having the debate, could follow it. That was, of course, the strategy. Davis’s fellow Democrats didn’t have the votes to stop the bill. They didn’t have the authority to interpret the rules. But they did have decades of Senate experience between them, and every time they asked a question, they were inching a minute or two closer to the midnight deadline. And so the long-serving Democrats of the Texas Senate white-knuckled it until nearly midnight.
And then the citizen filibuster returned with a vengeance.
The people watching in the gallery had been warned several times, from the dais, that the Texas Senate has a tradition of decorum, and at several points during the long day, protesters had been removed for outbursts. Those who remained were restive.
The tipping point came at about a quarter to midnight. Leticia Van de Putte, a Democrat from San Antonio, was trying to make a motion to adjourn. Robert Duncan, a Republican from Lubbock who had taken over at the dais for Dewhurst, was trying to take a roll call in response to Houston Republican Dan Patrick, who had moved to consider the bill at the same time time that Van de Putte started making a motion. And Van de Putte refused to pipe down, although Duncan told her she had to: Patrick, he said, had been recognized.
But Van de Putte, who had returned to Austin that evening after spending most of the day in San Antonio attending her father’s funeral, had had enough. “At what point does a female senator have to raise her hand,” she asked, “in order to be recognized over a male senator?”
The outpouring from the people watching, in response to that question, was unlike anything anyone could remember seeing in the Texas lege. The cheering in the gallery was deafening and sustained. It was boosted by hundreds of people outside the Senate chamber, who had been trying to keep track of developments via text and Twitter. The Republicans were trying to keep moving on the bill, but they simply couldn’t hear each other. The Democrats, who had gone to stand with Davis, encouraged the crowd, by flashing two fingers at the gallery–in the Texas Senate, two fingers means you’re voting “no”—and, as the minutes ticked by, five fingers: it was five minutes until midnight, and the death of the bill. Republicans rushed to the podium and frantically tried to vote on the bill there, shouting at each other. But the last minute had already elapsed. Around three in the morning, after several hours of backroom debate, rumors, and even shenanigans, Dewhurst went to the podium for the last time: the vote on SB5 took place after midnight, and so it didn’t count. And so the people of Texas, who had been cut off at the committee hearing, had the last word.
Republicans were apoplectic. Dewhurst, who said a few clipped sentences to reporters after the Senate finally called sine die on the special session, called the protesters an “unruly mob.” And it was, certainly, an unusual way for Davis’s filibuster to end.
Still, it would be hard to argue that Democrats had flouted the rules or traditions of the Texas Senate harder than Republicans did. The whole drama had started, thirty days previously, with the Republicans’ decision to get rid of the Senate’s two-thirds rule. And it only ended after Democrats held the Republicans to the rule that midnight still means midnight, even in the Texas Lege: Chuy Hinojosa, a Democrat from McAllen, made sure that everyone saw two printouts of the time-stamped record vote: the first version, which showed that the final vote on SB-5 happened on June 26, and the later version, where the date had mysteriously been nudged back to June 25.
As for the abortion bill, it may rear up again. Perry is widely expected to call a second special session, if only to deal with transportation funding and juvenile justice, the subjects of two bills that were pending in the Senate yesterday but died at midnight along with the abortion bill. He could, at that point, add abortion to the call, and another abortion bill would almost certainly go through. The Republicans do, after all, have the votes to pass it.
But there’s reason to think that Perry might quietly take a pass on reviving the issue. There are a number of issues where the Texas legislature is more conservative than the people of Texas as a whole, and women’s health is one of them. After the events of the past week, Texas Republicans have to realize that. They were, notably, largely quiet on the subject yesterday. Perry didn’t even send out a press release about the Senate fight, nor did he get drawn into the biggest Texas political showdown of the year on Twitter. For that matter, a lot of Texas Republicans–other than the ones in the Senate, and a delegation of House representatives from Tarrant County, which is Davis’s area–steered well clear of the debate. We might look back at yesterday as a pivotal moment in Texas politics: the moment when Republicans once again realized they might have to compete with Democrats, rather than Republicans farther to their right.