March 23, 2003
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Tort Reform Reveals Fractured House

Last week’s protracted and contentious debate on H.B. 4, the combined medical liability and general tort reform legislation, probably would not have had lasting impact on the House but for the way it abruptly ended: with a point of order, clearly held back for two full days, complete with photographic evidence and an affidavit from a committee member who partook in an alleged illegal committee meeting.

Long-time observers of the Legislature could not remember a similar occurrence in the past. Faced with the prospect of returning H.B. 4 to committee and starting the entire debate again, Speaker Tom Craddick decided to allow the House itself to rule on the point of order—a procedure authorized by but rarely invoked under the House rules. For three long hours, the House alternately stood at ease in confusion or awkwardly debated the point of order, unsure of the ultimate fate of the bill. Finally, House Civil Practices Committee Chair Joe Nixon, the author of H.B. 4 and supposed violator of the House’s open meetings rule, moved to recommit H.B. 4 to committee. The bill was recommitted and quickly reported again, in time to be set on Tuesday’s House calendar for renewed debate.

This parliamentary maneuvering in itself is not surprising. Lacking the votes to amend or defeat the bill outright, H.B. 4’s opponents were expected to delay the final passage of the bill for as long as possible. More than 300 amendments were proposed, only about 60 of which were considered before the fatal point of order was raised. It is likely that at least that many amendments will again be filed before H.B. 4 is taken up again on Tuesday. Indeed, other points of order may well be raised against the bill before all is said is done.

What is somewhat surprising—and disturbing for the future proceedings of the House—is the bitter and divisive way in which the point of order was presented. Representative Jim Dunnam (D-Waco), a floor leader for the opposition, produced an affidavit signed by committee member Rep. Yvonne Davis (D-Dallas) that an illegal closed meeting of the committee had occurred, thus rendering further consideration of the bill out of order. In addition to this rarity, Dunnam also possessed a videotape of the illegal meeting itself, which was subsequently turned over to the Travis County District Attorney for criminal investigation.

Just what is going on here—and why should we worry about it? First, the confusion with respect to the ruling on the point of order has raised questions about the leadership’s control over the process itself. Specifically, the Speaker’s initial determination that the House should debate the issue appeared to some as indecision, a failure to enforce a clear, if inexpedient, violation of the House rules. As an institution, the House operates on the basis of a trust in the process, a process that protects each member equally and must be respected. Once that trust is breached, the House becomes little more than a clash of contending interests, each attempting to co-opt the process for its own purposes. That is probably the Speaker’s greatest responsibility and trust: to preserve the integrity of the process and protect members in their districts.

Second, the acrid quality of the debate reveals a deep divide in the House between the new majority and the old. It is more than a partisan issue, since several Republican members split from the majority on H.B. 4 and voted consistently with the minority on key amendments. To put it plainly, the problem is that there are too many talented veteran lawmakers with too little to do. Bereft of their important committee assignments, these members are reduced to a kind of guerilla warfare, expressing some of their disaffection through delay tactics designed to bring the House proceedings to a standstill. If it sounds familiar, it’s what happens in Congress every day.

By the same token, the newer members, including a large number of freshman legislators elevated to leadership roles, simply don’t yet have the experience to match parliamentary wits with the old leadership. This inexperience partially explains the tortured and meandering nature of the two days of debate on H.B. 4. However, this will change rapidly—maybe as soon as this week—as these members gain a better understanding of the process. Nevertheless, the relative inexperience of the Speaker’s floor leadership may well become a critical factor as the House approaches the major issues still ahead: the budget, taxes, and school finance.

It remains to be seen whether last week’s H.B. 4 debacle will have a permanent, adverse impact on the rest of the session. Since no one can remember a scene like it, no one has a proper frame of reference. What appears certain is that H.B. 4 will ultimately pass the House in essentially its current form, although it faces an uncertain future in the Senate. There Senator Bill Ratliff (R-Mt. Pleasant), chair of the Senate State Affairs Committee, plans to hold at least two weeks of hearings on the bill, giving it a once over that many complain was not done on the House side (although 20 hours of debate so far would seem to belie that claim). Some House members are unhappy that they are being forced to vote over and over again on controversial issues that could hurt their re-election chances, especially in view of the likelihood that the Senate will drop many of those issues from the bill. That, too, may create resentment between the two bodies, with unknown consequences for the remaining 70 days of the session.