Thursday, March 10, 2011

The Texas Constitution: Failure by Design

In 2010, the University of Texas Press published "The House Will Come to Order: How the Texas Speaker Became A Power in State and National Politics," a book I co-wrote with Dr. Patrick L. Cox. In this passage, we describe how the 1876 Texas State Constitution was designed to prevent the passage of civil rights laws and other sweeping reform legislation.

In 1875, the Texas Legislature called for a new Constitutional Convention, the fourth in 14 years. Democrats made up more than 80 percent of the convention held that year. The delagates drew up an extremely conservative document approved by voters in 1876. Alarmed by the dramatic, progressive reforms enacted by Republicans during Reconstruction, including the expansion of civil rights for African Americans, so-called Redeemer Democrats intentionally sought to hobble the state government. The new charter dramatically reduced the power of the governor and decentralized authority in the executive branch.

Further, the Constitution reduced gubernatorial terms once again to two years (though the Constitution would be amended in the early 1970s to provide for four-year terms for executive branch offices.) Under the still-operative 1876 constitution, Texas governors lack the power to appoint a cabinet. Offices like lieutenant governor, attorney general and treasurer are elective posts, positions that can be held by the governor's political opponents.

Since 1876, Texas governors also lack the power to remove most officials in state agencies. The governor can, however, veto individual line items in appropriations bills or an entire state budget. Legislative override of a veto requires the support of two-thirds of the Legislature. This is the most substantial authority given the governor under the 1876 document.

The framers of the 1876 Texas Constitution intentionally divided power between the governor and the lieutenant governor. In fact, ever since the current Constitution was adopted, the lieutenant governor (who occupies a key post in both the executive and legislative branches) has generally been the key player in Texas politics. The lieutenant governor presides over the state Senate. Because that body writes its own procedural rules, powerful lieutenant governors have used their influence over formulation of Senate rules to expand the reach of their office. The lieutenant governor determines which committees bills are assigned to, and when, and whether they come up before the full Senate. Because the lieutenant governor appoints committees, his power to assign bills means he essentially can determine the fate of proposed legislation.

The weakness of the governor’s office built into the 1876 Constitution and the division of executive authority between the governor and lieutenant governor provided speakers of the House an opening. Unlike provisions pertaining to the governor and the lieutenant governor, the 1876 Constitution outlined few specifics regarding the speaker’s duties or powers, or limitations on that office’s authority. To strong personalities, this represented not a handicap but an open door.

In addition to the historic responsibility of maintaining order on the House floor during debates and ruling on parliamentary questions, since 1876 speakers’ main powers have been granted by the House membership and embodied in the House Rules of Procedure. Adopted by a full House vote at the start of every regular session of the Legislature, the House rules allow the speaker to appoint the chairs, vice-chairs and members of all standing committees. Like the lieutenant governor, the speaker has the power to assign proposed bills to committees. This, combined with his power of committee appointments, gives him a great deal of influence over whether a bill comes to a vote by the full House.

The 1876 Constitutional Convention also provided that the Legislature would meet only once every two years, instead of annually as in the 1869 constitution, and could incur no more than $200,000 in indebtedness. As a result of the spending cap, legislators slashed funding for schools even as they abolished the office of state superintendent of education. The Constitutional Convention specifically wrote the 1876 document to hamper government’s ability to raise revenues and launch public projects by setting strict debt limits and requiring voter-approved amendments in order to impose new taxes. As author John E. Bebout noted in 1971, the 1876 constitution “was deliberately written to prevent active government, by men who felt they had suffered from too much government and felt the need for relatively little government action, even in the field of education.”

The insistence that the state Constitution specifically detail powers, duties and limitations has rendered the still-operative 1876 charter, amended more than 400 times, one of the longest constitutions in the world. As of 2003, the Texas Constitution contained almost 86,000 words (as opposed to fewer than 8,000 words for the United States Constitution). The flaws of this Constitution reach comic proportions. “The wordy document contains misnumbered sections, misspelled words, and articles left blank,” one recent Texas government textbook notes. “One sentence contains 756 words. Some sections devoted to the same subject are scattered throughout the body of the Constitution rather than grouped in a single article.”

The new Constitution required that voters approve any enactment of an income tax, a difficult requirement bedeviling attempts throughout the twentieth century to provide adequate public school funding, as well as decent investment in universities, health care and prisons. By 2005, Texas was one of the nation’s most dependent states on sales taxes. Such taxes disproportionately affect lower income people, meaning that by the mid-1990s the poorest 20 percent of the population spent 13.8 percent of their income on various taxes while the richest 1 percent spent only 4.4 percent of their income in this way. (Only Michigan and Florida more heavily taxed the poorest 20 percent of their population, at 17.1 percent and 14 percent of annual income respectively.)

“Burdened by restrictions from another century, the Legislature has been unable fully to rise to the challenge of the present age,” concluded the Citizens Conference on State Legislatures, which was commissioned in 1973 to study the impact of the state Constitution on the effectiveness of Texas government. ” . . . [T]he present Legislature is a weakened body constrained by limited biennial sessions, by its inability to review vetoed bills after adjournment, or to call itself into special session,” the report concluded. “These limitations . . . restrict the Legislature’s power to act effectively.”


Michael Phillips has authored the following:

White Metropolis: Race, Ethnicity and Religion in Dallas, Texas, 1841-2001 (Austin:  University of Texas Press, 2006)

(with Patrick L. Cox) The House Will Come to Order: How the Texas Speaker Became a Power in State and National Politics. (Austin: University of Texas Press, 2010)

“Why Is Big Tex Still a White Cowboy? Race, Gender, and the ‘Other Texans’” in Walter Buenger and Arnoldo de León, eds., Beyond Texas Through Time: Breaking Away From Past Interpretations (College Station: Texas A&M Press, 2011)

“The Current is Stronger’: Images of Racial Oppression and Resistance in North Texas Black Art During the 1920s and 1930s ”  in Bruce A. Glasrud and Cary D. Wintz, eds., The Harlem Renaissance in the West: The New Negroes’ Western Experience (New York: Routledge, Taylor and Francis Group, 2011)

“Dallas, 1989-2011,” in Richardson Dilworth, ed. Cities in American Political History (Washington, D.C.: CQ Press, 2011)

(With John Anthony Moretta, Keith J. Volonto, Austin Allen, Doug Cantrell and Norwood Andrews), Keith J. Volonto and Michael Phillips. eds., The American Challenge: A New History of the United States, Volume I.   (Wheaton, Il.: Abigail Press, 2012).

(With John Anthony Moretta and Keith J. Volanto), Keith J. Volonto and Michael Phillips, eds., The American Challenge: A New History of the United States, Volume II. (Wheaton, Il.: Abigail Press, 2012).

(With John Anthony Moretta and Carl J. Luna), Imperial Presidents: The Rise of Executive Power from Roosevelt to Obama  (Wheaton, Il.: Abigail Press, 2013). 

“Texan by Color: The Racialization of the Lone Star State,” in David Cullen and Kyle Wilkison, eds., The Radical Origins of the Texas Right (College Station: University of Texas Press, 2013).

He is currently collaborating, with longtime journalist Betsy Friauf, on a history of African American culture, politics and black intellectuals in the Lone Star State called God Carved in Night: Black Intellectuals in Texas and the World They Made.

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